1. I agree with Munro J. that the extent of the defendant's holding under the plaintiff is res judicata by reason of the decision in O.S. No. 430 of 1906. In that case the present plaintiff, who held a five years' lease of the village from the registered landholder, sued the present defendant to recover rent for faslies 1314 and 1315 in the shape of Rajabagam, or landholder's share of the produce, of certain jeroyati lands in the village in the occupation of the defendant. To enable the plaintiff to succeed it was necessary for him to show under Section 7 of the Rent Recovery Act 1865 that he had tendered a proper patta to the defendant for each fasli, or that it had been agreed to dispense with the tender. under Section 4 the patta had to contain the local description and extent of the land. The plaintiff pleaded that he had tendered a proper pattah for each fasli. The defendant denied the tenders and pleaded further that the pattas alleged to have been tendered were not proper instancing certain payments claimed. He pleaded further that ' the extent of the defendant's jeroyati land (that is, of the land in respect of which the plaintiff claimed rent) has been very much overrated.' I think that must be taken as referring to the extent in the patta as well as to the extent in the plaint, which would merely reproduce it; and I think the District Munsif who tried the case so understood it, as in his careful summary of the written statement he makes no express mention of the plea as to the extent of the land and evidently treats it as part of the plea that the pattas tendered were improper; and I think it was also covered by the issue 'whether the pattas so tendered are proper' and by the terms of the judgment on that issue, which is as follows; ' The terms of the pattas Exhibit F do not contain any objectionable matter.' If this view of the pleadings is correct, there is an end of the case, because the question of the extent of the defendant's jeroyati holding was directly and substantially in issue in the previous suit and must be taken to have been heard and finally decided in the plaintiff's favour, as such a decision is necessarily involved in the decree passed in the plaintiff's favour, seeing that, if the decision had been the other way, it would under the Rent Recovery Act have been fatal to his suit which must have been dismissed on the ground that the patta was not a proper one.
2. In his judgment Sankaran Nair J. observes that a decree for rent does not necessarily involve the decision that a proper pattah has been tendered, as the parties may dispense with them; but where as here tender of a proper patta is alleged on the one side and denied on the other and there is no suggestion that tender has been dispensed with, it seems to me that the decree for rent does involve the decision that a proper patta has been tendered.
3. Apart from any question as to the terms of the patta, it seems to me that the extent of the defendant's holding of jeroyati land in the village was a matter directly and substantially in issue in the suit, as it was in respect of this extent that plaintiff was claiming Rajabagam, or landholder's share of the produce, from the defendant; and that it was necessary for him to prove this extent to enable a decree to be given in his favour, even if there had been no plea in the written statement, as there was, that the extent had been overestimated. In these circumstances I think the decision on the 6th issue that the plaintiff was entitled to the Rajabagam claimed in the plaint necessarily involved a decision that the extent of the defendant's jeroyati land in the village was as alleged in the plaint, because what he claimed was the Rajabagam of this extent and that this point must be taken to have been decided in the plaintiffs favour.
4. In either view the question of the extent of the defendant's holding of jeroyati land in the village having been directly and substantially in issue and having been, as we must take it, heard and determined because essential to the decision of the suit, cannot be raised again in the present suit for the rent of fasli 1316 by the defendant's setting up that he was all along in occupation of only 5 acres of jeroyati land in the village and not of the extent all along claimed by the plaintiff.
5. But even assuming that the propriety of the pattah was not questioned in the former suit on the ground that the extent of the lands was wrongly shown and that the extent was not otherwise questioned by the defendant, I think that these being good grounds of defence to the suit might and ought to have been raised and must be deemed to have been matters expressly and substantially in issue in the former suit by virtue of Explanation IV to Section 11 of the Civil Procedure Code. It seems to me that any ground of attack or defence which by virtue of the explanation is deemed to have been directly and substantially in issue in a suit must also be deemed to have been heard and finally decided adversely to the party who failed to raise it. The proposition that failure to raise grounds of attack or defences which might and ought to have been raised does not make such ground res judicata unless there is an express decision by the Court upon them appears to me to be wholly untenable. Courts of justice are not in the habit of deciding points not raised before them; and to say that the Explanation only takes effect when they happen to do so appears to me to defeat the policy of the section and to render the Explanation senseless as, held by the Allahabad High Court in Sri Gopal v. Pirthi Singh I.L.R. (1898) A. 110 a decision confirmed on appeal in Sri Gopal v. Pirthi Singh I.L.R. (1902) A. 429, by their Lordships of the Judicial Committee who thought it sufficient to say that the judgment of the High Court was clearly right and that the appeal on this point was unarguable. I do not therefore consider it necessary to refer to the earlier decisions of the Calcutta High Court on which Sankaran Nair J. relied and it is the more unnecessary to do so as they are very fully examined in the judgment of Sundara Aiyar J. The appeal must be allowed, the decrees of this Court and the lower appellate court reversed and the case remanded to the District Judge for disposal according to law. Costs will abide the event.
Sundara Aiyar, J.
6. This is an appeal under Section 15 of the Letters Patent arising out of Second Appeal No. 640 of 1909. The original suit which led to the Second Appeal was instituted by a landlord for the recovery of rent from the defendants, his ryots, for the fasli year 1316. According to the plaintiff's case the defendants were in possession of about 14 acres of jeroyati lands under him liable to pay waram or rent in kind. The 1st defendant, the undivided father of the 2nd defendant, contended that he held only 5 acres of jeroyati lands and that he held in addition 10 acres of Inam and 3 acres of cash-rent-paying lands and denied that any patta was tendered to him for the fasli in question as alleged by the plaintiff. The correctness of the patta alleged to have been tendered was also denied. The 7th issue framed by the Munsif raised the question ' whether the alleged tendered patta was valid and binding on the defendant.' The 8th issue was ' whether the whole of the 14 acres of land mentioned in the plaint is defendants' jeroyati as alleged by the plaintiff, or only 5 acres jeroyati and the rest Inam and cash-rent-paying land as alleged by the defendants.' At the hearing a further question was raised whether the question of the propriety of the patta tendered was res judicata in consequence of the dicision of the Court in O.S. No. 430 of 1906 related to a suit for rent instituted by the plaintiff against the defendants for fasli 1314. The District Munsif held that the matter was not res judicata because the points in dispute were not raised in the previous suit, these points being the inclusion of Inams and of money-rent-paying lands as waram paying lands and the erroneous description of the lands for which the plaintiff is entitled to claim rent. On the merits he held that the patta tendered was not a proper one. He was of opinion that part of the lands included in the patta was Inam and was wrongly claimed by the plaintiff as jeroyati. He did not decide the question whether cash rent and not rent in kind was payable for part of the land. He apparently thought that the patta must be held to be incorrect in stating that waram was payable while cash rent was received till the end of Falsi 1313. The mistake complained of with regard to the description of the land was that the eastern boundary was described as the service Inam of the defendant, while in the patta for Faslis 1313, 1314, it was described merely as defendants' Inam. This was held by the Munsif to be improper although he did not decide the question whether the description of the boundary of the defendants' land as service Inam was in fact correct or not. He dismissed the plaintiff's suit. His judgment was confirmed on appeal by the District Judge who upheld the Munsift's view on the question of res judicata. The Judge observed on the question of the correctness of the patta as follows:--'Appellant does not seriously argue that the patta was a proper one.' The plaintiff preferred a Second Appeal to this Court. The question argued in Second Appeal was that the propriety of the patta was res judicata by the judgment in O.S. No. 430 of 1906. The Appeal came on for hearing before Munro and Sankaran Nair, JJ. The learned Judges differed in their views, Munro, J. being of opinion that the plea of res judicata must be upheld, while Sankaran Nair, J. agreed with the opinion of the lower Courts that it should not be maintained. In the result, the Second Appeal was dismissed in accordance with the provisions of Section 98 (2) of the Civil Procedure Code. The present appeal is therefore substantially against the Judgment of Sankaran Nair, J. In the previous suit, O.S. No. 430 of 1906, the 1st issue was 'whether the plaintiff tendered pattas to the 1st defendant for Faslis 1314 and 1315 and whether the pattas tendered are proper.' The tender of patta was held to be proved. The finding on the question of its propriety was in these terms:--' The terms of the pattas, Exhibits E and F, do not contain any objectionable matter. I accordingly find the 1st issue in the affirmative.' In the written statement in that suit, marked as Exhibit C, in the present suit, paragraphs 8 and 9 took objections to the correctness of the patta. Paragraph 8 stated:--' The pattas alleged to have been tendered are not proper. The terms in paragraph 3 of the plaint are not mamool terms.' The terms referred to related apparently to the giving of firewood, the payment of interest and the amount of road cess payable by the ryot. Paragraph 9 stated : ' The extent of defendants ' jeroyati land has been very much over estimated by the plaintiff.' So far as the written statement was concerned the details of the overstatement of the extent of the jeroyati land were not stated and no specific objection was taken to the