1. The plaintiff is the appellant in this second appeal. He filed a suit on a registered rental agreement executed by the defendants in favour of himself and of a deceased Karnavan. The defence put forward by defendant 1 was that the property belongs to the temple of which the plaintiff is one of the Uralans and unless all the Uralans are joined in the suit he is net liable to pay rent. The plaintiff had filed a previous suit, O.S. 683 of 1920, on the same rental agreement against the same defendants for a different period. This suit had been decreed in the plaintiff's favour in spite of pleas of coercion and misrepresentation. Together with that suit was tried O.S. 338 of 1921 filed by the present defendants against the present plaintiff for a declaration that the plaintiff was not the only trustee but that there were two other persons also. In the common judgment the plaintiff was given a decree in his own right to recover the amount although the Court found on the issue that two other persons were also trustees of the temple. O.S. 338 was dismissed holding that plaintiffs were not entitled to any relief. Among the issues raised in the present suit, issue 6 is:
'Is defendant 1's plea barred by the rule of res judicata on account of the decree in O.S. 683 of 1920 of this Court?' issue 7 is:
Is defendant 1 estopped from raising the plea that the plaintiff has not the right to maintain this suit?
and issue 9 is:Is the suit in its present form barred by the decision in O.S. 683 of 1920 of this Court as defendant 1 contends.
2. On issue 7 the trial Court found that defendant 1's plea was not barred by res judicata; on issue 9, that the plaintiff's suit in its present form was barred by the decision in O.S. 683 of 1920; and on issue 6, that defendant 1 was not estopped from raising the plea that the plaintiff has not the right to maintain the suit. The suit was therefore dismissed and on appeal the dismissal was upheld. On issue 6 there is no specific finding by the lower appellate Court. The second appeal is preferred by the plaintiff on two grounds: (1) that the defendants are estopped from questioning the landholder's title until they restore possession to him and (2) that the plaintiff's suit is not barred by res judicata but on the other hand, the defence is barred by res judicata. For the respondents it is argued that the finding in O.S. 683 of 1920 that there are two other Uralans is res judicata. I am of opinion that both the lower Courts are wrong on the matter of res judicata. The plaintiff's suit, O.S. 683 of 1920, was decreed in full. There was therefore nothing in the decree against which plaintiff could have appealed. The latest decision of this Court quoted is Kumarappa Chetti v. Muthuvijaya Raghunathan AIR 1932 Mad 207 decided by Venkatasubha Rao, J., and myself. Venkatasubba Rao, J., says in that judgment:
The decree, far from being based on the finding as to ownership of the money, was made in 'spite of it.' In such a case no issue decided against the plaintiff can be res judicata. The law on the point may be thus stated: if the decree is wholly in favour of the defendant, no issue decided against him can operate as res judicata so as to bind him in a subsequent suit for he cannot appeal from a finding on any such issue. Conversely, if the plaintiff's suit is decreed in its entirety no issue decided against him can be res judicata, for he cannot appeal from a finding on any such issue, the decree being wholly in his favour: see Mulla's Civil Procedure Code, Commentaries on Section 11.
3. The first part of this rule is illustrated by Run Bahadur Singh v. Lucho Koer (1885) 11 Cal 301. The suit was brought by a Hindu against the widow of his deceased brother claiming his property by right of survivorship. The suit was dismissed upon a technical ground, but it was nevertheless found as a question of fact that the brothers were joint in estate. In this case, the widow wholly succeeded, although the finding was against her. The Judicial Committee held that the finding did not constitute res judicata against the widow. Midnapore Zamindari Co, Ltd. v. Nares Narayan Roy AIR 1922 PC 241 recognises the same principle. In a suit against certain tenants, they pleaded (1) occupancy right, and (2) that the suit was premature. The High Court dismissed the suit on the ground that the suit was premature but gave a finding that the tenants had no occupancy right. Their Lordships held that their finding on the question of occupancy rights did not operate as res judicata against the tenants as the decree was wholly in their favour and they could not have appealed from that finding. 'The second part of the rule' (it is with this we are concerned in the present case), is illustrated by (Rango v. Mudiyeppa (1899) 23 Bom. 296. A alleging that he was the adopted son of X sued B to recover certain property granted to him by X under a deed. The Court found that A was not the adopted son of X, but that he was nevertheless entitled to the property under the deed and a decree was passed for A. A's suit was thus decreed in its entirety in spite of the finding against him on the question of adoption. It was held that the finding did not operate as res judicata in a subsequent suit between A and B; for the decree having been in favour of A, A could not have appealed from the finding that was adverse to him.
