Sadasiva Aiyar, J.
1. The defendants Nos. 1 to 4 are the appellants. The suit was brought for the redemption of plaint lands alleged to have been mortgaged with possession by the plaintiff's predecessor-in-title in March 1875 for Rs. 20. The suit was brought on the 14th December 1913.
2. In a previous suit Original Suit No. 211 of 1908, the present plaintiff sued the same defendants Nos. 1 to 4 in ejectment on the al legation that the defendants trespassed upon the land sometime in 1900. The defendants contended that the plaintiff's predecessor-in-title and the plaintiff were never owners and they set up title in themselves as usufructuary mortgagees from a third person whom they set up as owner. The District Munsif found in that suit that the mortgagor of the defendants had the right in the property under the plaintiff's predecessor-in-title and though the defendants' case that their mortgagor was the owner was false they could resist the plaintiff's claim to eject them as trespassers as they were entitled to be paid what was due to their mortgagor (as mortgagee) before possession could be given to the plaintiff in redemption, (The plaintiffs' case in that suit was that, though there was a mortgage for Rs. 20 in favour of the defendants' mortgagor that mortgage had been redeemed long ago by the plaintiff's predecessor in-title). That alleged redemption was found against in that suit. Against the decree of the Distriot Munsif dismissing that suit on those two findings, namely (1) that the plaintiff was the owner of the land but he was not entitled to possession, as the lands were outstanding on mortgage and the suit was not brought for redemption of mortgage, and (2) that the defendants were not the mortgagees from an owner but could only claim to be paid the original mortgage amount due to their mortgagor before parting with possession, there were two Appeals Nos. 898 and 923 of 1911, filed in the Subordinate Judge's Court of Ramnad by the plaintiff and the defendants respectively, the plaintiff contending in his appeal that the first conclusion of the Munsif that the plaintiff was bound to bring a suit for redemption, because the original mortgage had not yet been redeemed was erroneous, and the defendants contending in their cross-appeal that the finding that their mortgagor was not the owner but only was himself a mortgagee under the plaintiff's predecessor-in-title and that, therefore, the defendants were liable to be redeemed was erroneous. The Subordinate Judge by his judgment Exhibit G. paragraphs 7 and 9, upheld both the findings of the District Munsif and dismissed both the appeals.
3. It was under these circumstances that the present suit was brought to redeem the original the made by the plaintiff's predecessor-in-title to the defendants' mortgagor, the defendants' mortgagor having mortgaged to the defendants for more than the original mortgage amount of Rs. 21 and he one, having practically assigned his original mortgage-right to the defendants for far more than its value.
4. The lower Appellate Court considered that the defendants having appealed in the former suit to establish that they were not liable to be redeemed and that the plaintiff had no right to redeem and having failed in that appeal they were barred by res judicata from again setting up that the plaintiff was not entitled to redeem them it therefore, passed a decree for redemption ton payment of the amount of Rs. 20 due under the original othi of 1875 that othi having been held as existing unredeemed in the former suit.
5. The contentions in the present second appeal are found in grounds Nos. 2 and 3, namely,
1. The lower Appellate Court should have
2. found that the decree in Original Suit No.211 of 19.8 does not operate as Res Judicata against the first defendant
3. The lower Appellate Court ought to have found that the suit is barred by limitation by reason of adverse possession
6. As regards the 3rd ground relating to adverse possession, a mortgagee cannot set up adverse possession and hence there is nothing in that ground. The learned Vakil for the appellant set up that, though there may not be limitation by adverse possession, there might be limitation under Article 134 of the Limitation Act. But that Article was not relied on in the lower Court and that Article could only apply if the mortgage to the defendants was made by the original mortgagee Irulappa Pillai purporting to act as owner and not as mere mortgagee
7. The document, Exhibit 5 of 1898, in favour of the defendants does not so purport and we are also not bound to allow a point to be argued not expressly raised in the memorandum of second appeal unless the plaint in its own allegations shows the suit to be barred by limitation which is not the case here.
8. The contention most strenuously argued was the other question of res judicata. It was argued that though the defendant expressly appealed in the former suit to get rid of the finding of the District Munsif in that litigation the finding, namely, that the defendants were only mortgagees and that the plaintiff could redeem them by paying up the original mortgage-amount, and though they failed in that appeal they need not and even could not have appealed against the District Munsit's judgment which dismissed the suit and therefore the decision against them was not res judicata. But their Lordships of the Privy council in Soorjomoni Dayee v. Suddananl Mohapattar 12 B.L.R. 304 , that where the defendant filed an appeal against a finding notwithstanding the suit itself had been dismissed, that finding on appeal was res judicata in a second suit between him and the plaintiff. There is, therefore, nothing in this argument.
