Sadasiva Aiyar, J.
1. The defendants 1 to 3 are the appellants. The facts are a little complicated. Though the decision of this second appeal ultimately depends upon our opinion on a pure question of law, it is necessary to state the material facts for clearly dining the legal question.
2. The plaintiff and the defendants are neighbours, the plan Exhibit III showing their respective houses and house sites. Roughly we might say that the plaintiff's house and his vacant site are west and north of the defendant's house and backyard site.
3. In the plaintiff's vacant site (north of defendants' house and west of the defendants' back yard) there is situated a well marked A which well is common to both the plaintiff and the defendants. In 1905 the plaintiff tried to enclose the well by walls so as to give the defendants access only to the southeastern half of the circumference of the wall (and not to the remaining north-western half) from the defendant's back door (in the northern wall of the defendants' house) situated to the south-east of the well. 'The defendants then obstructed the plaintiff and the plaintiff brought the suit O.S. No. 425 of 1905, for an injunction against the defendants' attempted obstruction to the construction of the walls. The plaintiff's allegations in the plaint in that suit were (a) that the whole vacant site (within and near the south eastern corner of which the Well was situated and including the said well site) belonged to the plaintiff, (b) that the defendants had only the right of easement of taking the water from the well and (c) that as the owner of the servient tenement, the plaintiff was entitled to put up walls in his own site leaving a convenient way to the defendants to approach the well from their backyard door (south-east of the well) to the south-eastern half portion of the circumference of the well.
4. The defendants contended in that suit that the whole vacant site itself including the site of the well belonged to themselves as part of their house. The District Munsif found in that suit that the site did not belong to the Plaintiff but to the defendants, and so dismissed the suit. On appeal, the District Judge was inclined to differ from the District Munsif on the question of title to the vacant site in which the well stood, but he held that the well itself belonged to both parties and hence that ' convenience and mutual relations between neighbours' dictated that the plaintiff's suit for an injunction should be dismissed and he therefore confirmed the' District Munsif's decree. On Second Appeal, this Court made the following observations in its judgment:
The District Munsif found that the site did not belong to the plaintiffs and so dismissed the suit. The District Judge has not stated any finding on the question of ownership and though he states his opinion that the defendants' access to the site cannot be obstructed, he does not state any finding as to the legal character of the defendants' right.' Then, directions were issued to the District Judge to send up findings on the following issues:
(1) Does the site in question belong to the plaintiffs or to the defendants and have the plaintiffs a right to build a wall as alleged in the plaint?
(2) Whether the defendants have any right in the site in question, so as to entitle them to prevent the plaintiffs from building the wall?
5. The District Judge's findings (in substance) were as follows: (a) that the vacant site except the site of the well itself belonged to the plaintiff; (b) that the well and its site belonged in common to both parties; (c) that the defendants' contention that even if they had no ownership right in the surrounding vacant site, they had an easement of right of way, not only from their house (to the south-east) to the whole circumference of the well but also another easement of way along a lane running south to north along the western boundary of the vacant site had not been established, they not having used any such way as of right, though they might have been passing across all portions of the vacant site and along the western boundary line into the public lane north of the vacant site, without objection through plaintiff's permissive indulgence. The District Judge finally said that the defendants had as owners of half the well such rights over plaintiffs' vacant site as were necessary for the ordinary use and enjoyment of the well and that such rights would be infringed by the construction of the walls ' as set out in the plaint and schedules' and that the defendants were therefore entitled to prevent the ' building of walls in the manner proposed.'
6. This Court then pronounced the following final judgment: ''We accept the finding: though the site round the well is found to be the property of the plaintiffs they are not entitled to build on it so as to obstruct the defendants' access to the well and to every part of the surrounding wall which is common to the plaintiffs and themselves. The suit was rightly dismissed and we dismiss the Second Appeal. As the defendants claimed ownership of the site and the finding is against them on that question, we dismiss the appeal without costs.'
7. This final judgment of the High Court in the former suit is dated 15th August 1910. Four months afterwards, in December 1910, the plaintiff attempted to raise another wall so as not to infringe the defendants' rights of convenient access from their house to any portion of the circumference of the Wall of the well. Then also the defendants obstructed. So he brought the present suit in July 1911 for an injunction and other proper reliefs.
