Madhavan Nair, J.
1. As a result of the decision of the High Court in S.A. No. 904 of 1926, the plaintiff has instituted the suit out of which this second appeal arises, for the recovery of water rate claimed for Faslies 1328, 1330, 1334 and 1336 from defendants Nos. 1 and 2. The facts of the case are clearly stated in the lower Court's judgment and there is no need to re-state them here.
2. The question arising for decision in this case is whether the decision of the Deputy Collector on issue No. 6 in S.S. No. 132 of 1917 is res judicata in the present suit with regard to the plaintiff's claim. In that suit the present plaintiff's predecessor asked for recovery of arrears of rent for Faslies 1324 and 1326. Various issues were framed with respect to the claim. Two of them were:
(1)Whether there is any tank in No. 314; (2) Whether plaintiff is entitled to any water rate at Rs. 8 an acre on the extent of No. 314.
3. Issue No. 6 in that suit ran in these terms: 'Whether the suit is maintainable in its present form as it is distinctly a suit for enhancement of rent'. On the first two issues the Deputy Collector recorded the following findings:
On the first issue I find that the tank lies in No. 314 of defendant; and on the second issue that he formed the tank for his own use one not having existed before as alleged by plaintiff and that plaintiff is not entitled to levy water rate on a private tank formed at the ryot's expense to improve his holdings.
4. On issue No. 6 he stated, the tank being a private tank no finding is necessary on this issue which would arise only if I had found that it belongs to plaintiff.
5. And then he expressed the opinion:
assuming that it was dry for the sake of argument, plaintiff cannot tax the ryots improvements, and if he wished to do so, should file a suit for enhancement of rent before the Collector
6. Having regard to the finding on this issue that the plaintiff is not entitled to file a suit for enhancement of rent without getting the sanction of the Collector, it is now pleaded that it is not open to the plaintiff to claim water rate in the present suit. The lower Court upheld the contention that the decision on issue No. 6 by the Deputy Collector given above is res judicata in the present suit, which was, therefore, dismissed.
7. It is now argued by Mr. Venkataramana Rao, on behalf of the plaintiff-appellant that the finding on issue No. 6 being unnecessary for the disposal of the previous suit by the then Deputy Collector, that finding cannot be res judicata, when the same question arises for decision in the subsequent suit. This argument was not accepted by the lower Court on the ground that the findings on all the issues Nos. 1, 2 and 6 were necessary for the disposal of that case, and therefore, the point was once for all finally decided against the plaintiff. In my opinion, this position is clearly untenable, not only having regard to the opinion that the Deputy Collector has himself expressed about the nature of the findings on issue No. 6, but also with regard to the decisions bearing on the point. In Ramaswami Reddi v. Marudai Reddi 84 Ind. Cas. 622 : 47 M 453 : 46 M. L. J. 198 : 19 L.W. 377 : (1924) M.W.N. 241 : A.I.R. 1924 Mad. 469 : 34 M.L.T. 62 which refers to the well known decision of the Privy Council in Midnapur Zemindari Co., Ltd. v. Naresh Narain Roy 64 Ind. Cas. 231, 48 C 460 : 14 L.W. 265 : 30 M.L.T. 279 : A.I.R. 1922 P.C. 241 : 48 I.A. 49 it was held by this Court that the finding on an issue which was not necessary for the disposal of a suit cannot be considered to be res judicata when the point involved in that finding arises for decision in a subsequent suit. In that case, which was a suit in ejectment, the defendants pleaded that they were entitled to occupancy rights in the land, that in any event they were tenants from year to year, and as notice to quit had not been given to them, the suit was not maintainable. The District Munsif held that the defendants had no occupancy rights, that they were tenants from year to year, and that as notice to quit had not been given, the suit was not maintainable and dismissed the suit. On appeal the lower Appellate Court affirmed the decree on the ground of want of notice to quit. The High Court affirmed the lower Appellate Court's decree on the same ground. The plaintiff, having subsequently given a proper notice to quit, the question arose whether the defendants could set up occupancy rights. It was pleaded that the question of occupancy rights was res judicata. It will be observed that a decision on the point was given by the Deputy Collector; but his judgment was not based upon that finding but was based on the ground that no notice to quit was given; and it was this ground and this ground alone that was dealt with by the lower Appellate Court and the High Court. The two learned Judges of this Court who heard that case, Krishnan and Waller, JJ. followed the Privy Council decision in Midnapur Zemindari Co., Ltd. v. Naresh Narayan Roy 64 Ind. Cas. 231, 48 C 460 : 14 L.W. 265 : 30 M.L.T. 279 : A.I.R. 1922 P.C. 241 : 48 I.A. 49 and held that the decision on the question of occupancy rights was not res judicata and could be raised again. Applying the principle of that case to the present case, what we have to find out is whether the decision on issue No. 6 was necessary for the disposal of S.S. No. 132 of 1917. That it was not necessary appears to be clear from the opinion of the Deputy Collector himself which I have already quoted; viz., 'The tank being a private tank, no finding is necessary on this issue (issue No. 6) which would arise only if I had found that it belongs to the plaintiff'. What more can be said when the Deputy Collector himself says that that finding was not necessary? And further, it is clear that the findings on the first two issues were alone sufficient to dispose of that case. In these circumstances, I am of opinion that the finding on issue No. 6 in S.S. No. 132 of 1917 cannot be considered to be res judicata in this suit.
8. The result is that the lower Court's decision is set aside and the case is remanded to the District Judge of West Godaveri for disposal on the merits. The appellant is entitled to his costs in this Court.