1. 'This appeal arises out of a suit brought by the plaintiff, respondent, for possession of a one-third share of a plot of land measuring 21 bighas, on the allegation that the said land appertained to resumed estate No. 9870 of the Dacca Collectorate, which belonged originally to the proforma defendants; that defendant No. 4 was in possession of two-thirds share of the same, having purchased it at a sale in execution of a decree; that the plaintiff purchased the remaining one-third share thereof from the proforma defendants after they and their predecessors had held possession of the same for upwards of twelve years; and that the plaintiff bad been unjustly kept out of possession of the land in dispute by the principal defendants since 1891.
2. 'The principal defendants in their defence urged that the suit was barred by limitation; that the suit was also barred under Sections 13 and 43 of the Code of Civil Procedure; that the land in dispute originally belonged to one Mr. Panioty, who held it for upwards of a hundred years; that by successive transfers the land came to the hands of the defendants; and that defendant No. 4, with the object of ousting the defendants from the same, instituted several suits against them; but being unsuccessful now caused the plaintiff to bring this suit. The defendant No. 4 supported the plaintiff.
3. 'The first Court found after a local investigation by an Amin that 8 bighas and odd cottahs of the disputed land appertained to the plaintiff's estate, but it dismissed the suit altogether on the ground of limitation.
4. 'Against the decision of the first Court the plaintiff preferred an appeal, and the principal defendants put in a cross-appeal, urging that the Munsif had improperly refused to admit certain judgments in evidence. The Lower Appellate Court has decreed the appeal of the plaintiff and dismissed the defendant's cross-appeal.
5. 'In second appeal it is contended for the defendants, first, that the Court of Appeal below was wrong in holding that the judgments tendered in evidence by the defendants were inadmissible; and, secondly, that the decree in favour of the plaintiff should in any case have been limited to a one-third share of 8 bighas and odd cottahs only.
6. 'The second point need not detain us long, as the learned Vakil for the respondents concedes that the decree ought to be limited in the manner contended for on behalf of the appellants.
7. 'The first point, however, involves a question which is not altogether free from difficulty.
8. 'If the cases of Gujju Lall v. Fatteh Lall (1880) I.L.R. 6 Cal. 171 and Surendra Nath Pal Chowdhry v. Brojo Nath Pal Chowdhry (1886) I.L.R. 13 Cal. 352 upon the authority of which the Lower Appellate Court, has held the judgments tendered in evidence for the defendants to be inadmissible, are good law, the first ground urged before us must fail. But if those eases have in effect been overruled by the decisions of the Privy Council in Ram Rajan Chakerbati v. Ram Narain Singh (1894) I.L.R. 22 Cal. 533: L.R. 221. A. 60 and Bitto Kunwar v. Kesho Pershad (1887) L. R. 24 I. A. 10 then, the question arises whether the judgments referred to are admissible in evidence.
9. 'In the two cases relied upon by the Lower Appellate Court, namely, Gujju Lall v. Fatteh Lall (1880) I.L.R. 6 Cal. 171 and Surender Nath v. Brojo (1886) I.L.R. 13 Cal. 352 it was held by this Court that a former judgment, which is not a judgment in rem nor one relating to matters of a public nature, is not admissible in evidence m a subsequent suit either as res judicata or as proof of the particular point decided, unless between the same parties or those claiming under them. But in the case of Ram Ranjan Chakerbati v. Ram Narain Singh (1894) I.L.R. 22 Cal. 533: L.R. 22 I.A. 60 it was held by the Privy Council that a judgment passed in a suit to which the plaintiff was no party, was admissible against the plaintiff as evidence showing the rent paid; and in Bitto Kunwar v. Kesho Pershad (1887) L. R. 24 I. A. 10 their Lordships of the Privy Council, speaking of the judgment in a former suit against one of the defendants, Bacha Tewari, observe: 'This decision is not conclusive against Bacha Tewari as the suit was not between the same parties as the present suit, but their Lordships agree with the Subordinate Judge that it was admissible as evidence against him.' These two decisions of the Privy Council must be taken to have in effect overruled the cases relied upon by the Lower Appellate Court. That being so the question arises whether, apart from those cases, the judgments referred to in the argument were admissible in evidence against the plaintiff, respondent.