4. Certain cases have been relied on by the learned advocate for the respondents. Some of them may be eliminated at once. Obla Subbier v. Ramaswami Konar : AIR1927Mad643 is a decision by a single Judge. There Jackson, J., held that the matter was not res judicata and his remarks as to what constitute res judicata are therefore obiter. Then there is a class of cases of which Muthu Pillai v. Veda Vysa Chariar AIR 1920 Mad 622 is an example where the party who had apparently no ground of appeal did actually appeal. It was held that the decision in such an appeal was res judicata. With such cases we are not concerned here. Then there is a class of cases where the defendant had a right of appeal as there was something in the decree against him: Mota Holiappa v. Vithal Gopal Habbu (1916) 40 Bom. 662. Then there is another class of cases of which Yusuf Sahib v. Durgi (1907) 30 Mad 447 is an example. Where the defendant might have had himself impleaded as a plaintiff, in which case he would have had an appeal, a finding against him was held to be res judicata The correctness of Yusuf Sahib v. Durgi (1907) 30 Mad 447 is doubted in a case which is otherwise strongly in favour of the respondents themselves, viz. Muthaya Shetti v. Kanthappa Shetty AIR 1919 Mad 1097. It is not necessary to discuss the decisions of other Courts. As remarked in Rama Krishna Naidu v. Krishnaswami Naidu AIR 1920 Mad 871 (of 36 M.L.J.) (which is one of the cases strongly relied on by the learned advocate for the respondent),
there are several Calcutta cases in which it is 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.
5. The learned Judge in Rama Krishna Naidu v. Krishnaswami Naidu AIR 1920 Mad 871 did not think it necessary to consider all the Calcutta cases. Nor those of Bombay and Allahabad holding similar views and expressed his dissent from a number of such cases. He alludes to the Full Bench Calcutta decision in Niamut Khan v. Phadu Buldia (1881) C Cal 319 and says it cannot be reconciled with the previous decisions of that Court. He points out that in subsequent cases that decision was held to have been overruled, by the observations of the Privy Council in Khater Mistri v. Sadruddi Khan (1907) 34 Cal 922 and he himself thinks that it is a wrong view. The two decisions which are strongly relied on by the respondents are Muthaya Shetti v. Kanthappa Shetti AIR 1919 Mad 1097 and Rama Krishna Naidu v. Krishnaswami Naidu AIR 1920 Mad 871. Both of these were decisions prior to the Privy Council decision in Midnapore Zamindari Co., Ltd. v. Naresh Narayan Roy AIR 1922 PC 241 which Venkatasubba Rao, J., and myself followed in Kumarappa Chetti v. Muthuvijaya Raghunatha AIR 1932 Mad 207. For this reason they must be considered to have loss some of their authority. But even assuming that they are correct neither of them covers the present case.
