1. This is an appeal against the order of the learned Subordinate Judge of South Malabar at Calicut remanding O.S. No. 373 of 1924 to the District Munsif of Vayitri for disposal. Respondent 9 in appeal who is the legal representative of defendant 1 is the appellant. The facts relating to this remand are these. Defendant 1 the kanomdar of a house site, had demised it to defendant 3, the latter built a house on it and hypothecated it to defendant 1. Defendant 1 brought a suit, O.S. 464 of 1922, upon the hpyothecation, obtained a decree and in execution of it purchased the house himself. When he tried to obtain delivery of possession of the house he was obstructed by the plaintiffs in the present suit who, stated that the house was built with the tarwad funds of the plaintiffs and of defendant 3, and not by defendant 3 alone out of his own funds. Defendant 1 then applied for the removal of the obstruction in M.P. 905 of 1924 and the obstruction was ordered to be removed. As a consequence of this order the plaintiffs instituted the suit, which has now been remanded, fox a declaration that the house was built with the tarwad funds of the plaintiffs and defendants 2 to 8, that the decree obtained by defendant 1 in O.S. 464 of 1922 is not binding upon them and that the order removing the plaintiff's resistance should be set aside.
2. In the meanwhile, the superior jenmi who had demised the land on kanom to defendant 1 had brought O.S. 484 of 1923 on the file of the Principal District Munsif's Court of Calicut for redeeming the land, making the present plaintiffs and the present defendants 1 and 3 parties to the suit and obtained a decree for redemption. The present defendant 3 was defendant 1 in that suit; the present defendant 3 was defendant 31 and the present plaintiffs were defendants 32, 34 and 35. It was held in that suit that the present defendant 1 was entitled to get the value of the house before redemption. It is now contended by defendant 1 and by his legal representative that the plaintiff's claim to the suit house is res judicata by reason of the decision in O.S. 484 of 1923. The District Munsif agreed with this contention and dismissed the plaintiff's suit. The learned Subordinate Judge disagreed with the view of the District Munsif and remitted the suit for disposal on the merits.
3. The only question for consideration in this appeal is whether this plea of res judicata can be maintained. It is not disputed that the plaintiffs and defendants 1 and 3 were ranged as co-defendants in O.S. 484 of 23. It is well settled that for the decision in a suit to operate as res judicata between co-defendants therein, it is necessary (1) that there should be active controversy between the co-defendants and (2) that an adjudication inter se between the co-defendants should be necessary to give the appropriate relief to the plaintiffs: see Sankara Mahalingam Chetti v. Muthulakshmi : AIR1918Mad39 . It is argued by the learned advocate for the appellant that in O.S. 484 of 23 there was active controversy between the plaintiffs and the defendants, who were codefendants, as to who was entitled to the value of the improvements, i.e., of the house which necessarily involved a consideration of the question as to whether the house was built by defendant 3 with his own funds, or by the plaintiffs and defendants 2 to 8 with the funds of the tarwad and that this decision as to who was entitled to the value of improvements was necessary in order to give relief to the plaintiff in that suit. He also argues that, even if this decision was not necessary to give a proper decree to the plaintiff, inasmuch as the decision against the present plaintiffs is incorporated in the decree it was their duty, if they wanted to dispute it, to prefer an appeal against that decree and, since they did not do so, they are now barred by the plea of res judicata from raising the same contention again in the present suit. The answer of the respondents is that the validity of the decree in O.S. 464 of 1922, was not considered in O.S. No. 684 of 1923 and so, there was no active controversy regarding it between the co-defendants in that suit, that the value of the house was awarded to defendant 1 not on the ground that he was a 'tenant' under the Malabar Tenants Act but only on the ground that he was the auction purchaser and so the adjudication on his claim for the value of the house was not necessary to give relief to the plaintiff in that suit. Lastly that, even if the adverse decision as regards the value of the improvements was incorporated in the decree it was not in law necessary for the plaintiffs to appeal against it as that decision related to a controversy between co-defendants and not to one between the plaintiff and the defendants.
4. The defendant's written statement in O.S. No. 484 of 1923 is not before us but Ex. 3 a copy of the present plaintiff's written statement has been filed. In that statement they have set forth the present contentions and claimed the value of the house as being the persons entitled to the value of improvements. On this contention issue 4 was framed by the Court. This issue is as follows. 'What is the value of improvements and to whom is it due'. It is clear that the issue did raise the question as to whom the value of the improvements should be given, whether to the present defendant 1 or to the plaintiffs. It is true that we do not see in the judgment any discussion as regards the validity of the decree in O.S. 464 of 1922. If the plaintiffs were entitled to the value of the house, it could only be on the ground that the decree in O.S. 464 of 1922 was not binding on them and that the house was built with the funds of the tarwad. It would have been more satisfactory if the Court had raised a specific issue, viz.
Is the decision in O.S. 464 of 1922 binding upon the present plaintiffs?
who were defendants 32, 34, and 35 in that suit and considered that question separately in the judgment. But the omission to do so cannot in our opinion help the respondents for, it cannot be denied that the question is impliedly raised and included in the latter part of issue 4 'to whom is it (the value of improvements) due.'? Expl. 4, to Section 11, Civil P.C., says:
Any matter which might and ought to hav0 been made ground of defence or attack in such former suit shall be deemed to have been matter directly and substantially in issue in such suit.
5. The present plaintiff could have satisfied the Court that the decision in O.S. 464 of 1922 was not binding on them; and if they had done so, they would have been given the value of the improvements in O.S. 484 of 1923. Since they failed to do so, they must now be held to be precluded from raising the same question again, provided of course that the decision on the question of the value of improvements was necessary for giving relief to the plaintiffs in that suit. On this point the appellant is supported by the recent decision of Jackson, J., in Chandu Kutti v. Viayathen Mahadevi A.I.R. 1928 Mad. 531. In that case it was held that in a suit for redemption brought by a jenmi, if there is a contest as to which of the defendants is entitled to get the value of the improvements, it is the duty of the Court to decide the contest and declare as to who should be given the value of improvements, instead of leaving that question to be fought out in a separate suit between the defendants. Applying this decision it is clear that in O.S. 484 of 1923 it was necessary for the Court before giving relief to the superior jenmi, to decide the question as to who was entitled to the value of the improvements-defendant 1 or the plaintiffs. The correctness of the decision in Chandu Kutti v. Viayathen Mahadevi A.I.R. 1928 Mad. 531 is not challenged by the learned advocate for the respondents, but he says that that decision does not apply to this case, inasmuch as defendant 1 cannot be considered to be a 'tenant' within the meaning of the term as used in the Malabar Tenants. Improvements Act; but there can be no doubt that in that case he was treated as a 'tenant in possession' and the value of improvements was given to him on that ground; as a matter of fact, it is admitted that at the time the decree was passed he was in actual possession of the house. It is therefore clear that the decision in O.S. 484 of 1923 is a bar to the plaintiff's claim in the present suit.
6. As we agree with this part of the appellant's argument, it is not necessary to consider the last argument advanced by his learned Counsel viz. that even if the decision as to, whom the value of improvements should be given is not a necessary part of the decree in O.S. 484 of 1923, inasmuch as that decision is against the present plaintiffs and is incorporated in the decree they should have appealed against and since they did not do so, the present claim is barred by res judicata. In the result, the order of the lower Court is set aside and the decree of the District Munsif is restored with costs here and in the Court below.