statement that some portion of the lands was wrongly mentioned as liable to pay waram instead of cash rent. The objection in the present suit with regard to the description of the eastern boundary may be left out of account as it cannot be held to affect the plaintiff's right to the land in question. It is immaterial whether the defendants' land which forms the eastern boundary was his service Inam or an Inam of a different character so far as the relations between the plaintiff and the defendants with regard to the plaint land are concerned. The District Munsif did not find that the description of it as service Inam was incorrect. It does not appear to what points the evidence let in by the parties in the previous suit related with respect to the correctness of the patta and the Munsif's finding throws no further light as it is expressed in general words ' the terms do not contain any objectionable matter.' The appellant's contention is that the defendants who set up that a proper patta had not been tendered were bound to raise all objections that they could to the propriety of the patta and that the judgment in the previous suit must be taken to be an adjudication that the terms of the patta were correct in every respect and that therefore they cannot raise any objection to the propriety of the patta in this suit which they might have failed to urge in the previous suit. Except in the matter of the difference in the description of the eastern boundary which, in my opinion, may be neglected it is not stated that the terms of the patta tendered for Fasli 1316 were not similar to the patta for Fasli 1314 which was held to be a proper one in the previous suit. The District Munsif observes that the patta in question was virtually the same as that which was tendered for Fasli 1314. The correctness of this statement is not seriously disputed. Munro, J. observes:--' Had the issue in the previous suit relating to the correctness of the patta been found in the negative, the plaintiff's suit must have been dismissed. The finding in the previous suit that the pattas were proper i.e., that they were such as the defendants were bound to accept, was a finding that the relationship of landlord and tenant subsisted between the plaintiff and the defendants in respect of the land entered in the pattas and I do not think that the defendants can again be allowed to put the plaintiff to proof of his title.' Sankaran Nair, J. held having regard to the general language of the District Munsif's finding in the previous suit that there was no explicit adjudication there of the questions now raised, viz., whether a portion of the lands was Inam or Jeroyati and whether another portion was liable to pay cash rent or waram. The learned Judge was further of opinion that as the suit related only to the rent for a particular year F. 1316 it did not necessarily require a decision as to the terms of the patta or the extent of the land for which rent was payable and that these questions are therefore not res judicata.
7. The decision of the question depends on the interpretation to be placed on Section 11 of the Civil Procedure Code which embodies the rule of res judicata. According to the section, the Court is forbidden to try ' any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties.' The rule applies subject to the other provisions of the section not only to a suit tried before but to an issue decided in a previous suit provided the matter directly and substantially in issue in the later suit was raised in the previous suit or in a substantial and direct issue in the previous suit. Explanation III lays down--' The matter above referred to must in the former suit have been alleged by one party and either denied or admitted expressly or impliedly by the other.' An implied denial is as effective as an express one. Explanation IV says ' Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
8. The appellant contends that with respect to any issue in the former suit the parties were bound to put forward all grounds of attack or defence material for the decision of the issue and will be deemed to have done so even if they failed to do so in fact; that the propriety of the patta was directly and substantially in issue in the previous suit and that both the plaintiff and the defendants were bound to put forward every matter involved in the question of the correctness of the patta and that the decision that the patta was a proper one must be taken to be a decision that there was no valid objection of any sort to it; and that the defendants cannot now be permitted to raise any matter relating to the propriety of the patta which he might have failed to raise before. I am of opinion that these contentions must be upheld. The learned Counsel for the respondent rested himself on the arguments contained in the Judgment of Sankamn Nair, J. and did not elucidate the points any further. It becomes therefore necessary to examine the arguments contained in the Judgment of that learned Judge. He lays down the following propositions as I understand his Judgment:
(1) The scope of the rule of res judicata as limited by the words ' directly and substantially in issue' is not confined to the relief granted by the former suit or to the property which was the subject matter therein.
(2) The decision on a matter not essential for the relief finally granted in the former case, or which did not form one of the grounds for the decision itself, cannot be said to have been directly and substantially in issue; but, where the decision on a question was essential to the relief granted or the decree passed, or where it formed the groundwork of the decision, then the matter must be deemed to have been directly and substantially in issue in the suit.
The difference between issues ' collateral' and ' direct' depends upon whether it was possible to pass the decree without any finding upon the particular issue.
(3) With regard to the relief granted in a suit, the decree may render it necessary to imply a decision on a question not expressly decided, but with regard to issues no implication is necessary but we ought to have a clear decision to create a bar. The application of the latter part of the rule would of course be to cases where the subject matter of the two suits is different.
(4) Explanation (IV) does not dispense with the necessity of a finding upon a matter which might and ought to have been made a ground of defence or attack in the former suit unless that matter must be taken to have been involved in the actual decree passed in the case.
(5) It is not enough to make the matter of an issue res judicata that the decision of it in a different manner would be inconsistent with the decree in the previous case as such determination would not affect the actual decree passed in that case for the rent for fasli 1314.
(6) A decree for rent does not necessarily involve the decision that a proper patta has been tendered.
9. If therefore as a fact that question was not decided in the previous suit, we are not bound to imply that it was so decided.
10. Now Section 11 of the Civil Procedure Code requires that the matter or issue should have been heard and finally decided by such Court. It does not say that it should have been decided in explicit terms. It cannot be doubted that if an adjudication on a matter is necessarily involved in the decision in a prior suit, the section must be understood to lay down that it must be taken to have been heard and finally decided. Sanlcaran Nair, J. admits that the principle of an implied decision must be adopted so far as whatever is required by decree in the previous suit is concerned. But he lays down that it is not applicable with regard to issues. He does not say how then the judgment in a suit is to be understood. No such distinction is warranted by the language of the section. The suit and an issue put forward for trial in the second suit are treated on exactly the same footing in the section and the test of res judicata with regard to each is whether the matter directly and substantially in issue in the later suit was the matter directly and substantially in issue in the suit or in an issue in the earlier suit. The word ' issue' in the expression ' suit or issue' must be distinguished from the use of the words 'in issue' in the expression 'the matter directly and substantially in issue.' The latter expression as already stated is made applicable to both the later suit and an issue raised in it.' Directly and substantially in issue 'obviously means' directly and substantially in question, which would include everything necessarily involved 'whether that expression is applied to the suit itself or an issue in it. This has to be borne in mind in interpreting explanation IV also. It speaks of 'any matter which might and ought to have been made ground of defence or attack in the former suit.' The phrase 'matter directly and substantially in issue' in the principal clause of the section is spoken of with reference to both suit and issue. Clearly therefore what ought to have been made ground of defence or attack with respect to any issue in the earlier suit must be taken to have been a matter directly and substantially in issue therein when the question is whether an issue in the earlier suit can be tried again in the later suit. Again in deciding whether any matter is res judicata, the question is, what is necessarily involved in the actual Judgment of the Court in the earlier suit, not what relief was granted by the decree, because it is the matter decided (expressly or by necessary implication) that becomes res judicata. It is desirable to illustrate by a concrete example. Suppose a suit is instituted for one of the instalments payable according to the terms of a bond. The defendant denies its genuineness and pleads also absence of consideration and issues are framed on both points. The Court passes a decree for the instalment but records no explicit finding on either of the issues. A suit is subsequently instituted in the same Court for a second instalment and the defendant raises the same pleas as in the earlier suit. The subject matter of the two suits is not the same and the dismissal of the second suit would not affect the actual decree passed in the earlier suit. Can it be contended that the issues may be tried again in the second suit? According to the learned Judge apparently they should be tried again. The executant of the bond, according to him, though he cannot seek to recover back the amount decreed against him in the earlier suit, may resist the second suit for the later instalment. The difference between issues ' collateral' and ' direct,' according to the learned Judge, depends upon ' whether it was possible to pass the decree without any finding upon the particular issue.'' I am unable to accept his position that though a finding might be necessary to pass the judgment in the previous suit, the issue should not be taken to have been decided (unless explicitly decided) if the result of the second suit would not be to reopen the actual decree in the previous suit. The result of such a position would be