9. As regards the other argument based on Bun Bahudur Singh v. Lucho Koer 4 Sar P.C.J. 602 , Thakur Magundeo v. Thakur Mahadeo Singh 18 C.647 and other Bombay and Allahabad cases following Thakur Magundeo v. Thakur Mahadeo Singh 18 C.647 1 need only say that I considered the whole question anxiously in Rama Krishna Naidu v. Krishnasami Naidu 52 Ind. Cas. 34 , and came to the conclusion that the Full Bench decision in Niamut Khan v. Phadu Buldia 3 Ind. Dec.(N.S.) 209, was wrongly dissented from in the subsequent Calcutta cases and that a statement of their Lordships of the Privy council in Run Bahadur Singh v. Lucho Koer 4 Sar P.C.J. 602 , was unduly stretched in those subsequent decisions and I followed Varathayyangarv, Krishnasami 10 M.102 , In fact, the present case is almost exactly on all fours with Varathayyangar v. Krishnasami 10 M. 102 , which has never been dissented from in this Court. 1 have had the advantage of reading the judgment to be pronounced by my learned brother in this case and I am glad that he supports the decision in Rama Krishna Naidu v. Krishnasami Naidu 52 Ind. Cas. 34 ,.
10. No deoision of this Court subsequent to Rama Krishna Naidu v. Krishasaami Naidu 52 Ind. Cas. 34 , has been quoted before us dissenting therefrom.
11. The learned Vakil for the appellant adopted the criticism of that judgment in Rama Krishna Naidu v. Krishnasami Naidu 52 Ind. Cas. 34 , found in 37 Madras Law Journal (Journal part 3) pp, 1 to 15. Having carefully considered those criticisms, I Bee no reason to change my view especially as the learned reviewer after vainly trying to distinguish or explain Varathayyanyar v. Krishnasami 10 M.102, 11 Ind. Jur. 102 finally stated in despair that it must be treated as bad law.
12. I, therefore, agree with my learned brother that the second appeal should be dismissed with costs. Time for redemption is extended to three months from this date.
13. The second appeal has been argued on a question of res judicata. The present plaintiff brought a prior suit against the present defendants Nos. 1 to 4 for possession of the northern halt of Survey No. 851, which is the subject of the present suit. That suit was dismissed on the ground that the first defendant was holding the property as a usufructuary mortgagee and that the suit in ejectment could not be converted into one for redemption. There was an appeal and a cross-appeal with the result that the first Court's decree was confirmed. Now that the plaintiff has brought this suit for redemption, the first defendant wishes to deny the original other mortgage under which he got into possession as sub mortgagee from the mortgagee and to set up a case of absolute title. The Subordinate Judge has held that he cannot do this, and I have no doubt that the Subordinate Judge is right. Undoubtedly, the matter of the mortgage was directly and substantially in issue (to use the words of Section 11 of the Code of Civil Procedure) in Original Suit No. 211 of 1908 as the finding of the two Courts that the mortgage was subsisting led to the dismissal of the plaintiff's suit. It is argued by the appellant's Vakil that, because the decree in that suit was in favour of the party against whom the finding was recorded, the matter has not been finally decided. It is true that, in the former litigation there was no second appeal to the High court but this was because the question as to the existence of a mortgage-right was one purely of fast and consequently the parties had no right of second appeal. In every other flense the matter was finally decided. The decision of this issue was in favour of the defendants in that suit in so far that if. Had the effect of causing the plaintiff's suits to be dismissed, but it operates against their contentions in this suit in which the relief claimed by the plaintiff is different from what it was before. The rule of res judicata has been described by the Privy Council, Quoting the maxim interest republic, us sit finis lituirm and the commentary of Lord Coke thereupon in Sheoparsan Singh v. Ramnandan Prasad Narayan Singh 33 Ind. Cas. 914 as being
founded on anoiont preoedent and diatated by a wisdom which is for all time.
14. To allow the defendants to raise this question of mortgage of absolute title which has one been decided by two competent Courts' and have it decided all over again merely for the reason that it is not now to their advantage that they should be treated as mortgagees would be to ignore every principle of finality and to treat the doctrine of res judicata, as a dead letter. The appellant's Vakil has quoted certain decisions of this and other High Courts which he considers to be in favour of his clients, and it. Will therefore, be necessary to deal with them.
15. First there is the decision of the Privy council in Bun Bahadur Singh v. Lucho Koer 11 C. 301 (P.C.) 12 I.A. 23 . Which has bean muah quoted and not always quite understood. My learned brother in Rama Krishna Naidu v. Krishnatwami Naidu 52 Ind. Cas. 34 , has dijtinguished this caw, and I agree with his observations. The Privy council expressed an opinion on the fasts of that case that the judgment of a Diatriat Munsif in a suit to reaover rent was not conclusive upon a point viz that of title, which was only incidental and subsidiary to the main question upon which the suit was decided when the finding upon that issue did not form the basis of the Court's decree, and that the decision was not res judicata in a subsequent suit upon title,in the Court of a Subordinate Judge. My learned brother rightly pointed out in his judgment that there is no condition in Section 11 of the Code of the Civil Procedure that the decision of the particular issue should have been the basis of the decree. But the insertion of the finding in question in the decree, or its omission there from as also its bearing on the general result of the suit naturally from elements in the consideration of the question whether the matter has been directly and substantially in is Bue in the former suit. ThakurMagiindeb v. Thakur Mdkaleo Singh 18 C. 647 , is one of the fifties, whioh purports to follow Mitn Bahadur Singh V. Lucho Koer 11 C. 301 (P.C.) 12 I.A. 23.
