1. This appeal is by the defendants in a suit brought by the plaintiffs for a declaration that as reversioners they have title to the land in suit and for the setting aside of an alienation made by the last limited owner Katyani Devi in favour of her daughter Sita-labala and for the setting aside of the transfer by Sitala Bala to the other defendant Jitendra Nath Sarkar. The plaintiffs' suit has been decreed by both the Courts below and the defendants have appealed.
2. The defence taken was that the transfer by the last limited owner was for legal necessity and therefore conveyed the entire interest to Sitalabala. The next defence was that Sita-labala's transfer to the defendant Jitendra Nath Sarkar was for valid consideration and therefore unassailable. A further point taken was that the question of legal necessity could not be reagitated in this suit inasmuch as that question had been raised and finally decided in a former suit in which the present parties were also parties; in other words, the plea of res judicata was taken. The Courts below held that this plea could not be maintained inasmuch as the-former suit was a mere rent suit and the question of legal necessity was decided only incidentally. Thereafter both the Courts entered into the question of legal necessity and found that there was none and on this ground they have decreed the plaintiffs', suit.
3. As stated before the defendants have appealed and two main questions were raised. First, it was contended that there was no legal necessity' and that the Courts really had not come to a definite conclusion that there was legal necessity. Secondly, it was contended that the Courts below were wrong in going, into the question of legal necessity as the entertainment of: that question was barred as being res judicata.
4. There is no substance in the first point taken. The Courts have gone into the question of legal necessity with great thoroughness and have definitely come to a finding that there was no legal necessity for the transfer. It is wrong to say that there has been no conclusive finding on this point. The finding is quite definite and conclusive. It is a finding of fact based upon the evidence which has been carefully considered and it is not permissible for this Court to interfere with such a finding of fact. The first ground therefore fails.
5. The next question is whether the question of legal necessity could be investigated in this suit having regard to the previous decision on this question. It will now be necessary to go into the previous history of this case. That the plaintiffs are the reversioners of Katyani Devi is not denied. It is also established that Katyani Devi executed a kabala in favour of Sitalabala transferring the property in suit to her alleging legal necessity. Further there is the kabala executed by Sitalabala in favour of Jitendra Nath Sarkar whereby she transfers her interest to him. Now, prior to the institution of this suit and prior to the transfer by Sitalabala to Jitendra, Jitendra brought a suit for rent against the tenant of the property in suit. The tenant resisted the claim of Jitendra on the ground that Jitendra was not the landlord but that the landlords were the reversioners of Katyani Devi who may be called the Bagchis. The tenant stated that he had paid the rent for the period in suit to the Bagchis. The Bagchis were made pro forma defendants. They filed a written statement and contested the rent suit, claiming that the transfer by Katyani Devi to Sitalabala was void inasmuch as there was no legal necessity for such transfer. It is admitted by both sides that if the transfer by Katyani Devi to Sitalabala was not for legal necessity it will be void because Katyani Devi was a limited owner. The Bagchis were the reversioners. From the judgment it appears that the trial in the rent suit was practically confined to the determination of the question whether the transfer by Katyani Devi to Sitalabala was for legal necessity. The pro forma defendants the Bagchis who are the present plaintiffs expressly raised this point in the rent suit and contended that they alone were entitled to the land. No issues were framed in the rent suit but the learned Mun-sif who tried it set out the point for determination as follows: (1) Is there any relationship of landlord and tenant between the plaintiff and the pro forma (Sic) defendant? (2) To what reliefs, if any, is the plaintiff entitled? He thereafter proceeds to discuss the point No. (1) thus:
'Point No. 1. If the Bagchis can prove that they between themselves had the 16 annas interest in the nishkar, it will then follow that the plaintiff had no interest therein and he will be automatically non-suited.'
The learned Munsif then goes on to state how the claim of the Bagchis arises and says that the Bagchis stated that the property belonged originally to one Jadunath whose widow was Katyani Devi and that the Bagchis claimed to be the descendants of the brother of Jadunath and thus to be the reversioners of Jadunath. He further points out that the Bagchis challenged the transfer by Jadunath's widow Katyani Devi to Sitalabala on the ground that there was no legal necessity for this transfer. Thereafter the learned Munsif goes into the question of whether there was legal necessity and after an elaborate discussion found that there was legal necessity and that therefore the plaintiff was entitled to succeed in the suit for rent. He decreed the suit and awarded costs not only against the tenant defendant but also against the Bagchis who were pro forma defendants.
6. The question for decision now is whether the finding of the Munsif in the rent suit on the question of legal necessity would operate as res judicata in the present suit. In my opinion it would. In this connection I would refer to the first portion of Section 11 of the Code of Civil Procedure; I am of opinion that all the requisites mentioned in this portion of Section 11 have been satisfied. The present suit is between the same parties as the former rent suit. The Munsif who tried the rent suit is competent to try the present suit as it falls within the pecuniary jurisdiction of the Munsif. In the rent suit although there was no formal issue on the question of the validity of the transfer by Katyanj Devi to Sitalabala, as a matter of fact there was contest in which the present question was directly and substantially in issue. The whole suit was decided on this issue and that was the only point which was raised and decided. Therefore it seems to me that the question whether the transfer by Katyani Devi in favour of Sitalabala is valid or not was in issue directly and substantially in the former rent suit and was decided therein. In these circumstances although the former suit was a rent suit I am of opinion that the decision of this question would operate as res judicata. I would also point out that the Bagchis whose claim was negatived by the rent suit had a right to appeal from the decision in that suit inasmuch as costs had been awarded against them.
