1. This is an appeal on behalf of the plaintiff, whose suit was dismissed by both the Courts below. The main question raised in the suit was as to the nature of the interest held by the plaintiff in certain lands in a mouza called Kaibartagram, whether it was a darmokorari interest, as alleged by the plaintiff, or a darpatni interest, as alleged by the contesting defendant. That again depended on the question whether a tenancy which had been created in the year 1253 B.S., by Ex. 9 was a patni taluk or a mourashi mokorari grant in respect of the disputed lands. The grantor of the lease, Ex. 9, was one Radha Nath Lahiri, and, on the face of the document, it purported to be a patni lease. It comprised the lessor's interest in respect of a 7 as undivided share in two toujis therein mentioned and of a similar share in certain Brahmottar lands. It is these Brahmottar lands with which we are concerned in this suit. The plaintiff's case is that though the lease purported to foe a patni grant even in respect of these Brahmottar lands, these lands could not, under the law, be the subject-matter of a patni grant. The interest created in favour of the lessee in respect of these lands was, therefore, a mere mourashi mokorari tenancy. It was pointed out that under the provisions of the Badshahi Grants Regulation (Regulation 37 of 1793, Section 2, Clause 5) the creation of a patni in respect of a lakheraj was prohibited, and this was also clear from the terms of the preamble to the Patni Regulation 8 of 1819.
2. The contesting defendant was the purchaser of the superior tenure, under which the plaintiff or his predecessor held his tenancy, at a sale in execution of a rent decree. Admittedly he had taken no steps after the sale to annul any encumbrance under Section 167, Bengal Tenancy Act, but his case was that as the tenancy' he had purchased was a patni taluk, the plaintiff's interest which was subordinate thereto stood cancelled as a result of the sale under Section 11, Patni Regulation. Both Courts have found that though no notice under Section 167, Bengal Tenancy Act, had been served on the plaintiff or his predecessor, the contesting defendant had otherwise signified his intention to annul the plaintiff's interest, and it accordingly stood annulled.
3. The plaintiff brought the suit for a declaration, first, that his interest was that of a darmokoraridar and not a darpatni interest, and secondly, that his interest had not been annulled. It was further prayed that certain decrees for rent which the contesting defendant had obtained against the cultivating raiyats on the footing that the intermediate interest of the plaintiff had been extinguished were void and inoperative.
4. The facts of the case have been set out fully in the judgments of the Courts below, and it is not necessary to recapitulate them in detail. It is sufficient to state the facts in broad outline. The lease, Ex. 9, was granted to one Krishna Dhan Bishi whose interest devolved in due course on one Nalininath Bishi. In the year 1316 B.S., Nalini granted a sub-lease of his interest to one Suresh Chandra Mazum-dar by a patta, Ex. 10, which comprised among other properties the Brahmottar lands referred to above. It is not disputed that if Ex. 9 had created a patni in respect of these Brahmottar lands in favour of Krishnadhan Bishi, the interest of Suresh Chandra Mazumdar therein under Ex. 10 would be that of a darpatnidar. On the other hand, if the interest created by Ex. 9 in favour of Krishnadhan Bishi was a mere maurashi mokorari tenancy, Suresh Chandra Mazumdar in his turn became only a darmokoraridar under Ex. 10. In 1928 defendant 5 Bhabani Charan Babu, who had in the meantime acquired the interest of Radha Nath Lahiri, obtained a rent decree against Nalininath Bishi, and in execution of this decree Nalinath's interest was sold to defendants 3 and 4. By a subsequent partition amongst these defendants the Brahmottar lands which passed at the sale came to be allotted to defendant 3. The purchasers at this rent sale took No. steps to annul any encumbrance, so that Suresh Chandra Mazumdar's interest, whatever it was, remained as before. Bhabani Babu thereafter instituted a rent suit against the said auction-purchasers, defendants 3 and 4, and in execution of the decree which he obtained therein for rent due for the years 1335 B.S., to 