1. There is only one point of decision placed before me in this appeal and it is whether or not the defence taken in the suit out of which this appeal arises, to the effect that the land claimed by the plaintiffs does not appertain to a holding purchased by him is barred as being res judicata. The question arises in this way. The plaintiff got an ex parte rent decree in Bent suit No. 1131 of 1933 against the defendant with respect to a jama bearing a rental of Rs. 5-7-0 and in execution of that decree he put the holding to sale and purchased it. He went to take possession and the defendants prevented him from doing so with respect to two plots of land which the plaintiff asserts appertain to the holding purchased by him. On these allegations the suit is brought.
2. The defendants' case is that these two plots do not appertain to the holding purchased and that they are the niskar land of the God Sridhar Jiu of whom they are the shebaits. The trial Court held that the land appertains to the holding purchased by the plaintiff and that the defendants are barred from asserting that they do not so appertain inasmuch as they should have raised this contention in Rent suit No. 1131 of 1933 instituted against them by the plaintiff and did not. On appeal the lower appellate Court has found that the land does not appertain to the holding purchased, that it belongs to the God Sridhar Jew and that the defendants are in possession of it as she-baits of the Thakur. It also finds that the defence taken is not barred as being res judicata. The plaintiff appeals. The finding of fact that the land does not appertain to the holding purchased by the plaintiff and that it is the land of the Thakur is not challenged. It is argued however that the defendants are bound by the ex parte rent decree from taking this defence.
3. The argument urged on behalf of the appellant may be summarized thus. In the rent suit the plaintiff was bound under Section 148, Ben. Ten. Act, to give in his plaint details of the plots which appertain to the tenancy and to give the number which the tenancy bore on the Record of Rights. In the plaint in the rent suit the tenancy was described as consisting of the two dags of the present suit together with other dags. The defendants did not appear to defend the suit and an ex parte decree was passed, The question whether these two plots appertained to the holding or not was a matter which might and ought to have been made a ground of defence in the rent suit and as it has not been so made, the defendants are precluded from now raising this defence. Reliance is placed on the provisions of Section 11, Expl. 4, Civil P.C.
4. The respondents have a two-fold reply to this argument. Firstly, learned advocate on their behalf says that the suit of 1933 being a rent suit the question whether these two dags appertained to the holding or not was an issue which was not material for the purposes of determining the suit and that therefore it was not a matter which ought to have been raised as a ground of defence. Next he points out that even if it be held that this question must be deemed to have been constructively decided in the rent suit nevertheless the defendants can still raise this question as they and the plaintiffs are now litigating under a title different from their title in the rent suit. In the rent suit the plaintiff sued as landlord. In the present he sues not as landlord but as purchaser of the tenant's interest at a rent sale. Again in the rent suit the defendants were sued personally and not as shebaits. In the present suit they claim the land not for themselves but on behalf of the Thakur as shebaits.
5. I shall assume for the present that the parties in both suits are the same and deal with the question on that basis. A matter will be res judicata if it is actually heard and finally decided in a suit even though the decree is passed ex parte. No authority need now be cited for this proposition. In the present case however it is not suggested that the question whether the two plots formed part of the tenancy was actually heard and decided. Admittedly no issue was raised regarding this matter and the decree does not expressly decide it. The appellant relies on Section 11, Expl. 4, Civil P.C., and contends that the matter is res judicata because it has been constructively put in issue and decided. There are two approaches to the determination of the question whether a matter which has not been actually heard and decided should be deemed to have been heard and decided constructively. They are: (1) was the matter one which might and ought to have been made a ground of attack and (2) was the matter one which might and ought to have been made a ground of defence? Now, upon the facts of the present case, the first method of approach need not be considered. The respondents were defendants in the suit for rent and the question of their making this matter a ground of attack does not arise. What has to be considered is whether this matter is one which ought to have been made a ground of defence.
6. A matter constitutes a ground of defence only when it can be used for the purpose of resisting a claim. There must therefore be a claim and a matter must be such as would defeat the claim either wholly or in part. Now a bare assertion in a plaint is not a claim. An assertion becomes a claim when the plaintiff prays expressly or impliedly for the Court's decision upon it. Again, an assertion may become a claim if the defendant treats it as such by denying it and inviting the Court's decision thereon. Now the rent suit having been decreed ex parte it cannot be said that the defendants converted any assertion in the plaint into a claim by denying it. One must therefore look at the statements made in the plaint and decide whether the plaintiff made any claim therein which could be defeated in whole or in part by putting in issue the question whether these two plots formed part of the tenancy. Was the assertion in the plaint that the tenancy consisted of these two dags together with other dags a claim? Was it an assertion made for the purpose of getting the Court's decision therein? I have no hesitation or difficulty in saying that there was no such purpose behind that assertion. The land of the tenancy was described in order to comply with the procedural directions given in Section 148, Ben. Ten. Act. These directions are given not for the purpose of insisting that the plaintiff shall prove to the satisfaction of the Court the exact boundaries or area of the land of the tenancy but for the purpose of having sufficient materials placed before the Court to enable it to identify the tenancy. This is clear from the very words of the section. Sub-section (b) says that when the plaintiff cannot give the extent or boundaries of the land held by the tenant it will be sufficient if he gives in lieu thereof a description sufficient to identify the land. Once the tenancy is identified with some land the Court will grant a decree for rent provided it is proved that the defendants are the tenants and that rent is due from them. Even if the plaintiff fails to prove the exact extent of the land or its exact boundaries he will get a decree for rent if the other points are proved.
