1. The question for decision in this case is cue of res judicata.
2. By the suit from which the second appeal arises plaintiff, one Kelu Nambiar, sought to recover as Karnavan of one Meethala Veetil Tavazhi certain lands and arrears of rent from the tenant in possession, the 1st defendant. It was stated that this was a separate and distinct Tavazhi under the Mani Madathil Kaitheri Tarwad, having its own properties and its own Karnavan, and that the plaint lands were some of its properties. The tenant denied the existence of any such Tavazhi and pleaded that the lands belonged to the main Tarwad of which one Chathu Nambiar was the Karnavan and not the plaintiff, and that the latter was not entitled to sue; he also pleaded payment of rent to the Karnavan Chathu Nambiar. On these pleas Chathu Nambiar was added as the 2nd defendant; and he supported the 1st defendant's contentions.
3. The first issue in the case was 'whether a Tavazbi called Meethala Veetil Tavazhi existed with separate properties and management.'
4. As, however, both the plaintiff and the 2nd defendant claimed that this question was res judicata by reason of previous decisions between the parties, two further issues were framed, viz., 'whether the plaintiff was estopped from setting up the Meethala Veetil Tavazbi by reason of the decrees in Original Suits Nos. 38 of 1890 and 203 of 1893 of the Courts of the District Munsifs of Nadapuram and Panur respectively and their appeals 'and' whether the main Tarwad of which the 2nd defendant was the Karnavan was estopped from denying the existence of the Meethala Veetil Tavazhi by reason of the decrees in Original Suit No. 168 of 1893 of that Court (Court of the Principal District Munsif of Tellicherry) and of Original Suit No. 3 of 1895 on the file of the Sub-Court, North Malabar.'
5. On these issues both the lower Courts have agreed that the decree in Original Suit, No. 168 of 1893 was of no value on the question of res judicata and the point has not been re-agitated before us. But they have differed in their opinions as regards the effect of the other judgments; and both the plaintiff-appellant and the defendants-respondents have contended before us that the judgments in his or their own favour constitute res judicata whereas the judgments against him or them do not. We have, therefore, to examine each of those judgments separately to see its effect on the question at issue.
6. Before doing so it may be observed that the question as to res judicata has to be considered as between the Tavazhi and the Tarwad and not as between the plaintiff and the 2nd defendant personally, as they are parties to this suit in their representative capacities as Karnavans. Taking the judgment in Original Suit No. 3 of 1895, Exhibit L, first, which is relied on by the plaintiff as settling that the Meethala Veetil Tavazhi does exist, it will be seen that the suit in which that judgment was given was one brought by one Sankaran Nambiar, a junior member of the family, to remove one Ambu Nambiar from Karnavan. ship for alleged misconduct and for recovering from the Tarwad certain properties said to have been improperly alienated by him. Permission was asked for under Section 30 of the old Code of Civil Procedure to sue on behalf of the Tarwad and on the publication of the notice required by the section a large number of the members of the Tarwad had joined as defendants. Plaintiff had asserted in the plaint that Ambu Nambiar was the Karnavan of the Meethala Veetil Tavazhi also and had asked him to be removed from that position as well. Ambri Nambiar as well as several other defendants had, among other pleas, denied the existence of such a Tavazhi and an issue was framed as to 'whether there was in fact an independent branch called Meethala Veedu subordinate to the Meethil Tarwad.' The finding on this issue was, no doubt, in plaintiff's favour that such a Tavazhi did exist. Bat in spite of that finding the suit, so far as it prayed for the removal of the Karnavan, was dismissed and Ambu Nambiar was not removed from the Karnavanship of either the Tarwad or the Tavazhi. Nor was the finding embodied in the decree. The finding was not necessary for the disposal of the suit, and we agree with the District Judge that it cannot be held to have the force of res judicata against the Tarwad. It has been settled by the ruling of the Privy Council in Run Bahadur Singh v. Lucho Koer 12 I.A. 23 that where a decree is given to the party in spite of a finding against him, that finding is not, res judicata in subsequent litigation. This view has been consistently followed since, see Thakur Magundeo v. Thakur Mahadeo Singh 9 Ind. Dec. 432 Parbatti Debya v. Mathura Nath Banerjee 15 Ind. Cas. 453, Ahmedbhoy v. Sir Dinshaw 3 Ind. Cas. 124, Venkatasuryanarayana v. Shiva Sankara Narayana 27 Ind. Cas. 861 and Mittar Poddar v. Jadab Chandra 38 Ind. Cas. 211