that the same issues may be re-opened again and again in the same court though such re-opening would be inconsistent with the decree and judgment in every one of the previous suits. According to the learned Judge such inconsistency is immaterial. The decision of the Privy Council in Amanat Bibi v. Imdad Husain is referred to in support of this position. There were two earlier proceedings, one, a suit to establish a sub-properietory right as against a talukdar, the other, a proceeding to recover the same property from the talukdar under the terms of a certain revenue circular on repaying to the talukdar the arrears of revenue which he had paid to the government. The third proceeding in which the plea of res judicata was raised was a suit to redeem a mortgage granted by the person who was plaintiff in the earlier proceeding. The Privy Council held that the third suit was not barred as res judicata because the cause of action was different. Their Lordships held that the cause of action to establish a sub-proprietory right was obviously different from that in a suit for redemption though the property sought to be recovered was the same. The question in issue, said their Lordships, was quite different in the two suits; and they interpreted the provisions in Section 7 of Act VIII of 1859 which enacted that ' every suit shall include the whole of the claim arising out of the cause of action ' as not requiring that ' every suit shall include every cause of action or every claim which the party has, but only that every suit should include the whole of the claim arising out of the action on which the suit is brought.' It is now a well-established proposition that, though the subject-matter of the litigation and the relief claimed may be the same, different suits may be maintained by a plaintiff if the cause of action in each suit be different. There were two stages in the second of the earlier proceedings. The first originated in an application by the plaintiff under a Revenue circular to recover the property. The Settlement Officer who made the inquiry found that the plaintiff had conveyed the property to the talukdar by a conditional sale which had become absolute in 1853 and that the plaintiff was further not entitled to recover the property as he had not repaid to the talukdar certain arrears of revenue paid by the latter which he was bound to repay before claiming to recover the property. Their Lordships held that this order under the special circular could not be treated as judicial proceedings at all. The plaintiff then had recourse to fresh proceedings on the ground that the payment of arrears by the talukdar must be treated as having been made on his account. The Settlement Officer then again decided that the property had been transferred to the talukdar by a conditional sale of the year 1853 which had become absolute. Their Lordships held that the question in those fresh proceedings must be taken to have been merely ' whether the plaintiff was entitled to recover the property which had been transferred by the Government to the talukdar on repaying to the talukdar the arrears of revenue which he had paid to Government,' that being according to their Lordships the cause of action on which the plaintiff then claimed to recover. The matter in issue in the suit before their Lordships, they said, was ' the respondent's right to redemption under the mortgage-deed of 1854.'' Their Lordships then observed, 'It may be difficult to reconcile the position of the talukdar as mortgagee in 1854 with his position as absolute owner in 1853 under purchase from the mortgagor. But if it be established that the respondent was a mortgagor in 1854 with the right of redemption, why should he be barred merely because at an earlier date he may have had no right to the property at all?' This is the passage relied on by the learned Judge for the proposition that the decision of an issue in the earlier suit inconsistent with an issue in the later suit will not make the suit or issue in the later suit res judicata. I can find no such proposition laid down by the Privy Council. They did not regard the later suit as inconsistent with the decision in the former suit that there was a conditional mortgage of 1853 which, if it was in operation, had become absolute in 1853. Proceeding on the basis that the conditional mortgage had been established to be true, if the talukdar chose to take a mortgage in 1854 from the plaintiff and his subsequent holding was under that mortgage, their Lordships held that the mortgage of 1854 would furnish the plaintiff with a fresh cause of action and a plaintiff need not combine in the same suit all his causes of action, though both suits might be for the recovery of the same property. They did not say that in the later suit the execution of the conditional sale of 1853 or its having become absolute could be denied. The observation that it may be difficult to reconcile the position of the talukdar as mortgagee in 1854 with his position as absolute owner in 1853 under a purchase from the mortgagor meant no more than that it might appear to be improbable that a person who was absolute owner in 1853 would take a mortgage in 1854; but a mortgagee cannot deny the title of his mortgagor and if the talukdar chose to take a mortgage from the plaintiff in 1854 he could not say that the plaintiff did not obtain a fresh cause of action for redemption of that mortgage. On the other hand, in Pahalwan Singh v. Maharaja Muheshur Buksh Singh Bahadur (1872) 12 B.L.R. 391 the Privy Council applied the rule of an implied decision of an issue by a former adjudication although the property in the two suits was different. The learned Judge seems to have been under the impression that in that case the decree in the later suit would re-open the decree in the earlier suit, but that was not the case, as the property in dispute in the two suits was different. It is of course necessary that in order that an issue may be res judicata the decision in the former suit must necessarily involve an adjudication in a particular way on the issue raised in the later suit and its adjudication in a contrary way in the later suit must be inconsistent with the adjudication which must be implied in the earlier suit. In one part of his judgment the learned Judge observes that where the decision on a question was essential to the relief granted, or where it formed the ground-work of the decision, then the matter must be deemed to have been directly and substantially in issue in the suit, but he afterwards restricts the scope of the second test to cases where the question was explicitly decided. For this restriction I can find no warrant either in principle or in the language of the section.
11. The statement that a decision on a matter not essential for the relief finally granted cannot be said to have been directly and substantially in issue is unworkable in practice, where a suit is dismissed without any relief being granted. The test should really be whether the matter was essential for the decision in the earlier suit, not for the relief granted. The decision of a court proceeds on the matters put in contest by the parties and its adjudication cannot be understood without regard to the actual contest. It is impossible to understand it merely with regard to the decree. Suppose a suit for an instalment on a bond is dismissed, the defendant's plea being that the bond is not genuine and that it is not supported by any consideraion. The court does not record any explicit findings on these points, either of which would lead to the dismissal of the suit. Suppose the plaintiff afterwards institutes a suit for another instalment and the defendant raises the same pleas. Can the plaintiff be permitted to say that the points should be tried again and he should be given a decree if both points are found in his favour? Sankaran Nair, J. concedes that the granting of the relief may be taken to involve the decision of whatever point is necessary to support the decree. But what points are to be taken as involved in the decree in the instance just put? How is it possible to decide a question of res judicata by a consideration of the relief alone which is granted and without a consideration of the judgment in the case and how is it possible to understand what the Court decides in the judgment without seeing what the contest between the parties was? The result of doing so would be to confine the doctrine of res judicata to the scope of the rule transit in rent judicatum (except where a matter directly and substantially in issue has been explicitly decided by the judgment in a former suit). Suppose in the illustration already put of a defendant denying both the genuineness and consideration of an instalment bond, the defendant in the second case admits the genuineness of the bond but denies only the passing of consideration for it. If it is open to the Court in the later suit to proceed on the footing of the genuineness of the bond, the question would arise whether the matter as to consideration is res judicata by the former judgment. As no explicit findings on the points in contest were recorded in the judgment, the decision might have proceeded either on the ground that the bond was not genuine or that it was not supported by consideration, or on both grounds. It might be proper in such a case to hold that the previous judgment did not necessarily imply a decision on the question of consideration. Certainty is essential for the application of the rule of res judicata and the court would not prevent the reagitation of a matter where it is not certain that the previous decision proceeded on a particular ground. See Vaithilinga Mudaliar v. Ramachendra Naicker (1904) 14 M.L.J. 373. If a suit for an instalment is dismissed for default no matter would be res judicata in a claim for another instalment. If it is decreed ex parte, the genuineness of the bond and all questions as to its enforceability, so far as to justify a decree for the instalment would be res judicata in a suit for another instalment. The learned judge apparently proceeds on the view that for some reason the scope of the rule of res judicata with regard to issues should be restricted as far as possible and refers to the opinion of Stuart C.J. in Babu Lai v. Ishri Prasad Narain Singh I.L.R. (1880) A. 582 and Mahammad Ismail v. Chatter Singh (1881) 4 A. 69 who regretted the application in this country of the principle of res judicata to the trial of issues and not merely to the subject-matter in previous suits. It is necessary to consider whether there are good grounds for such regret. The rule was well established by the decisions of the Priviy Council.--see Krishna Behari Boy v. Brojeswari Chowdranee (1875) 2 I.A. 283, Pahalwan Singh v. Maharaja Muheshur Buksh Singh Bahadur (1872) 12 B.L.R. 391, Soorjomonee Dayee v. Suddanund Mohapatter (1873) 12 B.L.R. 304, Pittapur Baja v. Buchi Sitayya 8 M.K 219. Section 13 of Act X of 1877 and Section 11 of the present code made the expression ' matter directly and substantially in issue ' applicable both to ' suit' and ' an issue in a suit.'