8. The defendants contended (among all sorts of other defences) (a) that the vacant site belonged to them and they were not bound by the finding contra in the former suit; (6) that, in any event, the defendants had a right of access to the lane running to the west of the site; and that the plaintiff was not entitled to obstruct by his wall access to that lane; and (c) that even if the defendants had the right of access only to the entire circumference of the well, the wall proposed to be built by the plaintiffs would not give them as convenient and full an access to the well as they were entitled to.
9. This last contention need not be further considered as, before the District Munsif, the parties put in a joint statement that the construction of a wall as mentioned in that joint statement would give the defendants full and reasonable access all round the well. The District Munsif, who ultimately decided the suit (there was at first a judgment against the plaintiff by a previous Munsif, which was upset and the suit was remanded for fresh disposal) held that the contentions (a) and (b) were res judicata against the defendants by the final decision of the High Court in the former suit. He therefore passed a decree restraining the defendants from interfering with the plaintiff's construction of the wall in the manner proposed in the Joint statement. The defendants appealed to the District Court which transferred the appeal to the Subordinate Judge of Mayavaram for disposal. The learned Subordinate Judge dismissed the appeal holding (with the District Munsif) that the defendants were bound by the findings in the former suit namely, (a) that the plaintiffs were and the defendants were not the owners of the vacant site around the well; (b) that the defendants had no right of easement of way through that site and along the lane running in the western portion of the site to the public northern street called Kothan Lane.
10. Before us in second appeal, the legal contentions argued were as follows: (Ground No. 5 in the S. A, Memo.) 'The Courts below erred in holding that the determination of an unnecessary issue in the judgment in the Second Appeal No. 1225 of 1907 operated as res judicata, when that decision was not the basis of the decree passed by the High Court.' (6) 'As the High Court dismissed the plaintiff's suit on a different point and in spite of the finding as to the ownership, the law of res judicata would not apply.' (7) 'The Subordinate Judge erred in supposing that the determination of any issue in the previous suit would operate as res judicata.'
11. The two findings in the former suit which are in controversy now are (1) the plaintiffs are the full owners of the vacant size including the western lane site; (2) the defendants have no right of way to and along the lane and they cannot therefore object to the wall as propsed in the joint statement on the ground that though it gave them full access to all portions of the well, it did not give them access to the lane.
12. So far as ownership in the vacant site is concerned, even accepting as correct the very limited rule of res judicata contended for by the defendants, the High Court in their final judgment in the former litigation refused the defendants their costs on the express ground;that the defendants claimed ownership of the site and the finding was against them on that question. The High Court decision, therefore at least as to costs, was expressly based on that finding as to the ownership of the site and hence that finding is clearly res judicata in this suit.
13. Then comes the more difficult question whether the finding that the defendants have no right of easement to pass along the vacant site to the lane is also res judicata. It was first sought to be argued by the appellants that the District Judge himself in the former suit did not give any such finding because he mentioned it only in the 3rd paragraph of his finding and not in the fifth and final paragraph of his finding. I do not think that this argument needs further notice.
14. Then it was contended that though the District Judge might have given that finding in the former suit, the High Court did not confirm that finding. As we read the judgment of the High Court, however, we entertain no doubt that this Court accepted all the conclusions of the District Court which included not only the finding that the defendants had a right of access to all parts of the wall of the well but also that they had no right of easement of way to and along the western lane.
15. Having thus cleared the ground, we have left the comparatively simple question for decision, namely, whether when the plaintiff's former suit was dismissed notwithstanding the finding against the defendants that they had no right of easement to pass through the vacant-site to go to the lane, this latter finding is res judicata against the defendants in the present litigation.
