1. These appeals arise from suits between a landlord and his tenants and the material issue in them is as to the rate of rent. There has been a previous adjudication in 1895 between the same parties by a Court which, it is conceded, had jurisdiction, which expressly decided the issue as to the rate of rent. The adjudication is pleaded by the landlord as res judicata, and he claims that a finding in the present suit on the issue as to the rate of rent should be entered in accordance with the previous adjudication; but it so happens that there was a still earlier adjudication in 1893 on the same issue between the same parties by a competent Court, in which a different finding was arrived at. This was not pleaded in the later suits. The tenants plead that there being two conflicting judgments, neither of them could be pleaded as res judicata and the Court in the present suit was bound to, try the issue and come to a conclusion on the evidence which may be placed before it. We think that, on principle, in cases of judgments inter partes the later adjudication should be taken as superseding the earlier. If for example the earlier finding had been pleaded in the suits which resulted in the determination of 1895 and the Court had rightly or wrongly overruled the plea and decided the issue in a manner different from the previous adjudication, there can be no doubt that the later adjudication is the one which is pleadable as res judicata. So likewise if the tenants had pleaded the earlier adjudication, but had failed to prove it and the Court in the later suits had arrived at a determination on the evidence in the case, the later would be the adjudication which would be pleadable as bar. The fact that the tenants did not choose to plead the adjudication of 1893 in bar of the trial afresh of the same issue as to rates of rent cannot make any difference as regards the operation of that determination as res judicata, any more than their failure to let in a piece of evidence which might have resulted in a determination other than the actual finding. It must be remembered that the plea of res judicata is one which does not affect the jurisdiction of the Court, but is a plea in bar of a trial of a suit or an issue, as the case may be, which a party is at liberty to waive. It is quite easy to conceive of cases in which the parties to a former adjudication dissatisfied with it bring the matter again before the Courts without raising the plea of res judicata. Suppose in this case the tenants deliberately omitted to plead the adjudication of 1893 with a view, if possible, of getting the Court to hold that the rate of rent payable by them was less than what was found to be the rate in the previous suits. After having invited a decision on the merits, would they now be at liberty to go behind the last adjudication and ask for a re-trial of the issue, because the fresh finding was even, worse than the first against them? We certainly think not; and on principle it is impossible to make a distinction between a case where the plea is omitted to be taken by accident or mistake and where it is omitted to be taken by design. The only test, therefore, is whether as a matter of fact there has been an express decision on' a material issue, whatever maybe the materials on which that adjudication was arrived at. This is the view taken in two cases decided by the High Court of Allahabad in Mallu Mal v. Jhamman Lall 1 A.L.J. 410 and Darabar Singh v. Munawar All Khan 30 Ind. Cas. 775 : 13 A.L.J. 764.
2. It is contended for the appellant that this case invites the application of the maxim of competing estoppels or that estoppel against estoppel sets the matter at large. The exact meaning of that maxim or its scope is difficult of ascertainment, and in the recent case of Poulton v. Adjustable Cover and Boiler Block Co. (1908) 2 Ch.D. 430 : 77 L.J. Ch. 780 : 24 T.L.R. 782, Parker, J., as he then was, doubted the existence of any such doctrine. There may be cases where a person who pleads an estoppel may be prevented from pleading it by reason of his own representation or conduct, See Simm v. Anglo-American Telegraph Co. (1879) 5 Q.B.D. 188 : 49 L.J.Q.B. 392: 44 J.P. 280 and in that sense an estoppel against' estoppel may be said to set the matter at large. We are not aware of any instance where the maxim was applied to a case of what is called estoppel by record, except a dictum of Lord Selborne in Queen v. Hutchins (1881) 6 Q.B.D. 500 : 44 L.k 364. It must be remembered that though former adjudications are classified under the category of estoppels by English text-writers, the basis of the doctrine is different from true estoppel. The appeals must be dismissed with costs; Vakil's fee will be allowed in the first four second appeals.