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Muthammal Vs. the Secretary of State for India in Council Through the Collector of Tinnevelly - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1915Mad106; (1914)27MLJ529
AppellantMuthammal
RespondentThe Secretary of State for India in Council Through the Collector of Tinnevelly
Cases ReferredGokul v. Shrimal
Excerpt:
- - brojeswari chowdranee .it has probably never been better laid down than in a case which was referred to in gregory v. in bigelow on estoppsl, after a full examination of all the english and american authorities, it is stated 'a former judgment or verdict on the other hand, is conclusive between the parties to contested' causes (as has already been intimated) of all necessary inferences arising from it, as well as of the matters actually in issue. 1. it is clear, i apprehend, that a judgment of the court of common law is not only conclusive with reference to the actual matter decided, but that is also conclusive with reference to the grounds of the decision, provided that from the judgment itself the actual grounds of the decision can be clearly discovered......act xxviii of 1860 in the year 1880, when the boundary settlement officer found that the lands in question had never formed part of the area of the mitta and accordingly excluded them. the proprietor of the mitta did not contest this decision by filing a suit under section 25 of the act as he might have done. in this circumstance the decision of the boundary settlement officer that the lands in question did. not form part of the zemindary is res judicata according to the decision of the full bench in kama raju v. the secretary of state for india i.l.r. (1887) m. 309 and i think that the ground of the decision, viz., that they never had formed part of the mitta is also res judicata as having formed the ground of decision. the subordinate judge was therefore right in dismissing.....
Judgment:

John Edward Power Wallis, Kt. Officiating C.J.

1. In this case the plaintiff sued to recover certain lands which she alleged to form part of her Mitta and to have been wrongfully taken possession of by Government, and in the alternative for a reduction of the peishcush paid by her for Fasil 1317 proportionate to the extent of the lands which had been taken fr6m her. The boundaries of the mitta and the adjoining Government lands were delineated under the Boundaries Act XXVIII of 1860 in the year 1880, when the Boundary Settlement Officer found that the lands in question had never formed part of the area of the Mitta and accordingly excluded them. The proprietor of the Mitta did not contest this decision by filing a suit under Section 25 of the Act as he might have done. In this circumstance the decision of the Boundary Settlement Officer that the lands in question did. not form part of the Zemindary is res judicata according to the decision of the Full Bench in Kama Raju v. The Secretary of State for India I.L.R. (1887) M. 309 and I think that the ground of the decision, viz., that they never had formed part of the Mitta is also res judicata as having formed the ground of decision. The Subordinate Judge was therefore right in dismissing the plaintiff's suit on this ground. In the view I take of the case, the question whether the Court is precluded by the terms of Section 58 of the Madras Revenue Recovery Act II of 1864 from entertaining the plaintiffs' claim for a return of proportionate peishcush for the fasli in question, as to which there was a difference of opinion between the learned Judges who heard the appeal does not arise. The appeal fails and is dismissed with costs.

Ayling, J.

2. I agree.

Seshaghiri Aiyar, J.

3. I entirely agree with my Lord. I only wish to say a few words with reference to the argument of Mr. Govindaraghava Aiyar that the decision of the survey officer in 1880 under Section 24 of Act IV of 1897 is conclusive only as regards the actual decision arrived at in the case namely, that the lands claimed belonged to the Government and not to the Mittadar. I am unable to uphold this contention. Exhibit III, the petition to Mr. Baber, sets out the ground on which the claim was made : It says that prior to the sale of the mitta to the claimant's transferor, the mitta included the lands in dispute, and that at the sale in 1868, they passed to the purchaser. These were the questions which the Survey Officer had to decide. He did decide them although he did not raise the points in the form of specific issues. Section 24 of the Boundaries Act says that such a decision is final subject to its being contested in a Givil Court within a specified time. It is conceded in this case that no suit was filed within the time limited. The decision is therefore binding upon the parties whether it is res judicata in the technical sense in which the term is used in the Civil Procedure Code or not; the general principles enunciated in Section 11 of that Code are of universal application. The question under that section will be whether a matter was substantially in issue and not whether it has been formally in issue. It was pointed out by the Judicial Committee of the Privy Council in Krishna Behari Roy v. Brojeswari Chowdranee . 'It has probably never been better laid down than in a case which was referred to in Gregory v. Molesworth (1747) 3 Atkyns 626. Order 26 E.R. 1160 in which Lord Hardwicke held that where a question was necessarily decided in effect, though not in express terms, between parties to the suit, they could not raise the same question as between themselves in any other suit in any other form; and that decision has been followed by a long course of decisions, the greater part of which will be found noticed in the very able notes of Mr. Smith to the case of the Duchess of Kingston.' In Narayanan Ghetti v. Kannammai Achi I.L.R. (1901) M. 838 the learned Judges; say that an appellate judgment operates by way of estoppel as regards all findings which are necessary to make the decree effective. Gokul v. Shrimal (1904) 6 Bom. L.R. 288 lays down the same proposition. Apart from the plea of res judicata, as a question of estoppels the same considerations must apply. In Bigelow on Estoppsl, after a full examination of all the English and American authorities, it is stated 'a former judgment or verdict on the other hand, is conclusive between the parties to contested' causes (as has already been intimated) of all necessary inferences arising from it, as well as of the matters actually in issue.' See also pages 97 and 157, Sir George Mellish expresses the proposition thus in Alison's case, 'In re Bank Hindustan, China and Japan (1873) 9 Ch. A. 1. 'It is clear, I apprehend, that a judgment of the Court of Common Law is not only conclusive with reference to the actual matter decided, but that is also conclusive with reference to the grounds of the decision, provided that from the judgment itself the actual grounds of the decision can be clearly discovered. It seems clear from the authorities that the plea of res judicata or estoppel is available not only as regards the final conclusion of the Court or officer, but also regarding all findings necessary for arriving at that conclusion whether they are given on formal issues raised in the case or are referrable to the points which must have been the basis of the final determination. In the present case, the principal subject of controversy was whether the Court sale of the mitta included the lands which the Government claimed to exclude. It was on the ground that it did not form a portion of the mitta that the survey officer decided that the property did not belong to the claimant but to the Government. That pronouncement estops the appellant from claiming that the lands in dispute passed to him by the auction sale. As the peishcush was imposed only after the, sale to him, it follows that the assessment on these lands was not taken into account in fixing the amount payable by the appellant.


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