7. To constitute the finding on an issue res judicata in a later suit between the parties it is necessary under Section 11 of the Code that the matter should have been directly and substantially in issue between them and should also have been heard and finally decided. Where a finding has been arrived at on a matter which is not necessary for the disposal of the suit and it is not made the basis of the decree which is given in spite of it, that matter cannot be said to have been substantially in issue between the parties; it can only be said to have been incidentally in issue. Such findings are more in the nature of obiter dicta than of res judicata. Nor can the question be said to have been finally decided by such a finding. As observed by Beaman, J., in Ahmedbhoy v. Sir Dinshaw 3 Ind. Cas. 124 above cited, a decision upon any question that does not open the door to the parties aggrieved to carry it to the next Court (in appeal) is not in any sense a final decision, unless the Court which has decided it is itself the Court of final jurisdiction for that suit.' Otherwise, as pointed out by the learned Judge, it would lie with his adversary to decide whether a finding against a party when the decree is in his favour should remain res judicata against him or not; for if he, the adversary, appealed, as he could do, the finality would be gone. We mast, therefore, hold that a decision on a question in an appealable suit, when the decree is in favour of the party against whom that decision is given, is not a final decision. Explanation II which has been newly added to Section 11 of the present Code, Act V of 1908, does not affect this question; as it deals only with the competency of the Court and not with the finality of its decision. That explanation was added to put an end to the controversy whether a finding arrived at or a decree passed by a Court in a suit is or is not res judicata in the same Court in a subsequent suit, when the decree in the first suit is not appealable to the same tribunal as that in the second suit. That happens, for example, in the Subordinate Judge's Court when the first suit is below Rs. 5,000 in value and the second suit is above that value.
8. The learned Vakil for the appellant relied on the judgment of Seshagiri Aiyar, J., in Muthaya Shetti v. Kanthappa Shetti 45 Ind. Cas. 975and contended that this was a case which fell within the fourth class of cases referred to by the learned Judge and, therefore, the finding was res judicata. It seems to be very 'doubtful if there is such a fourth class of cases at all distinct from the first class; the cases which seem to fall in that class will probably, on careful examination, be found to fall in the first class. In the very case which the learned Judge had before him it would seem, with all respect to him, that on the facts stated in page 484 it was quite immaterial for the District Judge to decide if the alienation was a mortgage or a sale so long as it was valid against the plaintiff; for in the view taken by him the suit failed whether it was a mortgage or a sale. It has been pointed put to us that Bakewell, J, who sat with Seshagiri Aiyar, J., in that case did not adopt this classification, and we are not prepared to follow the learned Judge's view as to the fourth class of oases. Moreover, we think the present case falls in the first class. It is argued that it was necessary to decide in this case if a Tavazhi existed at all before deciding whether its Karnavan should be removed. It was not strictly necessary to do so, as in any event the suit failed as the Court found there were no grounds for his removal. In any view therefore the ruling in Muthaya Shetti v. Kanthappa Shetti 45 Ind. Cas. 975: (1918) M.W.N. 334 is no authority in the plaintiff's favour. The judgment in Original Suit No. 3 of 1895 cannot thus be held to render the first issue in this case res judicata.