16. Numerous cases and elaborate arguments were placed before us by Mr. S. Rangachariar and by Mr. B. Seetharama Rao on either side. I shall deal only with the more important cases. Mr. Rangachariar relied principally upon an observation in the Privy Council decision in Bun Bahadur Singh v. Lucho Koer (1884) I.L.R. 2 Cal. 301 (P.C.) and on observations in Venkatasuryanarayana v. Sivasankaranarayana (1914) l7 M.L.T. 85. Mr. Seetharama Rao relied, on the other hand, principally on the Privy Council case in Krishna Behari Roy v. Bunivari Lall Roy (1875) I.L.R. 1 Cal 144. (P.C.) and upon this Court's decision in Varathayyangar v. Krishnasami I.L.R. (1886) Mad. 102. In Run Bahadur Singh v. Lucho Koer (1884) I.L.R. 11 Cal. 301 (P.C.), the facts were as follows: The plaintiff sued his brother's widow for possession of property on the ground that he and his brother were undivided in interest at the brother's death and that the widow was in unlawful possession as the plaintiff, being the survivor, was solely entitled to the property. Before the suit was brought, there was a succession-certificate-proceeding in which it was held that the two brothers were divided. The widow defended the suit on the plea that her husband and the plaintiff were divided in interest and she claimed a finding in her favour on this question both on the evidence let in by her as to the division and on the legal ground that the finding in her favour as to division in the succession-certificate-proceedings was res judicata against the plaintiff. She also relied upon a finding in another suit brought for rent against a tenant which suit was within the cognizance of a District Munsif (who had no authority to try the later suit which was filed in the Subordinate Judge's Court). The Subordinate Judge on the evidence held that the brothers were separate in estate though he decided against her contention that the decisions in the certificate-proceedings and in the suit in the District Munsif's Court were also res judicata in her favour. The High Court on appeal upheld her contentions as to res judicata in her favour and instead of stopping with that, they went into the evidence and gave a finding on the evidence that the brothers were joint in estate. They however held that as that question was r6s judicata and had to be therefore decided by themselves against their finding on the evidence, they dismissed the appeal.
17. Then on the final appeal to the Privy Council, their Lordships agreed with the Subordinate Judge and differed from the High Court on the question of res judicata. Hence, their Lordships had to go into the merits and on the merits also, they agreed with the Subordinate Judge and differed from the High Court. During the course of their Lordships' judgment, there are two sentences at page 306 as follows: 'The widow has not appealed against the decree nor could she because it is in her favour, but she has appealed against the finding of the High Court on the evidence that the brothers were joint in estate.' 'It may be supposed that her advisers were apprehensive lest that finding should hereafter be held conclusive against her, but this could not be so, inasmuch as the decree was not based upon it but was made in spite of it.' I feel bound to state with due respect that taking advantage of these two sentences, several decisions in all the High Courts have tried to whittle down the beneficial doctrine of res judicata so as to promote vexatious litigation. It will be seen that in the case before their Lordships though the High Court gave a finding on the evidence that the brothers were joint in estate, they also gave the exactly opposite finding that the brothers were divided in interest because they thought themselves bound by the doctrine of res judicata to give that exactly opposite finding and their decree was rightly based upon this latter finding as to division and ignoring the former finding asto joint interest. Their Lordship's observations when read in the light of this state of facts can only mean that where in spite of an useless finding on the evidence, an exactly opposite finding is arrived at by the same Court as the basis of its decree, then the former useless finding can never be res judicata in subsequent proceedings. The rule enunciated in some of the decisions of the High Courts that no finding against defendants can ever be res judicata under any circumstances if the plaintiff's suit was ultimately dismissed (notwithstanding that finding) goes in my opinion far beyond their Lordship's intentions.