16. My learned brother and Napier, J, in Ham a Krishna Naidu v. Krishna-simi Navdu 52 Ind. Cas. 34 , dissented from the view expressed therein by a Bench of the calcutta High Court. If a landlord sues to ejsct a tenant and second on the defendant's plea of cosupanoy right, and if his suit fails for want of a proper notice to quit, the finding on the former issue is ret judicata in, second suit instituted after a due notice being given. So it was held in Mafa Rblifappi v. Vithal Gopol Hibbi 36 Ind. Cas. 74 ,
17. In thikur Mogundeo v. Thakur Mahadeo Singh 18 C. 647 , this contrary view prevailed, but I prefer the Bombay view. With due respect I consider that Kelu Nambiir v. Oh tiu Nambiar 52 Ind. As 258, goods too far inlaying down that a decision on an issue in an appealable suit when the decree is in favour of the parties against whom that decision is given is not a final decision and in considering that Mm Bahadur Singh v. Lucho Koer 4 Sar. P.C.J. 602 . Is an authority for this wide proposition.
18. In Muthaya Sheti v. Kanthappa Shetti 45 Ind. Cas. 975 it was rightly pointed out by another Bench, with reference to Explanation 2 to Section 11 of the Code of Civil Procedure, that the test of res judicata does not depend on the right of appeal. In that case the second suit as in the case before us was one for redemption and the finding in the first suit whether there had been a mortgage or a sale was held to be res judicata between the same parties or their representatives in-interest. Mr. Justice Seahagiri Aiyar, for convenience of consideration, divided cases of res judicata into four calsses. The fourth class consisted of cases in which the decision upon the issue is necessary for the decision of the suit but the party against whom it is given cannot appeal as (be final decree is in his favour Even so be held that the decision on the issue would be Res Judicata. The present case would fall in that class.
19. Secretary of State v. Swaminatha Goundan 12 Ind. Cas. 167 cited by the appellants' Pleadera case to which I was a party, is not really an authority on the law of res judicata. The question we had to decide was whether a party who was not adversely affected by a decree could appeal against an adverse finding recorded in the judgment alone. We answered that question in the negative and a similar question was answered in the negative in Achantakataswyami Narayana v. Shiva Sankara Narayana 27 Ind. Cas. 861 , by the learned Chief Justice and Seshagiri Aiyar, J., upon the point whether the decision of a question as to the invalidity of an adoption would operate as res judicata there is no discussion of the law but a mere reference to Run Bahadur Singh v. Lucho Koer 4 Sar. P.C.J. 602 and Parbatty Debya v. MathuraNath Banertee 15 Ind. Cas. 452 ,.
20. Parbati Debya v. Mcthura Nath Banerjee 15 Ind. Cas. 452 , is another of the decisions of the calcutta High Court upon the doctrine of 'basis of the decree' which my learned brother declined in Rama Krishna Naidu v. Erishnasami Naidu 52 Ind. Cas. 34, to follow.
21. In Anusuyabai v. Sahharam Pandurang 7 B. 464, it was rightly observed that an appeal would not lie against an unfavourable finding in a suit when the decree was in favour of the party appealing. The further observations in the same ruling as to there being no res judicata except when the party concerned had an opportunity of appealing are difficult to reconcile with those in Muthaya Shetti v. Kanthappa Shetti 45 Ind Cas. 975.
22. In Ghela Ichharamm v. Sankalchond jetha 18 B. 597 , there was a finding on an issue not necessary or material for the determination of the suit and it was held to look the force of res judicata. This decision is not in point PS in the case before us the findicg as to the mortgage being subsisting con-tiibuted materially to the dismissal of the former suit.
23. The cases in Gurdeo Singh v. Chandrika Singh 1 Ind. Cas 913 , and Kelu Nambiar v. Ghathu Nambiar 52 Ind. Cas. 258 , were concerned with the finality of adjudication between co-defend ants, which stand on rather a different footing from adjudications between plaintiffs and defendants, whose interests are prima facie conflicting.
24. The Privy Council in Krishna Behari Roy v. Banwari Lal Roy 3 Sar. P.C.J. 559 , as to the determination of the status of one party in relation to the other, upon a material issue in a proper suit in a competent Court-operating as resjudcata in a second suit between the same parties, is distinctly against the appellants' present contention. I think that we should dismiss this second appeal with costs.