7. Learned Advocate appearing on behalf of the respondents contends that the question having been decided in a rent suit it could not be res judicata in a title suit. His argument briefly is that the question was not directly and substantially in issue in the rent suit but that it was a matter which arose only incidentally. That being so, he argues that the decision of the Munsif in the rent suit regarding this matter cannot be res judicata. I am not inclined to agree with this view. The present question was directly and substantially in issue in the rent suit and it was put in issue by the Bagchis who filed a written statement and who litigated the question and invited a decision thereon. It cannot be said by them now that the decision of this point is not binding on them. There is no hard and fast rule that a decision of an issue in a rent suit cannot ever be relied upon as res judicata in a subsequent title suit and indeed the case law on this point is quite clear. Section 11 of the Code of Civil Procedure is based on the well known principle 'nemo debet bis vexari pro eadem causa'. Indeed the general law relating to res judicata is founded on this principle and the principle simply means this that no one should be vexed twice with respect to the same question. If the question has been directly and substantially raised in the rent suit and decided therein I can see no reason why the principle should not apply. There is nothing in the words of Section 11 which would prevent the application of this principle. Learned Advocate appearing on behalf of the respondents relied very strongly on the case of Rajah Run Bahadoor Singh v. Mt. Lachoo Koer', 12 Ind App 23 (P C) where their Lordships held that a question of title decided in a former rent suit would not be conclusive in a subsequent title suit. As I read the decision it is based entirely on the ground that the Munsif who tried the rent suit had no jurisdiction to try the subsequent suit for title and it is upon this ground that it was held that the decision would not amount to res judicata. At page 38 the reason is given in these words:
'If this construction of the law were not adopted, the lowest Court in India might determine finally, and without appeal to the High Court, the title to the greatest estate in the Indian Empire.'
From this and the other parts of the judgment it is quite clear that their Lordships did not hold the view that the decision in a rent suit regarding an issue which was directly and substantially 'raised would in no circumstances operate as res judicata. There are numerous decisions on this point and there are observations in some of these decisions which conflict with observations in others. I do not propose to discuss these decisions in detail, but I shall mention the decisions which have been placed before me out of deference to learned Advocates appearing in this case. After being through all these decisions I am of opinion that the correct conclusion to be drawn from them is as has been stated by me, namely, that the question of title decided in a rent suit may operate as res judicata if the question of title was directly and substantially in issue and if the Court which tried the rent suit would have had the jurisdiction to try the subsequent title suit. In this connection I would refer to the observations of Sir Dinshaw Mulla at page 40 of his treatise on the Code of Civil Procedure, Ninth edition, where he makes the following observations and gives an illustration:
'First suit for rent, subsequent suit for title: In this class of case it is clear that the subsequent suit being one for title, the question of title is a matter 'directly and substantially' in issue in that suit. Whichever party therefore raises the plea of res judicata in that suit must show that the question of title was also 'directly and substantially' in issue in the former suit, that is, in the previously decid ed suit. If the question of title was in issue in its entirety in the former suit, it would be a matter that was 'directly and substantially in issue in that suit. But if the issue in the former suit did not cover the entire question of title, in other words, if it fell short of going to the very root of the title, and was confined only to some of the incidents of title, the question of title would be a matter which was collaterally or incidentally' in issue in the former suit.
In the following illustration it is assumed that the other conditions of res judicata are fulfilled.
(a) A, claiming to be the chela and heir of a deceased mohunt, sues B, for rent of certain lands forming part of the estate of the Mohunt. C claims that he, and not A, is the chela and heir of the deceased and that he is entitled to the rent. C is thereupon joined as a defendant to the suit. The issues raised are:
(1) Whether A or C is the chela and heir of the mohunt?
(2) Whether any and, if so, what rent is due from B?
The Court finds that A is the chela and heir of the mohunt. It also finds Rs. 2,500/-due by B for rent and A's claim is decreed.
Subsequently C sues A for a declaration that he is the chela and heir of the mohunt and claims that as such he is entitled to the whole of the property left by the mohunt. A contends that the question, who is the chela and heir of the deceased, is res judicata. Is the question res judicata? The answer is that it is for though the former suit was for rent, the entire question of title to the property of the deceased was directly and substantially in issue in that suit and it was decided against C: 'Toponidhee v. Sreeputty', 5 Cal 832. See also 'Gobind v. Taruck', 3 Cal 145.'
In my opinion the present suit falls within the illustration given by the learned author. I hold therefore that the present suit should be dismissed inasmuch as the question of legal necessity cannot be entertained as the decision of this question in that former rent suit operate as res judicata.
8. Accordingly I set aside, the decision of the Courts below and dismiss the suit. This appeal is allowed with costs throughout.
9. Leave to appeal under Clause 15 of the Letters Patent is prayed for and is granted.
10. I now append to this judgment the cases upon which the parties have relied . They are as follows:
'Midnapore Zemindary Co. Ltd. v. Naresh Narayan Roy', 48 Ind App 49; Narendra Nath v. Ananda Chandra', 37 Cal W N 924; 'Pachu Mondal v. Chandra Kanta', 14 Cal L J 220; 'Mahendra Nath v. Shamsunnessa Khatun, 21 Cal L J 157; 'Rajah Run Bahadoor Singh v. Mt. Lachoo Koer', 12 Ind App 23; 'Gobind Chunder Koondu and Ors. v. Taruck Chunder', 3 Cal 145; 'Midnapore Zemindary Co. Ltd. v. Jogendra Kumar', 33 Cal L J 186 and 'Toponidhee v. Sreeputty Sahanee', 5 Cal 832.