12. The learned Judge holds that the proper terms of the patta to be tendered by the land-holder to the ryot could not be regarded as having necessarily been directly and substantially in issue in a suit for rent. Two decisions of the Privy Council are referred to in support of this position. The first of them is Misir Raghobardial v. Sheo Baksh Singh 9C.K 439. In that case the plaintiff had previously instituted a suit for Rs. 1,665, the balance of interest due on a bond for Rs. 12,000 in a court not competent to try suits exceeding Rs. 5,000 in value. The defendant had pleaded that the bond was supported by consideration only to the extent of Rs. 4,790 and that the amount already paid by him for interest exceeded the interest due on the actual consideration that had passed. The defendant's plea was upheld. The plaintiff subsequently instituted a suit for the principal and interest due on the bond in a court competent to try a suit of that value. The question was whether decision in the previous suit as to the amount of consideration that had passed for the bond was res judicata in the subsequent suit. Their Lordships held that it was not. The point was decided on the ground that the court that decided the previous suit was incompetent to try the later suit for principal and interest. The rule as to the necessity for the court trying the previous suit having concurrent jurisdiction to try the later suit had also been laid down by the decisions of the Privy Council under Act VIII of 1859, although the language of Section 2 of that Act did not in terms refer to that requisite. Sir Richard Couch in pointing out that the rule already applied by the Privy Council while Act VIII of 1859 was in force was embodied in explicit terms in Act X of 1877 went on to observe that the issue as to consideration ' was a ' collateral' rather than a ' direct' issue in the suit.' He said the 'plaintiff might have succeeded without having a finding upon it if he had proved an admission by the defendant that the sum claimed was due for interest, or had shown that the Rs. 2,475, (the sum alleged to have been paid for interest) had been expressly paid on account of the larger sum which he said the defendant owed for interest.' This is immediately followed by the sentence ' If the decision of the Assistant Commissioner is conclusive, he will, although he could not have tried the question in a suit on the bond, have bound the plaintiff as effectually as if he had jurisdiction to try that suit. Their Lordships think that this was not intended and that by court of competent jurisdiction, Act X of 1877 means a court which has jurisdiction over the matter in the suqsequent suit in which the decision is used as conclusive, or in other words, a court of concurrent jurisdiction.' It is clear to my mind that his Lordship in making the observation contained in the previous sentences was only dealing with the question of the necessity of concurrent jurisdiction in the court which tried the earlier suit and he used the expression ' collateral' in the sense of ' not referring to the subject matter of the previous suit' and that he did not mean that it was not necessary for the decision of the suit on the issues raised between the parties on the pleadings in the case. The observation was made with reference to the principle that the judgment of a court not having jurisdiction to try the later suit would not be res judicata on any issue in the earlier suit but only with respect to the actual subject matter of the previous suit. In Run Bahadur Singh v. Lucho Koer I.L.R. (1885) C. 301 the decision in Misir Baghobardial v. Sheo Baksh Singh I.L.R. (1883) C. 439 was treated as an authority only on the question that the adjudication of a Court not having concurrent jurisdiction with that trying the later suit would not make the decision of an issue res judicata. Both Misir Raghobardial v. Sheo Baksh Singh I.L.R. (1883) C. 439 and Run Bahadur Singh v. Lucho Koer I.L.R. (1885) C. 301 on the other hand proceed on the assumption that if there had been concurrence of jurisdiction in the two courts the finding on an issue in the earlier suit would have given rise to a successful plea of res judicata. It would appear that in the Duchess of Kingston's case which was referred to by Sir Richard Couch in the judgment in Misir Raghobardial v. Sheo Baksh Singh I.L.R. (1883) C. 439 the expression 'direct issue' as opposed to a 'collateral' one was used in the sense of an issue directly determining the subject matter of the previous proceedings and not in the sense in which it is obviously used in the Indian statute. There is in my opinion no foundation at all for making a distinction between an explicit decision and an implied decision of an issue in the application of the doctrine of res judicata, provided the matter raised in the issue was directly and substantially in issue in the earlier suit. If the decision was not sufficiently explicit that would no doubt furnish the party affected by it in the earlier suit a good ground for appeal against the decision just as any other error or imperfection would do, but the defect in the finding is not one that can be collaterally attacked in the later suit. The same observation would apply even if an issue regarding a matter directly and substantially in issue in the former suit was not clearly raised or not raised at all provided the matter is such that it must be taken to have been decided in the earlier suit, that is, provided the judgment would not be sustainable unless the matter be taken to have been decided. Mr. Justice Sankaran Nair holds that explanation IV which states that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit' does not qualify the statement in the principal clause that the matter in issue should have been ' heard and finally decided by such court.' It is of course true that the matter should have been decided in contemplation of law but if, as the learned Judge concedes, it is sufficient if the matter must be taken to have been decided by necessary implication so far as the subject matter of the suit and anything involved in the decree itself are concerned, what reason is there for putting a different construction on the same words as applied to the decision of an issue? And if so far as what is involved in the decree is concerned any matter which might and ought to have been made ground of defence or attack must be taken to have been decided, there is in my opinion equally no reason for not applying the same principle with respect to a matter directly and substantially in issue in an issue in the previous suit. As I have already observed the language of explanation IV is equally applicable both to the previous suit itself and to an issue in the suit. What use is there in enacting that what ought to have been made ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in that suit if the matter is not also to be taken to have been decided in the previous suit? What was not made ground of defence or attack could not have been expressly decided. The explanation would therefore be objectless if a decision also is not to be implied and made the ground of estoppel with respect to what is impliedly to be regarded as having been directly and substantially in issue. At any rate the logical result of the respondent's position must be to make an explicit decision equally necessary with respect to a ground of attack or defence not having been urged with regard to a matter involved in the decree itself in the previous suit. The learned Judge's position is no doubt supported by several decisions in the Calcutta High Court (Kailash Mondal v. Baroda Sundari Dasi I.L.R. (1898) C. 711 'Woomesh Chandra Maitra v. Barada Das Maitra 28 C.H 17 but in my opinion these decisions are absolutely unsupportable and quite inconsistent with the decision of the Privy Council in Pahalwan Singh v. Maharaja Muheshur Buksh Singh Bahadur (1872) 72 Ben. L.R. 391 and Mahomed Ibrahim Hossain Khan v. Ambika Pershad Singh I.L.R. (1912) C. 527 even if the decision of the same tribunal in Sri Gopal v. Pirthi Singh I.L.R. (1902) A. 429 could be distinguished as stated by Sankaran Nair, J. on the ground that the implication of a decision on an issue which ought to have been raised in the previous suit was justifiable in that case as the decree passed in the earlier suit would itself be affected otherwise. The Calcutta High Court however did not consider Sri Gopal v. Pirthi Singh I.L.R. (1902) A. 429 distinguishable on that ground. Mr. Justice Gurudas Banerjee who was a party to the decision in Kailash Mondal v. Barod Sundari Dasi (1904) J.C.L.J. 248 observed in Rujendra Nath Ghose v. Tarangini Dasi I.L.R. (1878) C. 711 that the position adopted by him in the previous case would require to be reconsidered in consequence of the decision in Sri Gopal v. Pirthi Singh I.L.R. (1902) A. 429. The same view was taken by the Calcutta High Court in Kailash Chandra Mandril v. Rain Narain Giri (1906) 4 C.L.J. 211, Jamadar Singh v. Serazuddin Ahmad Chaudhuri I.L.R. (1908) C. 979 and Mohim Chandra Sarkar v. AnilBandhu Adhikary 13 C.W.N. 513 although Jamadar Singh v. Serazuddin Ahmad Chaudhuri I.L.R 35 (1908) C. 979 might be explicable if the distinction adopted by Sankaran Nair J. be correct. this Court also has held that a ground of attack or defence which a party omitted to bring forward in an earlier suit must be taken to have been decided in the suit. See Antnachellam Chetti v. Meyyappa Chetty I.L.R 21 (1898) M. 91, Masilamania Pillai v. Tiruvengadam Pillai I.L.R. (1908) M. 385. The point seems to be so obviously clear that it does not deserve further consideration.