18. I shall now consider the decision in Venkalasuryanarayana v. Sivasankaranarayana (1914) 17 M.L.T 85, decided by the Chief Justice and Seshagiri Aiyar, J. In this case, the plaintiff (evidently as reversionary heir) sued for a declaration that the adoption of the defendant by the widow of the last male-owner was invalid. The District Court dismissed the suit as barred by limitation as being brought more than 6 years after the plaintiff had knowledge of the adoption but gave also a finding against the defendant that his adoption was invalid through want of authority in the widow. The defendant appealed against the finding that his adoption was invalid. This Court while dismissing the appeal because it was an appeal against a finding remarked that 'it was suggested on appellant's behalf that the finding may operate as res judicata against him, 'but that' there was no foundation for this contention.' Then they refer among other decisions to the Privy Council case of Run Bahadur Singh v. Lucho Koer I.L.R. (1834) Cal. 301, as authority for their view. In the first place the observation is obiter because the real basis of the decision was that no appeal was allowed by the Civil Procedure Code against a mere finding where the decree itself was entirely in the defendant's favour. In the next place, the exact scope of the short observation of their Lordships of the Privy Council in Run Bahdur Singh v. Lucho Koer I.L.R. (1834) Cal. 301, (which I have already quoted) has not been discussed in detail and it is, no doubt, true that in some classes of cases at least, a finding against defendants by a Court which finally dismissed the plaintiff's suit on some other ground cannot be relied on as res judicata against the defendant in a subsequent suit. The case of Run Bahadur Sing v. Lucho Koer I.L.R. (1834) Cal. 301 belongs to one of those classes of cases. In that case the finding relied on, (as to the joint interest of two brothers) was completely nullified by an opposite finding, (as to the division of status between the brothers, based on res judicata). That case well illustrates one of the classes of cases in which the finding in the first suit will not constitute the decision res judicata in the subsequent suit. Venkatasuryanarayana v. Sivasankara-narayana (1914) 17 M.L.T. 85, belongs to another such class, namely, where the plaintiff is non-suited on the ground of limitation, res judicata, mis-joinder, insufficient court fees on the plaint, jurisdiction or a like technical and preliminary ground and yet the court proceeds to give a finding on the merits against defendants to save a remand by the Appellate Court. In these classes of cases also, such findings in the first suit will not be res judicata if, on appeal, the appellate Court does not itself think it necessary to give its decision on them, or if in case there is no appeal, it is evident that the first Court did not intend its findings to be final.
19. At this stage, I might turn to the condsideration of the section itself in the Civil Procedure Code on this point, Section 11 says (omitting the immaterial portions); 'No Court shall try any issue in which the matter directly and substantially in issue in a former suit between the same parties has been heard and finally decided in a Court competent to try such subsequent suit and has been heard and finally decided by such Court.' The only condition (besides conditions not in dispute and irrelevant (to our present subject) imposed by the section to restrict the rule prohibiting a re-trial of an issue (besides the other admitted conditions) is that the issue should have been heard and finally decided in the first suit. There is no further condition that the decision of the issue should have been the basis of the decree. It may be that it should not be wholly inconsistent with the decree (this is not the same thing as the decree being in spite of the finding) or with any other finding which is the basis of the decree and which nullifies its effect as in the Privy Council case of Run Bahadur Singh v. Lucho Koer) I.L.R. (1884) Cal. 301. It may also be that an issue should not be held to have been finally decided against the defendant when it is clear from the judgment that the Court did not intend it as a final decision on that particular point, such intention being ordinarily presumed where the suit is decided against the plaintiff on a preliminary point as to limitation etc.
20. In the present case, I have no reasonable doubt that the High Court decided and intended to decide finally in the former litigation that the defendants had no right of access to the lane through the plaintiff's vacant site and such a decision is res judicata, and the fact that the plaintiff's suit was dismissed does not prevent the operation of the rule deducible from the plain language of the section in the Civil Procedure Code.
21. I am aware that there are several Calcutta cases in which it has been broadly laid down that no finding against the defendant is res judicata against him, where the suit is finally dismissed unless that finding is incorporated in the decree as a declaration of rights and liabilities. I do not intend to consider them all nor the Bombay and Allahabad cases holding similar views and I only wish to state that I respectfully dissent from the decisions in these following particular cases, namely, in Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee I.L.R. (1886) Cal. 17, in Thakur Magundeo v. Thakur Mahadeo Singh I.L.R. (1891) Cal. 647, and in Parbati Debi v. Mathura Nath Banerjee I.L.R. (1912) Cal 29. I might add that these Calcutta decisions cannot in my opinion be reconciled with the decisions of the same Court in Niamut Khan v. Phadu Buldia I.L.R. (1880) Cal. 319 (which was a Full Bench decision of five Judges and which was in my opinion, wrongly held in Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee I.L.R. (1886) Cal. 17 to have been overruled by the observations of their Lordships of the Privy Council in Run Bahadur Singh v. Lucho Koer I.L.R. (1884) Cal. 301, in Khater Mistri v. Sadruddi Khan I.L.R. (1907) Cal 922 and Ekabbar Sheikh v. Hara Bewah (1910) Cri.L.J.1. (Sir Lawrence Jenkins, C.J. was a party to the decision in this last case).