6. In Muthaya Shetti v. Kanthappa Shetti AIR 1919 Mad 1097 there was a suit for partition by a member of a family. The mortgagee was made a party. The plaintiff claimed the right to redeem his share on payment of his share of the mortgage amount. The mortgagee contended that the alienation in his favour was an absolute sale and not a mortgage. It was found that the alienation was a mortgage and not a sale but the suit was dismissed against the mortgagee on the ground that there could be no suit for redemption of a share in the mortgaged property. Subsequently, a suit for redemption was brought and the alienee again contended that the alienation was a sale and not a mortgage. It was held that the question whether the transact on was a sale or mortgage was res judicata by reason of the decision in the previous partition suit. At p. 485 four classes of cases are mentioned. The first are cases where there has been a decision on issues which are altogether unnecessary for the disposal of the case. There it is held that the decision is not res judicata. And it is said that Rajah Run Bahadur Singh v. Mt. Lachoo Koer (1885) 11 Cal 301 quoted above in Venkatasubba Rao, J's. judgment in Kumarappa v. Muthuvijaya Raghunatha AIR 1932 Mad 207 belongs to this class of cases. It is the contention of the respondents that the decree which the plaintiff got in O.S. No. 683/20 was not based on the finding that there were two other Uralans, but was passed in spite of it. Therefore on the respondent's own showing Muthaya Shetti v. Kanthappa Shetti AIR 1919 Mad 1097 is completely against them on this point. It is argued for the appellant that the learned Subordinate Judge is completely wrong when he says:
But rightly or wrongly the lower Court passed a decree in favour of the plaintiff and there can be no doubt whatever that the decree was passed in his favour as one of the three Uralans of the plaint-mentioned temple. That is perfectly clear from para. 7 of the judgment in O.S. No. 683 of 1920.
7. I entirely agree with the contention. So far from its being perfectly clear that the decree has been passed in plaintiff's favour as one of the three Urlans it is unquestionably passed in the plaintiff's sole favour. In fact it is argued for the respondents before me that the Court took a wrong view of the law in passing it in his sole favour in the light of its finding that there were two other Uralans. The next class is where although the decision of an issue is unnecessary for the disposal of the case, still for some reason the Court embodies that decision in the decree itself. The present is not such a case. The third class relates to judgments which decide more than one issue but it is doubtful from those judgments on which of these issues the final conclusion was based. This also does not apply to the present case. In the fourth class, the decision upon the issue is necessary, but unfortunately the party against whom that decision is given could not appeal against it as the final decree is in his favour. In such a case, the learned Judge in Muthaya Shetti v. Kanthappa Shetti AIR 1919 Mad 1097 says: 'It seems to me that the decision on the issue would be res judicata.' He goes on to say:
The proper procedure where the defendant is affected by a decision on an issue which he has not the opportunity of contesting in appeal may be as suggested by Petheram, C.J., in Jamaitunnissa v. Lulfunnissa (1885) 7 All 606 (F B), that is to say, he can ask the Court which has given adverse decision on a material issue to embody it in the decree so that he may have a right of appeal against such a decision. But if he neglects the opportunity and the decision itself is necessary for the disposal of the case, there seems to be no escape from the bar of res judicata.
8. As I said above, these remarks are prior to the decision in Midnapore Zamindari Co., Ltd. v. Naresh Narayan Roy AIR 1922 PC 241 and in any case it seems to me to he a totally different thing to say that the defendant can move to have an adverse finding inserted by amendment in a decree dismissing the suit against him in order that he may appeal against what might otherwise be res judicata, and to say that a plaintiff who has got a decree entirely in his favour should ask for it to be amended in such a manner as to prevent him from executing it merely to enable him to get this amendment set aside by preferring an appeal against the decree as amended. In the former case, if the defendant having got the decree amended succeeds in his appeal against the amended decree, he is better off than before, and if he loses he is in no worse position (if the principle of res judicata contended for is really correct). But to ask the plaintiff, who has got a decree entirely in his favour, to have it amended so that it will not be in his favour for no better object than that he may get this amendment set aside on appeal appears to me to be on its face absurd. If he fails on appeal he is in a far worse position than he was under the original decree. No case supporting such a view has been quoted. I now come to Rama Krishna Naidu v. Krishnaswami Naidu AIR 1920 Mad 871. Here again on the argument of the respondents themselves the decision is really against them. It was there held that where on a consideration of the whole evidence the Court decides certain issues against the defendant but dismisses the suit on another ground, the decision on those issues operates as res judicata in a subsequent suit between the same parties unless it is shown that the findings in the previous suit are wholly inconsistent with the decree or other findings therein. As I said above, it is the respondent's case that the decree in O.S. 683 of 1920 is entirely inconsistent with the finding that there are two other Uralans. Therefore, even if the decision in Rama Krishna Naidu v. Krishnaswami Naidu AIR 1920 Mad 871 is followed it will not help the respondents.