13. According to the respondent's argument, although a matter not necessary to sustain the actual decree in an earlier suit will not be res judicata in a later suit if the decision on it is only by way of implication, yet it would be res judicata if it expressly decided it. That an express decision would constitute an estoppel was regarded by Sankaran Nair, J. as concluded by the decision of the Privy Council in Pittapur Raja v. Buchi Sitayya I.L.R. (1885) M. 219 to which might be added several other rulings. (See Gobind Chunder Koondoo v. Taruck Chunder Bose I.L.R. (1878) C. 145, Soor jomonee Dasee v. Suddanund Mohapatter (1873) 12 Ben. L.R. 304. Krishna Behari Roy v. Brojesweri Chowdranee (1875) 2. 1. A. 283. But the test laid down in these cases was not whether the decision was explicit but whether the issue was one on which the judgment in the previous suit was based, quite apart from the question whether the decree itself would be affected by the matter being re-opened in the later suit. If the judgment was not based on the issue then the decision of the issue whether express or implied cannot constitute the matter res judicata in the later suit.
14. These are the general principles which in my opinion must guide the Court in determining whether the question of the correctness of the patta is res judicata by the decision in the previous suit for the rent of Fasli 1314. The point is, was the question of the propriety of the patta directly in issue in the previous suit and was it decided expressly or by implication. In my opinion the question whether a decree for rent involves a decision that a proper patta had been tendered is one which must be decided with reference to the facts of each case. It is perfectly true as pointed out by Sankaran Nair, J. that the tender of a patta is not essential to a landlord to recover rent and that the parties may dispense with it. It may be right to go farther and say that a ryot may, if he choose, not insist on the tender of a proper patta before he pays rent for any particular year and that this will not affect his right to require a proper patta in any subsequent year and resisting a suit for rent on the ground that a proper patta has not been tendered. It may be open therefore to a defendant to raise no plea at all about the correctness of a patta in a suit instituted for the rent of a particular year; this may not estop him from resisting a subsequent suit for rent for another year on the ground that the patta alleged to be tendered is not correct. This may possibly apply even in cases where the plaintiff alleged in the earlier suit that he tendered a patta containing proper terms. But the effect of a decision depends in large measure on the actual contest between the parties. A party may not be bound to raise a particular plea, but if he does raise a plea which would be an effective answer to the suit then the same plea cannot be raised again in a later suit between him and his opponent. It may be 'that the actual decree alone in the previous suit with respect to its subject matter would not lead to an implication of the decision of a particular matter but if the matter is put in contest and the result of the contest would be that the judgment in the case must depend on the decision of the matter, then it is clear to my mind that the decision would constitute it res judicata in a subsequent suit and it is absolutely immaterial whether the decision be express or implied. Of course it is open to the parties to show that the contest on any matter was subsequently waived or that the court refused to decide the matter, but if neither of these events took place a decision by the court on the matter must necessarily be implied if it was not expressly decided. In the case before us we have a decree for rent. It is said this did not necessarily require a decision as to the terms of the patta or the extent of the land for which the rent was decreed. Is this correct when the terms of the patta or the specification of the extent of the land were impugned? When these questions were raised by the defendant could the court pass a Judgment for rent in the plaintiff's favor without determining them? The learned Judge seems to proceed on the footing that the question what is necessary to be decided in a suit is to be settled without reference to the pleas raised by the defendant. With all deference this seems to be an altogether indefensible position.
15. In Pahalwan Singh v. Maharaja Muheshur Buksh Singh Bahadur (1872) 12 Ben L.R. 391a suit was instituted in the Shahabad Court for recovering certain land as an accretion to the estate of the plaintiff in that suit in the District of Shahabad. The defendant in the suit claimed the land as an accretion to his own estate in the District of Ghuzipur. The Courts decided that the land was an accretion to the plaintiff's estate in Shahabad and not to the defendant's estate in Ghazipur. The defendant subsequently instituted a suit in the Ghazipur Court for the land to which the subject of the former suit was found to be an accretion. The Privy Council held that the holding in the earlier suit necessarily decided that the land claimed by the plaintiff in the later suit was in the District of Shahabad and that the Court of Ghazipur had no jurisdiction. It will be noted that the property in the two suits was different. Any plea as to the District in which the property in the later suit was situated was not a necessary one, the immediate question in the earlier suit being merely whether the land was an accretion to the property of the plaintiff or of the defendant in the suit; but the parties went to trial on the question whether the land was an accretion to the plaintiff's estate in Shahabad or the defendant's estate in Ghazipur and the issue which arose on their contest was regarded as determining the question in which district the property in dispute in the later suit was situate. Their Lordships observed '' Now, no doubt, it might be possible to suppose cases in which the decision as to the accretion might not necessarily be a decision that the land to which it was accreted was within the local jurisdiction of the Court which had dealt with it. But all these questions must be tried with respect to the subject-matter in the particular suit; and it seems to their Lordships impossiple, in construing the section with reference to what was in issue in the former suit, to come to any other conclusion than that the decision did, by necessary implication, find that the green land was within the settled estate of the Maharaja in Shahabad. He came as plaintiff into court; he claimed the whole of the land as an accretion to his settled estate in Shahabad. From the map and the evidence, it is obvious that, if an accretion to his land, it could be an accertion to nothing but the green land. The accretion was found to be an accretion to his land in the settled estate of Shahabad and that proposition necessarily implied that the green land was a part of the settled estate of Shahabad.'
16. In Soorjomonee Dasee v. Suddanund Mohapatter (1872) 12 Ben L.R. 304the Privy Council held that if the right to certain property is contested on a ground equally applicable to that and other property, then the decision of the matter will be res judicata not only with regard to that property but with regard to all other property embraced by the ground on which the contest is based and that the pleadings must be referred to to decide what matter was contested between the parties. Their Lordships observe ' In their Lordships' opinion, the eftect of the pleadings is that the plaintiff sought, interalia, to set aside the will on the ground that the testator had not the power to make any of the devises of realty that it contained inasmuch as he could not devise ancestral real property and all his real property was in point of law ancestral consisting of such as he had inherited from his father and such as he had bought out of the income of it...If both parties invoked the opinion of the court upon this question, if it was raised by the pleadings and argued, their Lordships are unable to come to the conclusion that, merely because an issue was not framed which, strictly construed, embraced the whole of it, therefore the judgment upon it was ultra vires. To so hold would appear scarcely consistent with the case of Mussamut Mitna v. Syed Fuzl Rul (1870) 13 M.I.A. 573 wherein it was held that in a case where there had been no issues at all, but where nevertheless it plainly appeared what the question was which was raised by the parties in their pleadings and was actually submitted by them to the Court, the judgment upon it was valid.' This was a decision under Act VIII of 1859 which did not expressly lay down the rule of res judicata with regard to an issue in a suit. In Tirbhuwan Bahadur Singh v. Rameshar Baksh Singh I.L.R. (1906) A. 727 it was laid down by the Privy Council that the conduct of the parties must be considered in deciding whether an issue was material for the decision in the earlier suit. In Aghore Nath Mukerjee v. Katnini Debi (1910) 11 C.L.J. 461, Mookerjee and Teunon JJ. held that if a person who has no present interest in the bequests contained in a will is made a party to a suit which asked for the construction of the will and the determination of all rights created by it and he takes an active part in the contest relating to the construction, the decision of the court on the construetion would be res judicata against him. It is true that it is not always easy to decide what was directly and substantially in issue in a former suit. Issues are often framed by courts not only on points which are essential for the determination of the actual matter in controversy between the parties but also on subsidiary questions having more or less bearing on the essential points. A decision on such subsidiary questions need not necessarily make the matter raised by them res judicata in a subsequent suit where they become material for the decision of the matter then brought under contest. Again, a decision on one of two questions may be enough to determine a contest but both the questions might be adjudicated on and made the basis of the judgment. In such a case the matter raised in both the questions would be res judicata although if the judgment had been based on one of them alone the other would not be res judicata. Again, suppose a suit is instituted for the recovery of certain properties, the defendant might merely deny the plaintiff's title to those properties and the issues might relate only to the particular properties claimed. In such a case a pronouncement on points involving both the properties under litigation and other properties might not lead to estoppel by res judicata. But suppose the defendant rests his