22. I shall now turn to the more important decisions which were relied on by Mr. Seetharam Rao and which, I think, support the view I have taken. In Krishna Bchari Roy v. Bunwari Lall Roy (1875) I.L.R. 1 Cal 144 (P.C.) the facts were as follows: B, as adopted son and heir of G, instituted a suit to set aside certain Putni leases on the ground that they were not binding upon him. The Putni Lessee--defendants raised two pleas namely, (1) that B the plaintiff was not the adopted son and heir of G and (2) that the Putni leases were binding upon him even if he was the adopted son and heir as they were given for a proper and necessary purpose. Then K, the reversionary heir of G, was made a supplemental defendant and he also denied the plaintiff's status as adopted son. The first court found (a) that the adoption was true and valid (b) that, however, the putni lease was granted for a proper and necessary purpose, and so that Court dismissed the suit. The Putnidars did not appeal, but K the reversionary heir, appealed against the finding as to adoption. According to the present prevailing course of decisions, he had up right of appeal but, anyhow, he appealed and his appeal was unsuccessful and a second appeal to the High Court was also unsuccessful. Then he brought a second suit to set aside the adoption and it was contended by the adopted son that the finding in the former suit in favour of his adoption was res judicata against K. That view prevailed in the lower Courts and also in the Privy Council, Their Lordships of the Privy Council say: It is unnecessary to go at length into the reasons for the decision because those reasons appear in a recent judgment of this Board in the case of Soorjomonce Dayee v. Suddanund Mohapatter (1873) 12 B.L.R. 304: L.R.IndAp Sup. 212. In that judgment it is said 'Their Lordships are of opinion that the term 'cause of action' is to be construed with reference rather to the substance than to the form of action. But even if this interpretation were not correct, their Lordships are of opinion that this clause in the Code of Procedure would by no means prevent the operation of the general law relating to res judicata, founded on the principle 'nemo debet bin vexari pro eadem Causa'. This law has been laid down by a series of cases in this country with which the profession is familiar. It has probably never been better laid down than in a case which was referred to--Gregory v. Molesworth (1747) 3 Atkyns 626 --in which Lord Hardwicke held that where a question was necessarily decided, in effect though not in express terms, between the 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 2 Smith's L. C. 6th edition 679.'
23. It will be noticed that in the above case, the finding on a question of fact arrived at in a former suit against the defendant was held to be res judicata, even though that suit itself had been dismissed on another ground, namely, that the Putni sought to be set aside was binding on the plaintiff.
24. The next case I shall refer to is the case in Varathayyangar v. Krishnasami I.L.R. (l886) Mad. 120 decided by Muthusawmy Aiyar and Parker, JJ. The facts were as follows: V. sought in the first suit to eject K. from a certain land alleging that K was a trespasser. K pleaded that he held as mortgagee under two documents one for Rs. 1,000 and the other for Rs. 50. On second appeal, it was held that K was entitled to defend his possession only by virtue of the mortgage for Rs. 50 and that his other mortgage for Rs. 1,000 was invalid for want of registration. The suit was however dismissed as the plaintiff's claim was to eject the defendant as if he was a trespasser which defendant was not. Then V brought the second suit to redeem the mortgage for Rs. 50. The defendant again set up that he had a further mortgage for Rs. 1,000. The District Judge held that notwithstanding the finding in the former suit that the mortgage for Rs. 1,000 was not binding upon the plaintiff, the defendant held a mortgage for a total sum of Rs. 1,050 (Rs: 1,000+Rs. 50). He however dismissed the second suit principally on the ground that it was barred by Sections 13 and 43 of the old Procedure Code. On second appeal, the learned Judges say :' The decision of the question however, whether respondent could defend his possession under the mortgage for Rs. 1,000 and if not under document 2 ' (which was for Rs. 50)' was conclusive and binding upon the parties to that suit and the respondent' (that is the defendant) ' is therefore estopped from now alleging the contrary.' Thus, they clearly held that the defendant in that case was bound by the decision against him in the former suit that the bond for Rs. 1,000 was not binding on the plaintiff even though the decree in the former suit was a decree dismissing that suit wholly. My opinion that the observations of their Lordships of the Privy Council in Bun Bahadur Singh v. Lucho Koer I.L.R. (1884) Cal. 301, should not be extended beyond its legitimate application to the facts of that case, (and its application to the decision of the High Court which gave two contradictory findings and which their Lordships of the Privy Council were criticising) finds strong support