1338 B.S., the tenancy in default was purchased by defendant 1 one Fakir Mohammad Sarkar. This sale admittedly took place under the provisions of the Bengal Tenancy Act, and, as already indicated, defendant 1 did not take any proceedings thereafter under Section 167, Bengal Tenancy Act, to annul the interest of Suresh Chandra Mazumdar as an encumbrance. On 2nd Asar 1343 B.S. Suresh Chandra sold his interest under Ex. 10 by private treaty to his grandson Malaya Kumar Mazumdar, the present plaintiff. Prior to that he had instituted four rent suits in the year 1335 B.S., against the cultivating tenants and recovered decrees therein on 28-11-1935. Thereafter, in 1938 Fakir Mohammad Sarkar, defendant 1, brought five rent suits against these cultivating tenants, and he impleaded in these suits the present plaintiff upon the allegation that as a result of the sale at which defendant 1 had purchased the defaulting tenancy in 1932, the present plaintiff's interest had been annulled and defendant 1 was thus brought into direct relation with the cultivating tenants from whom he accordingly claimed to recover rent. Those suits were contested by the present plaintiff along with the cultivating tenants! Their joint defence was that the present plaintiff's interest had not been annulled. In any case, it was contended that as no annulment had been effected in accordance with the procedure laid down in Section 167, Bengal Tenancy Act, although the rent sale was one under that Act, it could not be operative to extinguish the interest of the present plaintiff. Issue 4 in the suits was raised in these terms : 'Has the darpatni been duly annulled?' It was found, and this is, in fact, admitted on both sides, that no annulment had taken place under Section 167, Bengal Tenancy Act, but the Court held that as the rent sale at which Fakir Mohammad had made his purchase was that of a patni taluk, the interest of Suresh Chandra Mazumdar being an intermediate interest between that of the patnidar and the cultivating raiyats was liable to be and had in fact been annulled in accordance with the provisions of the Patni Regulation. In that view issue 4 was decided in favour of the plaintiff in those suits. An appeal was taken from those decisions, being appeal Nos. 28, 29, 30, 31 and 32 of 1939 and in the appellate Court it appears a question was raised for the first time in course of argument on behalf of the present plaintiff that his interest could not be annulled in as much as he held, not a darpatni, but a darmokorari right which was capable of being annulled only in accordance with the provisions of Section 167, Bengal Tenancy Act. As admittedly no recourse had been, had to this section, it was argued that the interest of the present plaintiff was still subsisting at the date of the sale to Fakir Mohammad, and Fakir Mohammad was consequently not entitled to recover rent directly from the cultivating raiyats. The learned Subordinate Judge who heard the appeals was of opinion that this question depended ultimately on a question of fact, and could not, therefore, be allowed to be raised for the first time in appeal. The learned Judge observed as follows:
The dar-patnidar may bring a regular suit for a declaration of his title to the land, but he should not be allowed to raise this question at the time of argument. No such objection has also been taken in the grounds of appeal. I therefore agree with the learned Munsif that the darpatni has been annulled and so the plaintiff is entitled to recover rent direct from the tenants.
The judgment of the appellate Court was delivered on 30-8-1939. It is in consequence of the reservation contained in the aforesaid remarks of the learned Judge that the present suit was instituted on 23-6-1940 whereby the plaintiff asked for the reliefs already set out above.
5. Various defences were taken, some of which were pleas in bar. These included the contention that the suit was barred under Section 42, Specific Relief Act and also that it was barred by res judicata by reason of the decision in Fakir Mohammad's rent suits of 1938. On the merits, it was contended on behalf of Fakir Mohammad, who was defendant 1 and who alone contested the suit, that the plaintiff's interest was that of a dar-patnidar and not of a dar-mourashidar, and that this interest had been duly annulled under the law.