7. The main question for determination in a suit for rent is whether the relationship of landlord and tenant exists between the plaintiff and the defendants and whether any rent is due. It is not necessary for the Court to determine the number of dags of which the tenancy consists or the exact boundaries or extent of the land of the tenancy. Learned advocate for the appellants referred me to the case in Indu Bhusan Basu v. Jatindra Nath Roy ('28) 32 CWN 244 and contended that the decision in this case was that a plaintiff could not get a decree for rent unless he proved that the lands mentioned in the plaint formed the tenancy in suit. A portion of the headnote does, indeed, support this view but if the entire judgment be read in relation to the facts of the case it will be found that no such broad proposition was laid down. In this connexion I would repeat the observations of Lord Halsbury in Quinn v. Leathem (1901) AC 495 at p. 506
that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found.
8. In the case in Indu Bhusan Basu v. Jatindra Nath Roy ('28) 32 CWN 244, the plaintiff claimed to be the defendant's landlord in respect of 15 plots and sued him for the rent thereof. The defendants' case was that no one of these plots was any part of the tenancy held by him under the plaintiffs. He admitted that he held a jama under the plaintiff but said that it related to other lands. The Subordinate Judge of the lower Court on appeal came to the conclusion that there was no tenancy between the plaintiff and the defendant with respect to any one of these 15 plots and dismissed the suit. On second appeal to this Court, Cammiade J., held that it was entirely unnecessary to consider what the lands were so long as it was agreed that there was some tenancy at the rent claimed and decreed the suit. There was a Letters Patent appeal and in allowing the appeal Rankin C. J., after stating the above facts, said this:
It appears to me that unless every rent decree be definitely given in respect of a certain ascertained land the state of this province would get even more confused in the matter of agricultural right than it is at present. I do not know how decrees can be worked out by any other method. No doubt a mere incidental dispute about boundary has got nothing to do with a rent suit; but in this case the plaintiff says that he was the defendant's landlord in respect of 15 plots. The defendant's case was that no one of these 15 plots was any part of the tenancy.
9. It cannot be said that it was laid down in this case that a suit for rent must fail unless the plaintiff can prove that every plot of land which he states in his plaint as being included in the tenancy is actually included therein. What the case decides is that when a plaintiff alleges in a suit for rent that the defendant holds certain land as a tenant under him and the defendant succeeds in proving that no portion of that land is held by him as tenant of the plaintiff then the suit must fail even though the defendant holds some other land under the plaintiff as tenant. Reverting to the facts of the present case it seems quite clear to me that the plaintiff in the rent suit was not seeking, expressly or impliedly, a decision of the Court on the question whether the two dags in the present suit formed part of the tenancy. It was therefore quite unnecessary for the defendants to put that matter in issue in the rent suit. Further the claim for rent in the rent suit could not be defeated either wholly or in part by the defendants showing that these two dags did not appertain to the tenancy. Even if the defendants succeeded in showing this, there could still be a decree against them if the plaintiff succeeded in proving that rent was due for the tenancy, the tenancy being sufficiently identified by the description given in the plaint.
10. Learned advocate for the appellant relied on the case in 29 CWN 2533 as laying down a principle which would support the contention that this matter is one which might and ought to have been raised in the rent suit. I am unable to accept this view. The facts of that case were these. The plaintiff sued the defendants, claiming that they were joint tenants with respect to certain land. The suit was decided ex parte and a decree for rent was passed against all the defendants jointly. The plaintiff brought a subsequent suit against the same defendants on the same allegations. Some of the defendants set up a plea that they held portions of the land separately from the other defendants under the plaintiff and that there was no joint tenancy with respect to the land held by them. It was held that this defence was barred as the matter had become res judicata by reason of the decision in the previous suit. It was held that the question of a separate tenancy was one which might and ought to have been raised in the previous suit within the meaning of Expl. 4 of S.11, Civil P.C., inasmuch as if this question had been raised in the previous suit the plaintiff's claim for a joint decree against all the defendants would have been defeated. In laying down the tests which should be applied to the decision of this question this is what Suhrawardy J. says:
It is difficult to lay down hard and fast rules as to what questions should be regarded as questions that ought to have been raised in the previous suit. But there are several tests which have been applied from time to time when such questions have come up for decision. One of the tests is Whether by raising the question the decree which was passed in the previous suit could have been defeated, varied or in any way affected. If the question is of such a nature it must be deemed to be a question which ought to have been raised in the previous suit.