defence on a ground which admittedly covers both the properties claimed by the plaintiff in the suit and the other properties as for instance by claiming them all under a will and the issue as to the will is decided against him; then in that case if the plaintiff subsequently claims other properties under the will the question as to the will would obviously be res judicata. Suppose again a plaintiff claims on the basis of his right under a will some of the properties comprised in it and the defendant contests the genuineness of the will. The decision of the court that the will is or is not genuine will certainty bind both the plaintiff and the defendant in any litigation between the parties with reference to other properties in the will. In a suit for rent for a particular year it may often not be easy to determine whether any particular question raised relates only to the claim made for the year or is one which would affect the right to rent for other years also. The court has in each case to decide whether the issue covers the plaintiff's right to rent except for the year for which it is claimed. In Vythilinga Mudaliar v. Ramachandra Naiker : (1904)14MLJ379 cited by Dr. Swaminathan for the respondent the question raised in the earlier suit for rent was whether the defendant was in possession of all the lands for which rent was claimed. this Court held that any finding on the question would not be res judicata in a suit for rent for a subsequent year as the land of which the defendant was in possession might not have been the same in both the years. Mr. justice Subramania Aiyar, whose judgment was concurred in by Mr. Justice Sankaran Nair, observed however that a decision on a point which would affect the right to rent for both the years could not be disputed in the later suit. He observed (p. 383) ' no doubt had the decision in the previous suit been to the effect that certain specific parcels constituted part of the inam, the choultry in the present suit could not, if it admitted the possession during the period in question here of those parcels, seek to make out that the parcels were not mam.' Nil Madhub Sarhar v. Brojo Nath Singh 21 C.M 236 is probably supportable on similar grounds, although some of the observations in the judgment seem to be open to exception. In a very recent case Kali Kumar v. Bidhu Bhusari (1912) 16 C.L.J. 89, Mookerjee and Teunon, JJ. held that an issue raised on the disputed point in a suit for rent and decided by a court would operate as res judicata in a subsequent suit for rent. Mookerjee, J. considers the point as settled beyond all controversy and refers to Ekabbar Sheikh v. Hara Bewah (1910) 13 C.L.J. 1. and Hara Chandra Bairagi v. Bepin Behari Das (1910) 13 C.L.J. 38 in support of his statement. The same view was taken by another bench of the Calcutta High Court in Maharani Beni Pershad v. Raj Kumar (1912) 16 C.L.J. 124. Sometimes in a suit for rent by a landlord against his tenant, a third party intervenes and claims the land as his own and it becomes difficult to decide whether a decision in the suit as to the plaintiff's right to rent would be res judicata in a subsequent suit regarding the title between the plaintiff in the previous suit and the intervenor. The questions material for deciding a right to rent as against a particular tenant are of course very different from the considerations that will arise in a suit for title between rival landlords. If the suit was in fact expressly or impliedly allowed to be expanded in character and was regarded also as one for the declaration of the landlord's title as against the intervenor and a decision as to title was arrived at, the finding might be res judicata in any subsequent proceedings between the two rival landlords. But a mere decree for rent against a tenant need not amount to any decision in a contest about title. This was the ground on which the decision of the Privy Council in Run Bahadur Singh v. Lucho Koer I.L.R. (1885) C. 301 proceeded, though estoppel by res judicata was avoided in that case on the ground also of the absence of concurrent jurisdiction in the court that decided the previous suit. In the present case the question raised in the previous suit, O.S. 430 of 1906 was whether patta tendered was proper. The terms in question did not relate to any incidents special for the year fasli 1314 but to the relationship between the plaintiff and the defendants generally as the owners of melwaram and the kudiwaram interests in the land respectively, Section 4 of the Rent Recovery Act VIII of 1865 required that the rent payable and all other material incidents of the tenancy should be stated in the patta to be tendered to the tenant and acccording to Section 7 of the Act no suit was maintainable unless the landlord had previously tendered to the tenant such a patta as he was bound to accept. The defendants were not bound to accept a patta which was incorrect in any particular. If the extent was wrongly stated or the rent was stated to be payable in kind while any portion of it was not, they could refuse to accept the patta. The plea raised by them in substance was that there were defects in the patta which entitled them not to accept it and that the suit should therefore be dismissed. The question therefore was whether there were any such defects in the patta. The trial would of course proceed on the defects which the defendants insisted on. With regard to the issue whether the patta was proper or not the defendants were bound to raise all objections that they could to the contents of the patta and if they failed to do so they must be taken to have raised them and all points that they could have raised must be taken to have been impliedly decided against them. Suppose the defence in this case was that the plaintiff was not the holder at all of the plaint lands. Suppose that though the defendants raised that defence in the previous suit, the matter was not explicitly decided; or suppose they did not raise the defence at all. The question being one which related not merely to the rent for the particular year, 1317, but plaintiff's right to claim rent for any year the matter must be regarded as res judicata. It has been established by the cases in this Court that a decision with regard to the proper terms of a patta to be tendered by a land-holder to his right for any one year is res judicata with regard to subsequent years, unless the terms related specially to the particular year or there was a change in terms of the tenancy (Sree Venkatachalapati v. Krishna I.L.R. (1892) M. 287, Sellappa Chettyar v. Velayutha Tevan I.L.R. (1907) M. 498. In the latter case, the tenant did not object in the earlier suit to some of the stipulations in the patta. It was held by Benson and Wallis, JJ. that estoppel by res judicata was nevertheless applicable to the case. Sankaran Nair, J. distinguishes it from the present case on the ground that in both, the suits were to enforce acceptance of pattas and not for rent and that the decision that the patta is proper would necessarily involve a finding that the lands referred to in the patta belong to the plaintiff. But the question raised related to some of the terms of the patta only and not to the ownership of the land. The trial of the question as to the ownership of the land in the later suit would not affect the decree in the earlier suit--the cause of action was different. The objections taken in the later suit were not expressly decided in the earlier suit. According to the tests adopted by the learned Judge Sellappa Chettyar v. Velayutha Tevan 30 M.K 498 must be regarded as wrongly decided. I am of opinion that the principle of that decision is clearly applicable to the present case. In both, the question raised bore on the relationship of the parties, not for the particular year in question in the earlier suit but subsisting between them during future years also. The defendant raised questions relating to the permanent relationship between the parties. He was entitled to raise them and his pleas, if successful, would be an effective answer to the plaintiff's suit. These are the tests for deciding whether the rule of res judicata is applicable. See Natesa Gramani v. Venkcitarama Beddi I.L.R. (1907) M. 510. Assuming therefore that the specific objections to the patta raised in this suit were not expressly decided in the previous suit, that point is immaterial. It is by no means clear however that one at least of the points was not decided. The finding was that the terms of the patta ' did not contain any objectionable matter.' The question as to the extent was certainly raised in the previous suit. There is nothing to show that the court did not decide everything that was comprised in the written statement of the defendants. The question as to whether the rent was not payable in kind for a portion of the lands was not raised in the written statement. Whether evidence was led with regard to it, it is impossible to say, but the court was entitled to try the issue as to the correctness of the patta on the pleadings in the case; and if any matter of attack with reference to the patta was not raised by the defendant he must be taken to have raised it, for any successful attack of the terms would be a complete defence to the suit for rent. I am of opinion therefore that the issue on the question of res judicata must be decided in the plaintiff's favour. I cannot agree with the respondent's contention that as the suit for rent related only to the year 1314, the defendant who resisted the suit on the ground that the terms of the tenancy were not properly embodied in the patta tendered by the plaintiff was entitled to keep back any objections on the ground that it would be profitable to him to do so with respect to that particular year. As the appellate court has not disposed of all the questions in the case, the case cannot be finally disposed of here. The decree of this Court in S.A. No. 610 of 1909 and the decree of the lower appellate court must be reversed and the appeal remanded for fresh disposal according to law. All costs in this Court must abide the result.
Sadasiva Aiyar, J.
17. The question for decision in this appeal is whether the defendants who are tenants under plaintiff (a landholder) are barred by res judicata owing to the decision in a previous suit brought by the plaintiff against them to recover rent for two previous Faslis (1314 and 1315) from setting up the contention that the patta tendered for the plaint Fasli (1316) contained improper terms as to the extent of the lands in defendant's holding and as to defendants' liability to pay waram rent for a portion of their holding and that hence they (the defendants) are not liable for the rent of Fasli 1316,the present suit having been brought to recover such rent.