from the decision in Krishna Behari Roy v. Bunivari Lall Roy I.L.R. (1876) Cal. 144, which their Lordships did not refer to, much less overrule in Run Bahadur Singh v. Lucho Koer I.L.R. (1884) Cal. 301. As I said already, in Krishna Behari Roy v. Bunvari Lall Roy I.L.R. (1876) Cal. 144, the first suit was dismissed notwithstanding or in spite of the decision against the defendant K as to the validity of the plaintiff's adoption and yet, the finding against the defendant in the former suit was held to be res judicata against that party in the second suit. Here I might be permitted a few general observations. It has been argued that as the doctrine of res judicata prevents a Court from going into the merits it should be very strictly and guardedly applied. If this means that where a former decision is relied on as res judicata, it and its contents should be strictly proved and mere ambiguous passages in the judgment should not be pressed in favour of the party claiming res judicata in his favour, I agree. But if it is intended to be argued that even where the finding is clear and where the intention of the Court to give a definite decision which is not inconsistent with the decree or with any other finding is also patent, still the Court should try its best to evade the very beneficial doctrine that a man should not be twice vexed in respect of the same contest as to his rights and the time of the Courts should not be wasted by trying the same matter several times, I entirely dissent. Just as Mr. Justice Mahmood said in a well-known Allahabad case that the doctrine that statutes of limitation as restricting the trial of questions on the merits should be strictly construed is a dangerous doctrine because statutes of limitation are also statutes of repose, based on public policy, so I would hold that the doctrine of res judicata should not be unduly conditioned and qualified by all sorts of ingenious attempts at evasion, where there has been in fact a fair contest on a question in dispute between the parties and the Court has intended to give and has given a final decision on that question. Here I might quote certain passages from the decision of their Lordships of the Privy Council in Sheoparsan Singh v. Ramnandanprasad Singh I.L.R. (1916) Cal. 694. There has been much discussion at the bar as to the application of the plea of res judicata as a bar to this suit. But in view of the arguments addressed to them, their Lordships desire to emphasize that the rule of res judicata while founded on ancient precedent is dictated by a wisdom which is for all time. 'It hath been well said' declared Lord Coke 'interest reipublicae at sit finis litium; otherwise great oppression might be done under colour and pretence of law (6 coke 9 A). Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnaneswara and Nilakanta include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana.' 'And so the application of the rule' (that is the rule of res-judioata) ''by the Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law.'
25. In this case, to repeat, this Court finally decided as a matter of substance in the former suit that the defendants had no right of ownership to and no right of easement in the vacant site other than an easement of access to the well and its whole circumference. The lower Courts were therefore right in treating the decisions on these two matters as res-judicata and I would dismiss the second appeal with costs.
26. The suit out of which this appeal arises was brought by the plaintiff to enforce his right to build a wall round a well on his land which right he claimed to have been established in an earlier suit against the defendants. The defendants set up in this suit all the defences which they pleaded previously in the former suit and contended that the matter was not res judicata. This latter is the sole question before us.
27. My learned brother has set out the facts at length in his judgment. In the first suit the plaintiff claimed the ownership of the property and that the sole right of the defendants, was access to a part of the well. He had built a wall in such a manner as to give such access and claimed an injunction - against the defendants to prevent them from interfering. The defendants claimed ownership of the whole plot of land claimed by the plaintiff and alternatively easement rights across it. When the case came before the High Court in Second Appeal it was remitted for findings to the District Court, and I agree with my learned brother that the result of those findings was the site belonged to the plaintiffs and that the sole right of the defendants was a right of property in the structure of the well and a right of access to the whole of the well. These findings were accepted by the High Court but as the plaintiff had claimed to be entitled to limit the defendants and was building a wall so as to give access to a part only of the well the plaintiff's suit was dismissed. The plaintiff subsequently built a wall giving full effect to the rights found to exist in the defendants by that judgment, and the defendants again interfered with the result that the plaintiff was compelled to file the present suit.