11. If this test is applied in determining the question which has arisen in this appeal then it must be held that the question whether the two plots appertain to the tenancy or not is not res judicata inasmuch as the decree for rent passed in the former rent suit could not have been 'defeated, varied and in any way affected' by inviting a decision on this point. The case in Shib Chandra Taluqdar v. Lakhi Priya Guha : AIR1925Cal427 does not help the appellant in any way.
12. I was also referred to the decision of the Privy Council in Fateh Singh v. Jagannath Baksh Singh . I do not think that the decision helps in any way in the determination of the point which is under discussion. The appellants next relied on the case in Sivadas Dutta v. Birendra Krishna ('26) 13 AIR 1926 Cal 672 where in a suit for rent it was held that the question of the rate of rent and area of the land of the tenancy was res judicata owing to a decree in a previous rent suit. In that case in the previous rent suit the area of the land of the tenancy and the rate of rent was actually put in issue and the decision of the Court was taken on these two points. It was held that in such circumstances the previous decision made the matter res judicata. The question of constructive res judicata was not at all involved in that case. As I have said before if the defendants in the present suit had invited the decision of the Court in the previous rent suit on the question whether the two plots appertained to the tenancy then they would have been bound by that decision and the matter would have become res judicata; but when no such decision was invited by any one and when a decision on the question was not necessary for the disposal of the suit, it cannot be said that the question has been decided by implication merely because a decree for rent has been passed in a suit in which the plaintiff in describing the tenancy in his plaint states that the two plots appertain to the tenancy. It will not serve any useful purpose to cumber the determination of this question by a reference to the large number of decisions relating to the question of what would be res judicata in a suit for rent. It will be sufficient to refer to one other case on the point which in my opinion furnishes a sure guide in the matter. I refer to the Full Bench decision of this Court in Modhusudun Shaha Mundul v. Brae ('89) 16 Cal 300. The point for decision related to the rate of rent and not to the land of the tenancy but the principle involved is the same. This is what has been said by the Full Bench:
It was argued before us that the statement in the plaint of an alleged rate of rent, in such a case, would not be an allegation so material that, in the absence of proof of it, the plaintiff could not obtain a decree, even although he were to show conclusively that the amount of rent claimed in the suit was actually due, on the footing of a different rate of rent from that mentioned in the plaint being the true rate.
We think this argument well founded. We think that, if at the hearing of such a suit, the plaintiff were to prove that the amount claimed by him as rent was actually due, although he did not establish the rate named by him in his plaint, he might nevertheless be entitled to a decree. That such a case might possibly arise is obvious. If it might, it follows that the statement of the rate of rent in the plaint is not necessarily an allegation so material that the determination of it in the affirmative is involved in the act of the Court in making a decree.
It follows from this that, in our opinion, the mere statement of an alleged rate of rent in the plaint in a rent suit in which an ex parte decree is made, is not a statement as to which it must be held that an issue within the meaning of Section 13, Civil P.C., was raised between the parties so that the defendant is concluded upon it by such decree.
13. For the reasons stated above I hold that the question whether the two plots appertain to the tenancy or not is not res judicata. There remains the other ground urged on behalf of the respondents, viz., that the question cannot be res judicata as the plaintiff and the defendants in the present suit are litigating under the different titles from their title in the rent suit. This contention does not appear to be sound. I shall first consider whether the plaintiff in these two suits is litigating under different titles. There can be no question that the plaintiff is the same in both suits. In the rent suit he sued as landlord for rent. In this suit he is suing as the owner of the land for ejectment against alleged trespassers. In both these cases he is suing in the same capacity, viz., his individual capacity as owner of the land. In both cases he is suing in his own interest. It is not a case of a person bringing a suit in his individual capacity and then bringing another suit as representing the interests of others. The expression 'title' in S.11, Civil P.C., does not refer to the cause of action on which the suit is brought but it refers to the interest or capacity of the party suing or being sued. If the plaintiff in both suits is suing in his individual 'capacity and in his own interest then he is litigating under the same title. It must be held therefore that the plaintiff is litigating under the same title in both suits. The position with respect to the defendants is the same. They are sued in both suits in their individual capacity. It is true that in this suit the defendants assert that they are in possession as shebaits of the deity who they assert is the real owner, but they are not being sued as shebaits. They are sued in their individual capacity and they virtually are pleading jus tertii. This does not convert the suit which is against them personally into a suit against the shebaits. The suit remains a suit against the defendants personally. Thus the defendants in both suits are being sued in the same capacity. It cannot therefore be said that they are litigating under different titles. The defence taken, however, is not res judicata for the other reasons given by me. That being so the decision of the Court below must be uphold and this appeal must be dismissed with costs.