18. The former suit brought for the rent of Faslis 1314 and 1315 is O.S. No. 430 of 1906. The Pattas tendered for those faslis contained practically the same entries as are found in the disputed patta for Fasli 1316. The defendants contended then (see Exhibit C), among other defences, that
(a) 'The pattas alleged to have been tendered are not proper' and
(b) 'The extent of defendants' jeroyati land has been very much overstated by plaintiff.'
In the present suit also, they put forward the same defences though they gave more details, viz.,
(a1) That 3 acres are ' cash-rent-paying lands.' and
(b1) the extent of lands liable to pay rent is 5 acres plus 3 acres (and not about 14 acres entered in the patta).
19. In the former suit, the very 1st issue raised the question 'whether the pattas tendered are proper' and the finding of the Court was as follows:
'The terms of the pattas Exhibits E and F do not contain any objectionable matter. I accordingly find the 1st issue in the affirmative.' According to Section 4 of the Rent Recovery Act VIII of 1865, 'the patta shall contain... the local description and extent of the land; the amount and nature of the rent according as the same is payable in money or in kind or by a share of the produce etc., etc.' Thus, when the Court in the former suit found no objectionable matter in the pattas for Faslis 1314 and 1315 and when it found the 1st issue in the case (viz., whether the pattas tendered were proper) in the affirmative, it clearly found,
(a2) that the nature of the rent payable for the entire lands is waram share of the produce as entered in the pattas and
(b2) that the extent of the lands to pay rent is 14 acres as found in the pattas.
20. The court undoubtedly overruled defendant's contention that the extent was not 14 acres and that the pattas were also otherwise improper. It is not clear whether defendants at the trial of that suit prominently put forward the contention that 3 acres of the lands were liable to pay only cash rent and not waram produce but it cannot, in my opinion, be denied that when they attacked the pattas as containing improper terms, they were bound to put forward all the grounds on which they attacked the pattas as improper and could not be allowed to put forward some grounds of attack alone for one fasli and other grounds for other faslis. As has been decided in Vythilinga Mudaliar v. Ramachendra Naicker (1904) 14 M.L.J. 373, Sellapa Chettyar v. Velayutha Tevan I.L.R. (1907) M. 498 and Natesa Gramani v. Venkatarama Reddi I.L.R. (1907) M. 510, a decision as to the standing terms of a patta between a landlord and a tenant for one fasli is res judicata in respect of such terms for all subsequent faslis, though of course, the tenant might prove in a subsequent fasli that by the act of God or anything which has subsequently happened (i.e., by proper relinquishment of a portion of his holding etc.) and which gives him a legal right to have the terms modified, the conditions and terms of the tenancy have been altered.
21. The pattas for Faslis 1314 and 1315 having been expressly found to be proper pattas (that is, to contain the proper extent of land in defendants' holding and proper rates and kinds of rent) in the former suit, the defendants are, in my opinion, clearly barred by res judicata from contending that a similar patta tendered for plaint fasli (1316) was not a proper patta. The learned Judge whose judgment is under appeal before this Full Bench held (if I understand rightly his observations in pages 5 to 8 of his judgment)
(a) that the question as to the extent of the lands to be entered in the annual patta and the kind of rent leviable on 3 acres of the holding was not 'directly and substantially in issue' in the former suit because a decision on the above question was 'not essential for the decree that was passed in O.S. 430 of 1906' and was 'not essential for the relief finally granted in the former case' as 'a decree for rent does not necessarily involve' or require a decision as to the terms of the patta or the extent of the land for which the rent has to be paid.'
(b) that assuming that a decision on that question was essential in,the former suit and assuming therefore that' the question must be deemed to have been directly and substantially in issue under Explanation IV to Section 11 of the Civil Procedure Code, even though the parties did not raise that question as they were bound to raise it,' it did not follow that the question must be deemed to have been 'as a matter of fact' ' heard and decided.'
(c) that in the former suit, the question in the present suit was not 'heard and decided' expressly and ' we are not bound to imply' that it was so decided.
(d) that the ' causes of action' and the ' subject-matters' of the two suits are different.
(e) that it ' is not enough' that ' a determination' in the present suit (about the extent of lands and rate of rent, ' would be inconsistent with the decision in the previous case that the patta then tendered was proper' to prevent such determination in the present suit by the bar of res judicata and
(f) that on all the above grounds, the question in the present suit whether the patta for fasli 1316 is a proper one is not concluded by the decision in the former suit.
22. A decree for rent between an ordinary landlord and an ordinary tenant may not necessarily involve a decision as to the terms of the lease or as to the extent of land comprised in the lease. But a decision under the Rent Recovery Act VIII of 1865 where the landlord sued for rent on the allegation that the standing terms of the tenancy were contained in the patta tendered by him mentioning particular terms and the particular extent of the holding does, in my opinion, involve and require a decision as to whether the terms of the lease are proper and the extent of land covered by the holding is as alleged in the patta tendered by the landlord and hence the reason (a) given by the learned Judge seems to me to fail. The case in Nil Madhuh Sarkar v. Brojo Nath Singha I.L.R. (1895) C. 236 quoted by the learned Judge is therefore not applicable and the earlier case in Gobind Chunder Koondoo v. Taruck Chunder Bose I.L.R. (1877) C. 145 and the cases in Venkatachalapathi v. Krishna I.L.R. (1892) M. 287, Natesa Gramani v. Venkatarama Reddi 30 M.k 510, Pittapur Raja v. Buchi Sitayya I.L.R. (1885) M. 219 and Sellappa Chettyar v. Velayutha Tevan I.L.R. (1907) M. 498, also quoted by the learned Judge and referred to by him with approval, seem to me to clearly govern this case.
23. I shall next deal with the argument that even though the question was directly and substantially in issue because the decision involved the finding on that issue, it must also have been heard and decided before it can be deemed res judicata. There are no doubt observations in Kailash Mondul v. Baroda Sundari Dasi I.L.R. (1898) C. 711, Woomesh Chandra Maitra v. Tiarada Das Maitra I.L.R. (1900) C. 17 and Rajendranath Ghose v. Tarangini Dasi (1904) 1 C.L.J. 248 to the above effect, but as pointed out by Subramania Aiyar J. in Arunuchalam Cheti v. Meyyappa Chetti 21 M.k 91 if a Court is bound by Explanation II to Section 13 of the old Civil Procedure Cods (corresponding to Explanation IV to Section 11 of the new Code), to adopt and act upon the fiction that a matter which might and ought to have been made a grouud of defence or attack in the former suit should be deemed to have been a matter directly and substantially in issue in such suit that same explanation necessarily imposes the duty of acting upon the further fiction that that matter was also heard and decided and adjudicated upon in the former suit. Explanation II to Section 12 would be meaningless as pointed out by the Allahabad High Court in Sri Gopal v. Pirthi Singh 20 A.J 110 if it were necessary in cases which were covered by it that the matter should have been, as a matter of fact, heard and finally decided in the previous suit. That case in Sri Gopal v. Pirthi Singh 20 A. K110 follows the Privy Council cases in Mahabir Pershad Singh v. Macnaghten 16 C. G 682 and Kameswar Pershad v. Rajkumari Ruttan Koer 20 C.M 79 and the interpretation of Section 13 by the Allahabad High Court in that case was approved and adopted by the Privy Council when the case went on appeal before their Lordships in Sri Gopal v. Pirthi Singh 24 A K 429. The cases in Kailash Mondul v. Baroda Sundari Dasi I.L.R. (1898) C. 711, Woomesh Chandra Maitra v. Barada Das Maitra I.L.R. (1900) C. 17 and Rajendranath Ghose v. Tarangini Dasi (1904) 1 C.L.J. 248 being opposed to the above decision of their Lordships of the Privy Council can, no longer, be considered good law. In fact, the Calcutta High Court itself in Jamadar Singh v. Serazuddin Ahamad Chaiudhuri 35 C.K 979 has virtually dissented from the cases in Kailash Mondul v. Baroda Sundari Dasi I.L.R. (1878) C. 711 and Woomesh Chandra Maitra v. Barada Das Maitra I.L.R. (1900) C. 17 one of the learned Judges says in Jatnindar Singh's case 3 ' It is very difficult to see how a matter, which ex hypothesi was not before the former Court, could possibly have been heard and finally decided by it; and it seems to me that if this were necessary the whole of Explanation II (to Section 13) would be rendered meaningless.' Their Lordships also decided in that case that the decision in Sri Gopal v. Pirthi Singh 20 A.K 110 is good law and that it is not necessary that the subject-matter of the two suits must be the same before Explanation II to Section 13 can be applied. I might however state that this question (b) does not really arise in this case because I am unable