28. In this suit the defendants have set up exactly the same claims as were negatived in the former suit and contend that the findings in that suit are not res judicata because in spite of those findings the suit was dismissed. We have to decide whether this contention is well-founded. The proposition is stated as follows: that where in spite of the actual findings the suit of the party in whose favour the findings were arrived at is dismissed for any reason those findings are not res judicata. The question is to be decided on the language of Section 11 of the Civil Procedure Code and the decisions based on it. The words of Section 11 are 'No Court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties,...and has been heard and finally decided by such Court.'
29. We have found that the matter directly and substantially in issue in this suit was directly and substantially in issue in the former suit and has been heard in that suit. It is contended however, that it has not been finally decided and even if finally decided there has been engrafted on this section by decisions of the Privy Council the limitation above referred to. As there is authority for this contention in decisions of other Courts I think it necessary to examine the question somewhat at length.
30. The first thing to be noted is that the section does not say that the decision must be engrafted in a decree. That this is unnecessary will of course be apparent from the fact that it would depend entirely on who was the plaintiff and who was the defendant in any suit, whether the rights were so incorporated. If the person in whose favour the right was established was the plaintiff those rights would appear in the decree. If on the form of the litigation he was the defendant the suit against him would simply be dismissed and the decree would be silent on the subject. We have here a case, however, where the rights have been found in favour of the plaintiff but the suit has been dismissed because he put his claim too high.
31. The basis of the law of res judicata is stated by their Lordships of the Privy Council in Sheoparsan Singh v. Ram. Nandan Prasad Singh I.L.R. (1916) Cal. 694. In England the proposition is that it is for the well-being of the state that there should be an end of the litigation. That is the doctrine declared by Lord Coke. In ancient India it is founded on the text of Katyayana that if a person defeated at law sues again he should be answered 'you were defeated formerly.' These are the foundations of the doctrine as stated by their Lordships in page 706 of that case. Their Lordships further point out what is most important that the application of the rule by the Court should be influenced by no technical considerations of form but by matter of substance. Applying this doctrine to the language of Section 11 it seems difficult to argue that where the matter has been directly and substantially decided it is not finally decided because the form of the litigation or the extent of the plaintiff's claim prevented a decree in accordance with the decision.
32. The law of res judicata as applicable to India was considered by their Lordships of the Privy Council on the construction of the first Civil Procedure Code, Act VIII of 1859. Section 2 of that Code provided that 'Civil Courts shall not take cognizance of any suit brought on any cause of action which shall have been heard and determined by a Court of competent jurisdiction in a former suit'. This language was considered by their Lordships in Soorjomonee Dayee v. Suddannnd Mohapatter (1878) 12 Beng. L.R. 304. the report states that if the term 'cause of action' will not directly cover the matter which is claimed to be res judicata they are of opinion that this clause ' would by no means prevent the operation of the general law relating to res judicata founded on the principle 'nemo debet bis vexari pro eadem causa'; and their Lordships adopt the language of Lord Hardwicke in Gregory v. Molcsworth (1747) 3 Atkyns. 626, 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.' These propositions were reiterated by the Board in a case on the same Code 3 years later, Krishna Behari Roy v. Bunwari Lall Roy I.L.R. (1875) Cal. 144. That case is of importance because, as pointed out by my learned brother, the position was very like the position in this case. In the former suit in that case A claiming to be the adopted son and heir of B instituted a suit to set aside certain Putni leases. One of the defences was that A was not the adopted son of B, and a certain person C who claimed to be the reversionary heir of B was made a co-defendant.' This issue was tried and decided in favour of A but the suit was dismissed as it was found in favour of Patnidar that the Putni could not be set aside. This judgment was upheld by the High Court. Subsequently C brought a suit against A to set aside the adoption alleged by him. The High Court held that the matter was res judicata and this view was upheld by the Privy Council on the authority of their previous decision in Soorjomonee Dayee v. Suddanund Mahapatter (1878) 12 Beng. L.R. 304. I agree with my learned brother that this authority covers the present case; and it is not argued before us, and could not be successfully argued, that the more definite language of the present Code has in any way limited the scope of the doctrine....
