1. The only question in this appeal is whether the plaintiffs' claim is barred by reason of the decision in O.S. No. 119 of 1914. The learned District Judge has held that the plaintiffs' suit is barred by res judicata by reason of the decision in the previous suit. It is urged by Mr. Venkatarayaliah that the decision in O.S. No. 119 of 1914 does not restrict the right to 163-93 acres and that even if it be held to have restricted the right to that extent it was unnecessary for the decision in that case to have so restricted it and, therefore, such decision cannot operate as res judicata in the subsequent suit. In the plaint in the previous suit the plaintiffs claimed the right to irrigate all their wet lands whatever the extent thereof might be, (vide para. 7 of the plaint) and prayed that their right to the use of the Ogeru water free of charge for the irrigation of all their wet lands, whatever the extent thereof may be, by means of the irrigation works now maintained by them, may be established.' In the written statement filed by the defendant the right to irrigate free of charge was conceded only to the extent of 54 acres and the right to irrigate all the lands in the possession of the plaintiffs was denied. The first issue was raised on this contention and it is as follows:
Whether the plaintiffs are entitled by virtue of grant, or prescription, or both, to the water of Ogeru vagu free of water tax for all their lands in the suit village without reference to the extent or the kind of crop raised or for only 54 acres of wet land referred to in the W. S.
2. The learned Subordinate Judge after discussing the evidence gave his finding in these terms:.. My finding on the first issue is that the plaintiffs are entitled to take the Ogeru water free of tax by virtue of the grant and by prescription to 163 and odd acres which have been the actual wet area all through.
3. In the decree it was stated 'that this Court doth hereby declare the plaintiffs' right to use the Ogeru water free of tax by means of irrigation works maintained by them for cultivating their lands which are stated to be acres 163 93 cents according to the present measurement.' The question is whether the right claimed by the plaintiffs to the use of the Ogeru water for cultivating all their lands irrespective of the extent in dispute was denied or not. Considering the pleadings and the issues raised in the case it cannot be said that the right of the plaintiffs to irrigate an unlimited extent of land was not denied to them. Though the claim was for refund of the money paid under protest yet the claim was based upon the right of the plaintiffs to irrigate their lands with the water of the Ogeru. It was, therefore, necessary for the determination of the suit to ascertain what was the extent of the land which the plaintiffs were entitled to irrigate free of charge. The finding, therefore, of the learned Judge was necessary for the determination of the matter in dispute in that case.
4. When the finding of the Judge restricted the right of the plaintiffs to acres 163-93 and denied their right to unlimited use of the water, they ought to have appealed against that judgment. Mr. Venkatarayaliah contends that he could not have appealed against that portion of the judgment which denied the right to an unlimited use of water because the decree was in his favour. [A] No doubt the decree for the refund of the amount paid under protest was in his favour; but in passing that decree the Subordinate Judge had to find on the right of the plaintiffs to use the water flowing in the Ogeru and that right he restricted to the irrigation of acres 163-93. If the plaintiffs were dissatisfied with limitation placed upon their right by the learned Judge they should have appealed against that portion of the judgment. The decision in Bai Nathi v. Narshi Dullabh 55 Ind. Cas. 322 : 44 B. 321 : 22 Bom. L.R. 64 does not apply to the present case. In that case the suit was dismissed and the incidental finding was held not to be res judicata, in a subsequent suit because that finding was unnecessary for the disposal of the previous suit. In this suit, for the disposal of O.S. No. 119 of 1914 it was necessary to find the extent of the plaintiffs' right to the free use of water. As the learned District Judge rightly observes Explanation 5 to Section 11 applies to the facts of this case, for it enacts that 'any relief claimed in the plaint which is not expressly granted by the decree shall for the purposes of this section to be deemed to have been refused.' The plaintiffs claimed relief in respect of all the lands in their possession. This was denied by the Government and, therefore, it was necessary for the learned Judge to decide on the right of the plaintiffs and he found that the right should be restricted to acres 163-93. In the present case it is admitted that the tax levied by the Government was on land brought into cultivation recently and the extent of this new wet cultivation is not a part of the 163-93 acres which was in dispute in the previous suit. That being so, the Government was justified in levying water tax on wet cultivation outside the area in dispute in the previous suit and the plaintiffs cannot claim relief by reason of the decision in the previous suit. [A]
5. The second appeal fails and is dismissed with costs.