6. Both Courts dismissed the suit, with this difference that whereas the learned Subordinate Judge who tried the suit in the first instance held against the plaintiff both on the preliminary issues in bar and on the merits, the learned District Judge in appeal decided in favour of the plaintiff on the preliminary issues but against him on the merits. In other words, the concurrent finding of the Courts below was that the interest of the plaintiff was a dar-patni and had been duly annulled, but the two Courts differed on the question raised under Section 42, Specific Relief Act, as well as on the question of res judicata.
7. In the present appeal, Mr. Amaresh Chandra Roy on behalf of the appellant has challenged the finding of the Courts below on merits, and has further argued that even if the plaintiff's interest was that of a dar-patnidar it could not be annulled except by service of notice under Section 167, Ben. Ten. Act, inasmuch as the sale of the superior tenure had been held under that Act. The point was further made that the rent sale at which defendant 1 had made his purchase was not a rent sale within the meaning of the Bengal Tenancy Act, and there could be no right in the purchaser at such a sale to annul any subordinate interest as an encumbrance. In support of the first branch of the argument on the question of law reliance was placed on the Pull Bench decision of the Patna High Court in Pirthvi Chand Lal v. Rani Prabhabati 31 A.I.R. 1944 Pat. 41, in which it was held, overruling the contrary view taken by this Court in Durlav Chandra v. Jamiruddin Ahmed ('26) 13 A.I.R. 1926 Cal. 314, that where a patni is sold not under that Patni Regulation but under the Bengal Tenancy Act, the provisions of the regulation regarding the cancellation of under-tenures will not apply, but an under-tenure can be annulled only by service of notice under Section 167, Ben. Ten. Act. The liability of a patni to be sold for its arrears free from any encumbrances created by the defaulting patnidar was held not to be one of the incidents of a patni tenure as declared under Section 3, proviso 2, Patni Regulation so as to be independent of the sale being under the Regulation, but to be a special liability created by Section 11, para. 3 of the Regulation.
8. On behalf of respondent, defendant 1, Mr. Surajit Chandra Lahiri submitted that the plea of res judicata furnished a complete answer to the suit and it was not necessary to go into the question of law raised by Mr. Roy. As already pointed out, on this question of res judicata, the decision of the lower appellate Court was in favour of the appellant, but, in view of the line of defence indicated by Mr. Lahiri, Mr. Roy thought it right to deal fully with the question of res judicata in his opening instead of waiting to deal with it in his reply. We have had, in fact, very full arguments on this question from both sides, and we are indebted to the learned Advocates for the help they have given. Mr. Roy's main points were these : (1) That the question as to the character of the plaintiff's interest had not been raised in Fakir Mohammad's rent suits in the manner it was sought to be raised in-the present suit. (2) That in any case the point was sought to be raised in the rent suits only at the appellate stage, but the appellate Court expressly refrained from deciding the question. On the other hand, it reserved liberty to the present plaintiff to institute a suit for a declaration of his title to the lands on the basis of his interest being that of a dar-mourasidar. (3) That this question could not be regarded as a matter directly and substantially in issue in the reiit suits : the present plaintiff was only a pro forma defendant in these suits against whom no relief had been sought, and even if there was a decision in his favour, such a decision could not be res judicata.
9. We shall deal with all these points together. Mr. Roy placed considerable reliance on the decision of the Judicial Committee in Run Bahadur Singh v. Lucho Koer ('85) 12 I.A. 23, which he cited as an authority for the broad proposition that if a question of title was raised in a rent suit, the decision on that question in such suit could not operate as res judicata in a subsequent title suit. Special reliance was made on the following passage in the judgment of the Judicial Committee:
Having regard, however, to the subject-matter of the suit, to the form of the issue (which has beers above set out), and to some expressions of the learned Judge, their Lordships are further of opinion that the question of title was no more than incidental and subsidiary to the main question, viz., whether any and what rent was due from the tenant, and that on this ground also the judgment was not conclusive.