9. One more case quoted by the learned Subordinate Judge may be noticed, Venkateswarlu v. Lingayya AIR 1924 Mad 689. In the first place it is a decision by a single Judge, Kumaraswami Sastri, J. (afterwards Sir Kumaraswami Sastri). The plaintiff who was the lessee of the suit lands from defendant 1 sued for the establishment of his title and for a declaration that the sale to defendant 2 by defendant 1's father was inoperative as they had become divided long prior to the insolvency of the father and the suit lands had fallen to the son's share. The suit was dismissed by both the lower Courts holding against the partition. On a second appeal being preferred by defendant 1 it was held that defendant 1 was competent to prefer the second appeal. The learned Judge there says:
Where the point adversely decided to the defendant is directly and substantially in issue, and where in other proceedings the matter would be res judicata, I think it would be contrary to all principles of justice and equity to hold that he is precluded from agitating the matter in appeal merely because the suit was decided in his favour on some other ground.
10. This is apparently a case like Yusuf Sahib v. Durgi (1907) 30 Mad 447 where defendant 1 could very well have asked to be impleaded as a plaintiff, his interest being identical with that of the plaintiff. If he had done so, he would have had an appeal against the decree dismissing the suit. That distinguishes it from the present case. Again the learned Judge says:
In the present case it is clear that the question as to whether defendant 1 was divided or not from his father long before the insolvency of the father would be res judicata in subsequent proceedings between the Official Receiver and his assignee and defendant 1.
11. That is, the matter would be res judicata as between co-defendants. Now, it is perfectly clear that the decision that there are two other Uralans of the temple besides the plaintiff would not be binding on these two Uralans who are not parties to the suit, and I think the plaintiff was perfectly right in refusing to add them as parties in the present suit. The contention put forward being that the matter of there being two other Uralans besides himself was already res judicata by reason of the decision in O.S. 683 of 1920 he could not on the defendants' case agitate this question again by bringing them on record. The sole result of bringing them on record would have been to admit the claim of the defendants which he was denying, viz. that there were two other Uralans of the temple and the plaintiff could not possibly be expected to stultify his own case in this fashion. It is obvious therefore that in this respect also the present case differs entirely from the case in Venkateswarlu v. Lingayya AIR 1924 Mad 689. Again the learned Judge in that case was largely influenced by the assumption that the matter would be res judicata in subsequent proceedings between the Official Receiver and his assignee and defendant 1. And so as regards the question whether defendant 1 was divided from his father long before the insolvency of the father, he thought that defendant 1 must be allowed to agitate the matter in appeal in spite of the fact that the suit has been dismissed. But if the correct law be, where the suit has been entirely dismissed nothing decided against the defendant is res judicata, the difficulty of not allowing him to appeal disappears.
12. In the result, I hold that the finding in O S. No. 683 of 1920, that there were two other Uralans, is not res judicata in the present suit; on the other hand, I find that the defence of the respondents that they are not bound to pay rent to the plaintiff is barred by res judicata by reason of the decision in that suit. In the circumstances it is not necessary to discuss at length the question of estoppel arising under Section 116, Evidence Act. The learned District Munsif decides this in the defendants' favour by first finding that the existence of two other Uralans is res judicata and then staling that under the decision in Chandu v. Kuttiyil AIR 1922 Mad 2, all the Uralans of the trust should be impleaded in the suit and that there can be no estoppel on a matter of law. If however as I hold, the fact that there are two other Uralans is not res judicata, then clearly the defendants are estopped under Section 116, Evidence Act, from denying the plaintiff's their lessors' title to the property until they surrender the land. In the result the appeal is allowed The effect of holding that the decision in O.S. 683 of 1920 is not res judicata is to decide issues 2, 4, 6, 7 and 9 in the plaintiff's favour. The suit will be remanded for decision on the issues left untried, viz. issues 1, 3, 5 and 8, The costs will abide the result of the suit.