to agree with the learned Judge whose Judgment is under appeal that the present question was not as a matter of fact heard and decided in the former suit. In the statement of facts in the beginning of this judgment, I believe I have shown that the question was really heard and decided as the defendant raised the plea as to the impropriety of the patta in the former suit and his plea was expressly overruled. (See Soor jomonee Dayee v. Suddanund Mohapatter (1873) 12 Ben. L.R. 304, which decides that pleadings must be looked into to understand what was in issue and what was decided in the former suit.) The fact that the cause of action and the subject-matters of the two suits are different is immaterial because the only question is whether the decision in the former suit on certain issues of fact is res judicata in the present suit and it is not necessary under Section 11 that the causes of action and the subject-matters of the two suits should be the same for a decision on issues of fact to constitute res judicata in a subsequent suit. Lastly, I am unable to hold that the decision as to the terms of the patta in the former suit was on a mere collateral question in the former suit. Section 11 does not use the word 'collateral but uses the words 'directly and substantially in issue.' The Privy Council case in Misir Ra jhobardial v. Sheo Baksh Singh 9 C.J 439 was dicided mainly on the ground that the court which tried the first suit was not competent to try the second suit and hence that the decision of an issue in the first suit was not res judicata in the second suit. There is an expression at page 445 of the judgment that the issue decided in the former suit was merely a ' collateral' issue though the facts show that it was a direct and substantial issue. In the Duchess of Kingston's 7 case it would seem to have been held that where the court which decided the first suit was not competent to decide the second suit, the question of fact decided by the former Court though material for' the decision must be deemed to have been ' collateral' to the subject-matter of the first suit. It was with reference to that use of the word ' collateral' that the Privy Council held that the court which decided the first suit dealt with that issue only as a collataral issue. If the Privy Council by their obiter dictum intended to state that the question was not directly and substantially in issue, in the former suit (a dictum irreconcileable with the Privy Council decision in Pahalwan Singh v. Maharaja Muheshur Buksh Singh Bahadur (1872) 12 Ben. L.R. 391 such dictum must be held to have been overruled by their later decisions already set out including Sree Gopal v. Pirthi Singh I.L.R. (1902) A. 429. The latest Privy Council case in Mahomed Ibrahim Hossain Khan v. Atnbika Pershad Singh 39 C.A 527 seems to me to be conclusive on the matter, for their Lordships decide that Section 13 explanation II would bar a defendant who omits to raise a material issue in a former suit when he was a party thereto even though that issue was not as a matter of fact heard and decided in the former suit. The case in Masilamania Filial v. Tiruvengadam Pillai I.L.R. (1908) M. 385 seems also to me to be conclusive on this question of res judicata. It is no doubt, not enough to constitute rea judicata that a determination contra in a later suit would be inconsistent with the determination in the former suit; for there is also a further requisite that the court which decided the former suit should have been competent to decide the later suit. In this case, this latter requisite also is complied with and I am therefore clear that the findings of fact in the former suit are res judicata, one of those findings being that the defendants held the extent of lands mentioned in the patta tendered to them and are bound to pay rent according to the terms of the said patta.
24. I may now refer shortly to one important question which was lightly touched upon during the arguments, namely, whether where the subject-matter of the former litigation and the relief claimed therein were the same as those claimed in the subsequent litigation, the plaintiff can bring two suits on what is put forward by him as two different causes of action. The question does not really arise in this case but I wish to state that I agree with Subra-innniii Alyar, J. in Arunachellam Chetty v. Meyyappa Chetty I.L.R. (1897) M. 91 that Courts should try their best to hold that the causes of action in such cases are substantially the same. I shall here quote West J's observations (quoted also by Subramania Aiyar, J. 'Under systems such as the Roman Law or the English Common Law, in which the development of legal rights and duties has been greatly influenced by the re-action of a highly artificial mode of procedure, appropriate forms of action can be found for nearly all the ordinary cases which the legal consciousness of the community recognises as justifying an exercise of the coercive power of the State; but, as the variety of human relations greatly exceeds that of the conceptions, upon which a system of actions can be framed, it happens that the same transaction or group of circumstances may furnish a grouud for several different actions. In such cases, different causes of action arise to the party injured; but as it is felt that the same set of facts, which the mind at once grasps as jurally integral, ought not to be made the basis of repeated proceedings, the complaining party is allowed to frame his complaint in various ways and the rule obtains that all the circumstances, which exist when the former of two actions is brought and can be brought forward in support of it, shall be brought forward then, not reserved for a second action arising out of the same events. The cause of action is regarded as identical, though the form of action differs on the second occasion and the test applied is whether the evidence to support both actions is substantially the same (Hitchin v. Campbell 2 W. Bl. 827, Martin v. Kennedy 2 Bos. & Pul. 69. Under a freer system of procedure, such as that of the Equity Courts in England or of the Civil Courts in India, second suits are to be admitted more sparingly than when the plaintiff has to proceed by set forms of action. As he can bring forward his whole case unfettered by artificial restraints and seek all remedies that the Court can justly award upon the facts proved, there is no reason why he should be permitted to harass his opponent and occupy the time of the courts by repeated investigations of a set of facts which ought all to have been submitted for adjudication at once. His cause of action, into whatever Protean forms it may be moulded by the ingenuity of pleaders, is to be regarded as the same, if it rests on facts which are integrally connected with those upon which a right and infringement of the right have already been once asserted as a ground for the court's interference.'
25. I am aware that Benson and Bash yam lyengar JJ., in Ranuiswatni Ayyar v. Vythihatha Ayyar I.L.R. (1903) M. 761 discuss some of the observations in the decision in Arunaehellam Chetty v. Meyyappa Chetti 21 M.K 91 with disapproval and Subramania Aiyar J., himself in Veerana Pillai v. Muthukumara Asari 27 M.K 102 said that 'anything in the language used' by him in Arunachellam Chetty v. Meyyappa Chetty 21 M.K 91, 'inconsistent with the view of the law as expounded' in Ramaswami Ayyar v. Vythinatha Ayyar I.L.R. (1903) M. 760 'can no longer be treated as an authority.' I am, however, inclined to hold, with due deference to the contrary opinions, that all the observations in Arunachellam Chetty v. Meyyappa Chetty I.L.R. (1897) M. 91, as to the scope of the doctrine of res judicata are sound law and those observations in Ramaswami Ayyar v. Vythinatha Ayyar I.L.R. (1903) M. 760 which conflict with the views in Arunachellam Chetty v. Meyyappa Chetty I.L.R. (1897) M. 91 seem to me to draw rather fine distinctions and in my humble judgment would lead to unnecessary and undesirable multiplicity of litigation. However, in so far as any principle in Anmachellam Chetty v. Meyyappa Chetty I.L.R. (1897) M. 91 is directly inconsistent with the later Full Bench decision of the Madras High Court in Thrikaihat Madathil Raman v. Thiruthiyil Krishnen Nair I.L.R. (1903) M. 91, (which approves of the decision in Ramaswami Ayyar v. Vythinatha Ayyar I.L.R. (1903) M. 760, but which does not refer to and does not expressly overrule Arunachellam Chetty v. Meyyappa Chetty 21 M.K 91 though it expressly overruled only Rangasami Pillai v. Krishna Pillai 22 M.K 259, I am not anxious that such directly overruled principle should be again reconsidered. As at present advised, I do not see anything in Thrikaikat Madathil Banian v. Thiruthiyil Krishnen Nair 26 M. K153, irreconcileably inconsistent with any observation in Arunachellam Chetty v. Meyyappa Chetty 21 M.K 91 as two separate mortgages can be separately redeemed, especially if there is an express understanding to that effect between the parties and all that Thrikaikat Madathil Raman v. Thiruthiyil Krishnen Nair 21 M.K 91 decided was that the failure of a suit to redeem one mortgage is not a bar to a suit to redeem another.
26. I would for the reasons mentioned in paragraphs 5 and 6 of this opinion reverse the judgment of the lower courts and remand the case to the lower appellate court for a fresh disposal of the appeal before it, the District Munsif not having decided the questions involved in issues 4 and 5 and the lowor appellate court also not having considered all the issues. The costs hitherto will abide the result.