In our opinion this passage is of no assistance to the appellant. In the first place, it is to be observed that their Lordships were not laying down any general proposition of law, but were merely referring to the matter as it stood on the facts of the particular case in hand. The decision of their Lordships on the question of res judicata was really rested on another ground. They then added this observation, which no doubt suggests that this was an additional ground on which the previous judgment might be held to be not res judicata. Whether a question of title raised in a rent suit is incidental or subsidiary to the main question, must depend upon the facts of the case. We do not think that it can be laid down as a rule and at one stage Mr. Roy in course of his argument conceded this, that no question of title can be at all raised in a rent suit, so as to make a decision thereon binding upon the parties in a subsequent suit. In their Lordships' view, the question of title as raised in the rent suit in the case before them was no more than incidental and subsidiary to the main question, which was whether any and what rent was due to the plaintiff. In other words, the main question was as regards the share of the rent to which the plaintiff was entitled. Though this depended on the existence and extent of the plaintiff's title still it could not be said that the question of title was not anything but incidental or subsidiary in the form in which it had been raised. The issue in the previous rent suit there was in these terms:
Did the plaintiff or her deceased husband realise the rent of the 8 annaa separately and in a state of separation before this, or did the plaintiff's husband during his lifetime realise the rent with Run Bahadur jointly, and after him, did Bun Bahadur alone receive rent of the entire 16 annas.
The rent suit was brought by the widow of a deceased brother to which the surviving brother was made a party on his application, and the question raised was whether there had been separation between the two brothers or they were living in a state of jointness at the time of the death of the deceased brother. The rent suit related to a very small portion of the estate, and the main ground on which their Lordships decided the case was that it would be wrong to hold that a decision in a suit concerning such a small portion of the estate should be allowed to determine the title to the entire estate. Having indicated that to be the main ground of their decision, they went on to add the observation we have quoted. The issue in the previous, rent suit as framed raised only the question of jointness or separation between the brothers, and that was done with a view to determine whether the brothers, and the widow, and before her husband, had been realising the rent separately. This was regarded by their Lordships to be merely an incidental and subsidiary issue, which did not directly raise the question of title. This judgment of the Privy Council was explained by this Court in Srihari Banerji v. Khitish Chandra ('97) 24 Cal. 569, and it will be seen from that decision that where the issue in the rent suit was for what share the plaintiff was entitled to rent and not to what share of the property the plaintiff was entitled as owner the question of title could be said to have been in issue in that suit only incidentally and not directly, and that the subsequent suit-could not, therefore, be said to be barred as res judicata. Reference was also made to another decision of the Judicial Committee in Radhamadhub Holdar v. Monohur Mukerji ('88) 15 I.A. 97, where the dismissal of a rent suit which involved the question of title was held to bar a subsequent suit.
10. The main question which was raised in Fakir Mohammad's suits was whether Fakir Mohammad was entitled to recover rent from the cultivating raiyats, and as Fakir Mohammad had impleaded the present plaintiff as a defendant, it was quite clear that he was inviting an adjudication as between him and the present plaintiff of the question whether the present plaintiff's interest was or was not subsisting at the date of Fakir Mohammad's purchase so as to intercept Fakir Mohammad's claim to the rent. It is no doubt true that both sides assumed that the interest of the present plaintiff was a dar-patni interest and the issue also refers to it as dar-patni. But Fakir Mohammad's ease was that the interest had been annulled. It was, therefore, incumbent on the present plaintiff as defendant in those suits to set up all possible grounds on which annulment could be resisted, and if he did not choose to set up the nature of his interest as a ground against annulment, he cannot obviously be allowed to agitate that question again in a subsequent suit. The rule of constructive res judicata means that any issue which might and ought to have been raised by party in a suit if not raised, must be deemed to have been decided against the party. Mr. Roy himself admitted that the question of title and the question of annulment hung together. If that be so, it is not clear why the question of title cannot be said to have been impliedly decided against his client in the previous rent suits as being involved in the finding that the plaintiff's interest had been annulled. In our opinion the issue of annulment as raised in the rent suits did directly and substantially raise the issue of title, which in its turn depended upon the nature of the interest which the plaintiff held in the disputed lands.