9. Passing on to the decree in Original Suit No. 38 of 1880 we think the District Judge is wrong in holding that it operated as res judicata in favour of the Tarwad. It has not been relied on by the learned Counsel for the respondents. That was a suit brought by some junior members of the Tarwad for maintenance against Ambu Nambiar as the Karnavan of the Tarwad. The District Judge considers that Ambu Nambiar might and ought to have pleaded that some of the properties belonged to Meethala 'Veetil Tavazhi and their income should have been excluded from calculation in assessing the rate of maintenance and as Ambu Nambiar was the Karnavan of the Tavazhi according to the plaintiff's case and as he failed to set up the Tavazhi's claim, the Tavazhi should be taken as barred by res judicata, presumably under Explanation IV of Section 11, Civil Procedure Code, from setting up its existence thereafter. This view cannot be supported. Ambu Nambiar was sued only as the Karnavan of the Tarwad and not as the Karnavan of the Tavazhi and as he was always strenuously denying the very existence of the Tavazhi, he could not be expected to raise any pleas in its favour and his failure to put forward any particular plea cannot be treated as concluding the Tavazhi as to it, The last two judgments we have to deal with are those in Original Suit No. 203 of 1893 on the file of the Court of the District Munsif of Panoor and its appeal, Exhibits I and II. The suit was brought by one Chappari as the holder of a Melcharth granted by the Tarwad Kirnavan, the same Ambu Nambiar, to redeem a Kanom and recover possession of a Paramba from the Kanomdar, the 2nd defendant. The Karnavan, the 1st defendant remained ex parte but the 2nd defendant, though he admitted the Kanom, pleaded that the property belonged to the Tavazhi of which Sankaran Nambiar was the Karnavan, and not to the Tarwad and the Melcharth by the Tarwad Karnavan was, therefore, invalid. Sankaran Nambiar was added as the 3rd defendant and he supported the 2nd defend-ant's case. As notice of suit was published in the District Gazette and in a local paper, 50 other members including the present plaintiff and the 2nd defendant joined as defendants. 28 of them supported the 3rd defendant while the rest opposed the claim of the Tavazhi. The issue framed in the case was 'Has plaintiff a valid Melcharth right in the plaint Paramba? and can he maintain this ejectment suit on the strength of it?' No separate issue was framed about the existence of the Tavazhi but as the validity of the Melcharth was challenged solely on the ground that the Karnavan of such a Tavazhi alone could have granted a valid one, the question of the existence of the Tavazhi was involved in the issue framed' and was clearly a matter in issue within the meaning of Section 11, Civil Procedure Code. For a matter to be in issue under that section it is not necessary that an express issue should be framed about it; it is enough if a decision about it is necessary for the decree.
10. The District Munsif found that there was no such separate Tavazhi as Meethala Veedu as alleged by the 3rd defendant and his party and he overruled the plea of the invalidity of the Melcharth and gave a decree in plaintiff's favour. Third defendant and his party thereupon appealed to the District Judge making the plaintiff and the 1st defendant and his supporters respondents and again raised the same contentions. The District Judge, however, confirmed the findings in appeal. It would, therefore, seem that the question of the existence of the Tavazhi is res judicata against the Tavazhi. Both the Karnavans were parties to the suit as wall as a large number of members of the family. We must, therefore, hold that both the Tarwad and the Tavazhi were properly represented in that litigation. Mr. Ananthakrishna Aiyar, however, points out that the 1st defendant, the Karnavan of the Tarwad, remained ex parte and he argues that as the question arose between the Tarwad and the Tavazhi as co defendants in the suit and as there was no active contest between the 1st defendant, the Karnavan of the Tarwad, and the members of the Tavazhi, the finding should not be treated as res judicata. He relies on Kandiyil Cheriya Chandu v. Zamorin of Calicut 29 M. 515. In that case it was held that the matter was res judicata as the defendant against whom the plea was urged took an active part in the controversy as against his co-defendant. We think it must be taken as the view of our High Court that as between co defendants there must be active controversy inter se before a finding can be treated as res judicata. See also Ramanuja Ayyangar v. Narayana Ayyangar 6 Ind, Dec. 609. In this case, however, there are good reasons why the appellant's argument cannot be accepted. The Tarwad was represented not merely by the Karnavan but by all or nearly all the members of it, who certainly took an active part in the dispute; the res judicata pleaded is against the Tavazhi the Karnavan, and members of which undoubtedly actively disputed the claim of the plaintiff and the other defendants. Furthermore, the controversy did not stop with the first Court. The Karnavan and members of the Tavazhi, as already stated, appealed to the District Court making the plaintiff as well as the 1st defendant and the other members of the Tarwad respondents. When the District Judge confirmed the finding that there was no Tavazhi, he did so as between the two sets of members on opposite sides of the record. With reference to his finding which is a final one in the case no question of res judicata between co respondents arises.
11. We must, therefore, hold that the District Judge was right in considering that the finding that there was no Tavazhi is binding on the appellant in this suit.
12. A question was raised that the 1st defendant, the tenant, was estopped from disputing the title of the plaintiff as his landlord. But this plea, even if valid, is of no effect in this case as the 2nd defendant is also a party and against him there can be no such estoppel.
13. The second appeal fails and must be dismissed with costs.