Lancelot Sanderson, C.J.
1. I think that this appeal ought to be dismissed: and inasmuch as the circumstances are rather peculiar I think it right to make a few observations.
2. The first point which was raised by the learned Vakil was with regard to Estoppel, but he did not argue it very strenuously and did not read the judgment of the learned Judge upon that point: and, the fact was, I think, brought home to him, during the course of the argument by the observations which fell from my learned brother and myself, that there was no case of estoppel. I need not say anything upon that point except that I agree with the judgment of the learned Judge.
3. The real point which has been argued before us is that this was matter of res judicata.
4. The action in this case was brought by the plaintiffs to obtain possession of the land and upon this question of res judicata, it appears that in a previous suit in which the present defendant was the plaintiff and the present plaintiffs and one Madan Mandal were the defendants there was an express issue as to whether the rights of occupancy were transferable or not. I ought to have said that that is ah issue which has been tried in this case,---the Court of first instance avoided the decision of that issue by saying that the present plaintiffs, who were the defendants in the previous suit, as auction purchasers of the holding could not raise the question of the transferability, and the learned Subordinate Judge stated in his judgment: 'This decision will be no bar to the defendants (that is to say, the present plaintiffs) if they raise the question of transferability at any other time us landlords.'
5. Now, the learned Judge, Mr. Justice Newbould, has decided that under those circumstances the matter of the issue of the transferability of the occupancy holding was not res judicata.
6. The learned Vakil for the appellant has argued that the learned Subordinate Judge in the first suit, if I may so call it, had no jurisdiction to do that which he did, namely, to leave open the question of the transferability of the occupancy holding, and to say that the decision in that case would be no bar to the plaintiffs to raising the question at a later date; and, he then proceeds to argue that if that be so, and the learned Judge had no jurisdiction to make that order, then that part of the order must be taken as if it had not been made and consequently he argues that inasmuch as the issue of the transferability of the occupancy holding was in fact raised in the first suit and inasmuch as the plaintiffs obtained a decree in the first suit it must be taken that that issue was decided, and has decided in favour of the plaintiff in that case, that is to say, in favour of the defendant in this case.
7. In my judgment, that is not a sound argument.
8. Before I give my reasons for that opinion, I must say that I cannot approve of the course which was taken by the learned Subordinate Judge in the first suit. I think that if that course were to be adopted in other oases, it might lead to multiplication of law suits and to much delay and also to unnecessary expenses to the parties and might lead to considerable injustice. I hope that such course will not be adopted and that anything we say in this case will not be taken as approving in any sense whatever of the course which was adopted by the learned Subordinate Judge in the first suit. But that is not the point that is material to the question in this case.
9. The point that I have to consider is whether the issue is a matter of res judicata within the meaning of Section 11 of the Civil Procedure Code. That Section is as follows:---'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties...litigating under the same title in a Court competent to try such subsequent suit.' now all that, as far as I have gone,---applies to this case because it is clear that the Court was a competent Court; the parties are the same; and there is no doubt that the matter in issue in this suit was in issue in the first suit---then the Section goes on to say, 'and has been heard and finally decided by such Court.'
10. In relying upon this defence of res judicata Mr. Roy's client has to show two things: first he has to show that this matter was in issue in the first suit and the second thing he has to show is that it has been heard and finally decided by such Court. We find that the matter in the first suit was dealt with in this way; in the first Court it was decided that it was not open to the then defendants (the plaintiffs in this case) to raise this point, and, therefore, as regards the first Court it cannot be said that that issue was decided by the first Court. Then the learned Subordinate Judge said in effect that though he was giving the plaintiff a decree, he was not giving the plaintiff a decree on the ground that the occupancy holding was transferable: on the contrary the effect of what he said was that he did not decide that question but that he left that question to be decided on a future date, if necessary. In this state of things, how can it be said that Mr. Roy's client has shown that the matter was not only in issue in the former suit but was finally decided in that suit?
11. In the case of Parsotam Gir v. Narbada Gir (2) Lord Macnaghten said this: 'The question is not whether the judgment of the High Court in 1886 was right'---so also here the question is not whether the judgment of the learned Subordinate Judge in the former suit was right---'but whether it did or did not finally decide the present question as between Nepal Gir and Narbada Gir.'---So here the question is whether the learned Subordinate Judge did or did not finally decide the present question between the parties, namely, whether this occupancy holding was transferable or not.---'It would be a contradiction in terms to say that the Court had finally decided matters which it expressly left untouched and undecided.' I think these remarks are applicable to the present case and, for these reasons I think that the learned Judge's judgment, which if I may say so is quite clear, is right and ought to be supported and this appeal dismissed with costs.
N. R. Chatterjea, J.
12. I agree