11. We have therefore, only to consider the effect of the reservation which was made by the appellate Court in its judgment in those suits. The question is whether or not by reason of such reservation it could be said that the question of title had not been decided at all. Mr. Roy's contention was that the learned Subordinate Judge expressly left the whole question of title open, because in his view it depended on a question of fact, and the learned advocate relied upon the decision of the Judicial Committee in Parsotam Gir v. Narbada Gir ('99) 26 I.A. 175 in this connection. The headnote of that case is as follows:
Where a former suit between the same parties in the same Court and for the same relief resulted in a decree of dismissal, the judgment leaving it open to the plaintiff to bring a fresh suit and leaving untouched and undecided all matters' affecting the rights of the parties:
Held, that such a decree did not constitute as res judicata either under the general law or under Section 13 of Act 11 of 1882, not being a final decision of the suit.
This case, again, is of no help to the appellant. It will be seen that the second suit in that case was not based on the same cause of action as the earlier suit. The second suit was against Narendra Gir in his personal capacity, whereas the earlier suit was against him in his capacity as a legal representative of his deceased father, the original defendant in the suit. On this ground that ease is distinguishable. So far as the present case is concerned, there can be no doubt that the parties filled the same character both in the present suit and in the previous rent suits, and there is no reason, therefore, why the previous judgment should not be held to be binding as res judicata. Mr. Lahiri relied strongly on the case in Robert Watson & Co. v. Collector of Liliah Rajshahya ('69-70) 13 M.I.A. 160. His argument was that the test in all such cases is whether or not the Court could have granted permission to a party to withdraw a suit with liberty to bring another suit on the same cause of action. Where upon the facts such liberty could not be given, the second suit would be barred. In Robert Watson & Co. v. Collector of Liliah Rajshahya ('69-70) 13 M.I.A. 160 a suit had been brought to set aside an auction sale of a patni taluk which was dismissed for want of evidence on the part of the plaintiff, but in dismissing the suit the Court made a reservation to the effect that the order of dismissal was not to be a bar to the plaintiff or to any other person who might substantiate their rights, from proceeding to recover. On a fresh suit by the same parties for the same matter, it was held by the Judicial Committee that such reservation was of no effect, as under the Civil Procedure Code as it then stood, the former suit was a bar, and the plea of res judicata was consequently allowed.
12. In our opinion, the question of annulment was a material issue in the previous suits and not merely an incidental or collateral issue, and as it involved the question of the nature of the plaintiff's interest in the disputed lands, we hold that the decision in the rent suits would be a bar to the matter being re-opened again in the present suit. It is true that the present plaintiff was a defendant in the previous suits, but this will make no difference in the application of the rule of constructive res judicata. In this connexion, we may refer to another case which was cited by Mr. Lahiri, Abdul Hamid v. Bejoy Chand : AIR1932Cal108 . This case shows that where the defendant's right to the relief which he seeks in a subsequent suit instituted by him might and ought to have been raised in the earlier suit against him, and where he had in fact raised it in the earlier suit, but the Court remitted him to another suit, the subsequent suit would still be barred by res judicata, notwithstanding that liberty had been expressly reserved to him to institute a separate suit. It is to be observed that the decrees in Fakir Mohammad's rent suits make no reference to the reservation which was to be found in the body of the judgment. It was not stated in the decrees, for instance, that the decrees were subject to the result of any future title suit which Suresh Chandra Mazumdar might thereafter bring on the question of the nature of his interest. This is an additional reason why the reservation, such as it was, could be of no effect.
13. Taking all the facts and circumstances of the case we hold accordingly that the plea of res judicata must prevail. Both sides indicated to us that in this view of the matter it would not be necessary for us to go into the other questions which were raised, and we do not accordingly do so.
14. The result is that the appeal fails and is dismissed with costs.