33. Vide Run Bahadur Singh v. Lucho Koer I.L.R. (1884) Cal. 301. This principle was applied by this Court in a case in Varathayyangar v. Krishnasami I.L.R. (1886) Mad. 102. The question was also considered by a Full Bench of five Judges of the Calcutta High Court in Niamut Khan v. Phadu Buldia I.L.R. (1880) Cal. 319, where their Lordships stated that they are bound to follow in its integrity the rule laid down by the Privy Council in the above cases. In that case A brought a suit against B for enhancement of rent. B's defence was first, no notice, secondly that the rent was not enhanceable. The Munsif found that the rent was enhanceable but dismissed the suit for want of notice. The decision of the Full Bench was that as the opinion of the Court his been given on a question which had been raised by the pleadings and argued that opinion must be considered as res judicata even though it may not have been embodied in the decree. In a subsequent case in the same Court, Thakur Magundeo v. Thakur Mahadeo Singh I.L.R. (1891) Cal. 647,... a Bench of that Court declined to follow the judgment of the Full Bench on two grounds, (1) that the decision had not been followed in that Court and (2) that the Privy Council in a more recent case had expressed an opinion which was in opposition to the judgment of the Full Bench. It is to be noted that the Bench did not consider the judgment of the Privy Council on which the decision of the Full Bench was founded, nor did they note that the subsequent decision of the Privy Council, namely, Run Bahadur Singh v. Lucho Koer I.L.R. (1884) Cal. 301, did not purport in any way to overrule the previous decision quoted at length by their Lordships. In my opinion the learned Judges entirely misunderstood the decision in Run Bahadur Singh v. Lucho Koer I.L.R. (1884) Cal. 301. The facts of this case were as follows: One Run Bahadur Singh sued the widow of his deceased brother, Murlidhar Singh, to recover possession of. Murlidhar's property on the ground that he and his brother were joint in estate. The widow maintained that the brothers were separate and claimed a widow's estate. She further maintained that the question had been conclusively determined in her favour in a former suit. The High Court determined the plea of res judicata in her favour. At the same time the High Court considered the evidence adduced in the trial on the point and found that the brothers had been joint. But having decided that the matter was res judicata in her favour they dismissed the suit. The widow appealed against the finding of facts on the evidence and with regard to that their Lordships of the Privy Council say 'it may be supposed that her advisers were apprehensive lest that finding should be hereafter held conclusive against her but this could not be so inasmuch as the decree was not based upon it but was made in spite of it.' It is this language which has given rise to what I conceive to be the misapprehension in the subsequent cases. For it has been treated as a dictum that wherever there is a finding which is not given effect to by a decree that finding is not res judicata. I am clear that their Lordships of the Privy Council never intended to lay down any such proposition. They simply said that where a Court gives a finding because it is bound to do so by reason of the application of the doctrine of res judicata and embodies that finding in a decree any other finding on the evidence which negatives the finding that is the basis of the decree cannot be res judicata. This proposition seems to me to be obvious, for the finding based on the finding of res judicata must continue to be res judicata for all time and necessarily a finding of fact on the evidence cannot have the slightest effect. It is certainly unusual for the High Court to give findings on the evidence where they have found the opposite on a plea of res judicata, but it is done every day in the original Courts of this country. Munsifs return findings on all issues and it would be an extraordinary contention that a finding of fact on one issue by a Munsif on the evidence should have any validity as against his own finding based on res judicata which has been upheld in the Appellate Court. The learned Vakil for the appellant has pointed out that this decision in Tliakur Magundeo v. Thakur Mahadco Singh I.L.R. (1891) Cal. 647 has been followed in subsequent cases. I do not think it necessary to examine them because I am satisfied that this decision is based on a complete misunderstanding of the decision in Run Bahadur Singh v. Lucho Koer I.L.R. (1884) Cal. 301 and that the true principles were stated in the decision of the Full Bench of that Court in Niamut Khan v. Phadu Buldia I.L.R. (1880) Cal. 309.
34. My learned brother has dealt with some cases of this Court which seem to adopt the view laid in Thakur Magundeo v. Thakur Mahadeo Singh I.L.R. (1891) Cal. 647 as good law. If those decisions do go to the length of the propositions stated in Thakur Magundco v. Thakur Mahadeo Singh I.L.R. (1891) Cal. 647. I must respectfully dissent from them. This case is in my opinion clearly covered by the decision of the Privy Council in Krishna Behari Roy v. Bunwari hall Roy I.L.R. (1875) Cal. 144 and I am bound to follow it.
35. I agree with my learned brother that the appeal must be dismissed with costs.