1. The appellant was plaintiff in the suit, O.S. No. 251 of 1926, for a declaration of his right of way from a doorway in his premises over the defendant's adjacent yard marked Y on the plan, and for the removal of an obstruction by the defendant to that right of way. The suit was decreed by the trial Court. On appeal objection was taken that his claim was barred by operation of Section 11, Expln. IV, Civil P.C. As a result of an issue framed by the District Judge on this point, the trial Court found, and this finding has been accepted by the District Judge, that plaintiff's claim to an easement could and should have been raised by him in the previous suit between the parties, and that his failure to then raise it, is a bar to his setting it up in the present suit. The suit ha! accordingly been dismissed. In that previous suit, O.S. No. 496 of 1923, the position of the parties was reversed. The present defendant was then the plaintiff and he sued for a declaration of his sole ownership of the yard Y and for an injunction to close the doorway giving access to it and to restrain the then defendant, the present plaintiff, from trespassing in yard Y. In that suit the trial Court found in favour of plaintiff's sole title to the yard, but hold that the defendant had established his claim to a right of way over it. The plaintiff's claim to the suit yard Y was decreed, but the rest of his suit was dismissed. The plaintiff appealed. The Subordinate Judge confirmed the trial Court's decree. But in the course of his judgment, although he accepted the finding that the doorway in question had been in existence for 30 years, he observed that the defendant's claim to an easement over the site Y had not been the subject of an issue and that it was unnecessary to decide it in that suit. The material allegation in the plaint is to be found in para. 6:
The defendant in the abovesaid manner unlawfully has not only occupied but has also been trespassing into the plaintiff's plot Y through the gateway at T improperly opened by him. The defendant has no right to open a gate at place T or to pass into lane Z through the zenana plot marked Y which is in plaintiff's enjoyment as of right.
2. And the relief prayed is:
That plaintiff's absolute right to Y be declared, that T be closed as before, and that defendant and his successors in title be restrained by a permanent injunction from trespassing into plaintiff's site Y.
3. The written statement alleges that the defendant and his men had for a long time uninterrupted passage through this gateway. This was not the accurate manner of pleading an easement of way, but I think it sufficiently indicates that defendant was setting up a claim to a right of way over the plaintiff's yard. It was sufficiently definite in contradicting the averment in the plaint to require an issue to be framed upon it. But it is not essential for the purpose of Section 11, Expln. IV that an issue should have been framed. What the rule says is:
Any matter which might and ought to have been made ground of defenee or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
4. Undoubtedly the defendant's claim to a right of way was set up by way of defence to the plaintiff's prayer for an injunction. It was not only raised in the pleading, but argued and supported by evidence at the trial, and decided by the Court. An issue which has been decided by the Court, although the issue was not in fact necessary or proper to be tried, will operate as res judicata: Midnapore Zamindary Co., Ltd. v. Naresh, Narayan Roy AIR 1921 PC 144. In Vankataratnamma v. Krishnamma AIR 1921 Mad 21, it was held by Abdur Rahim, J. that if a question has been allowed to be raised by a party before the trial Court, and that Court has given a decision upon it, and that decision is challenged in appeal by the other party, the case falls outside Expln. IV of Section 11. In my judgment, the defendant's claim to a right of way was made a ground of defence to the plaintiff's suit and must be deemed to have been a matter in issue in that suit. I think the Subordinate Judge was in error in refusing to decide it in the appeal. There remains the question whether, as held by the District Judge in the present suit, the decision in the previous suit does not bar the defendant from denying the plaintiff's claim to a right of way. It has been argued by the appellant's learned advocate that seeing that the Subordinate Judge in the previous suit confirmed the decree of the trial Court, his observation that it was unnecessary to decide the question of right of way must be regarded as meaningless. As already observed, I think the Subordinate Judge was wrong in the attitude he took towards this question. But when the Subordinate Judge has expressly refrained from deciding it, I cannot say that he has decided it. And if he has not decided it, the issue has not been finally decided within the meaning of Section 11, Civil P.C. In Abdulla Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 a particular issue had been decided by two Courts, but when the case came to the final Court of appeal that Court refused to decide the issue, and it was held that there had been no final decision on it. Their Lordships referred to the judgment in Sheosagar Singh v. Sitaram Singh (1897) 24 Cal 616, where it is said:
To support a plea of res judicata, it is not enough that the parties are the same and that the same matter is in issue. The matter must have been finally heard and determined. If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise to the plea. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of appeal.
5. So here I think the result of the Subordinate Judge's judgment on appeal is that the question of the defendant's alleged right of way was not finally determined. The District Munsif in the present suit has held that the plaintiff had established this right of way over the yard Y. The case must go back to the lower appellate Court to decide the appeal from that decision on its merits. As each party to this second appeal has in part succeeded I think the proper order is to make no order as to the costs of the second appeal. The costs of the two lower Courts will abide the result of the appeal. Court-fee will be refunded. (Leave to appeal refused.)