10. 'Now the provisions of the Indian Evidence Act expressly relating to judgments are Sections 40 to 44. The judgments which are said to have been improperly rejected in this case not being evidence of any of the descriptions referred to in Sections 40, 41 and 42, and they not having been excluded on any of the grounds mentioned in Section 44, it is not necessary to dwell upon the provisions of those sections. The question we have to consider is, whether the judgments, which have been held to be inadmissible by the Courts below, are really admissible under Section 43 of the Evidence Act, which enacts that 'judgments, orders or decrees other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provision of this Act.'
11. 'I am inclined to think that this question ought to be answered in the affirmative, and that the existence of the judgments under consideration, or at any rate the existence of one of them, is relevant under Sections 11 and 13 of the Evidence Act.
12. 'The judgments that were tendered in evidence and rejected as inadmissible by the Courts below are three in number, being (as I gather from the judgment of the Lower Appellate Court and from paragraph 10 of the written statement of defendants No. 1---3, (1) the judgment in suit No. 742 of 1887 brought by the present defendant No. 4, Protab Chunder Das, co-sharer of the plaintiff, against the present defendants for possession of two-thirds share of the land now in dispute; (2) the judgment in suit No. 165 of 1892 brought by the said Protab Chunder Das against the said defendants; (3) the judgment in suit No. 1219 of 1886 brought by one Emdad Ali against the present defendants. Though the relevancy of the last two may not be quite clear, the existence of the first-mentioned judgment seems to be a relevant fact, as well under Section 11 of the Evidence Act, as under Section 13. This may be seen from the following considerations.
13. 'First as to the relevancy of the judgment in suit No. 742 of 1887 under Section 11. The existence of the judgment, that is, the circumstance that that particular judgment was passed, is clearly a fact within the meaning assigned to the term in Section 3. Now the existence of the judgment (which will be established by the judgment being filed) shows that a suit had been brought by plaintiff's co-sharer Protab Chunder so far back as 1887 against the principal defendants for possession of his two-thirds share of the disputed land, and that suit was dismissed. The plaintiff's case now is that the said Protab Chunder was in possession of the two-thirds share in dispute, while he and his vendor were in possession of the remaining one-third share down to a period within twelve years before the institution of the present suit. And the existence of the above-mentioned adverse judgment taken in connection with the other facts of the case might, if the judgment had been admitted in evidence by the Court below, have been found to make the non-existence of the plaintiff's possession and the existence of the defendants' possession highly probable within the meaning of Section 11 of the Evidence Act. I cannot say it would have that effect, because, sitting here in second appeal, it is not open to us to enter into questions of fact. But I do say that it might have that effect, and if it might, a substantial error in the procedure consisting in the improper rejection of evidence is made out which may possibly have produced error in the decision of the case upon the merits within the meaning of Section 584, Clause (c) of the Code of Civil Procedure.
14. 'Next as to the relevancy of the judgment in suit No. 742 of 1887 under Section 13. Lf the existence of the judgment is not a transaction within the meaning of Clause (a) of Section 13, it proves that a litigation terminating in the judgment took place; and the litigation comes well within the meaning of the clause as being a transaction by which the right now claimed by the defendants was asserted. So again the litigation which is evidenced by the existence of the judgment was a particular instance within the meaning of Clause (b) of Section 13, in which the right of possession now claimed by the defendants was claimed. It has been said that the right spoken of in this section is an incorporeal right. I do not think that there is any sufficient reason for putting this limitation on the meaning of the term as used in the section. The judgment, therefore, is in my opinion relevant under Section 13.
15. 'If such judgments were not relevant under either of the two Sections 11 and 13, they could not be admissible in evidence, as the Privy Council have held them to be in the two eases referred to above.
16. 'The strongest argument against the admissibility of such judgments in evidence is, to use the language of a well-known writer on the Law of Evidence (see Taylor on Evidence, 9th edition, Section 1682) 'That no man ought to be bound by proceedings to which he was a stranger and over the conduct of which he could, therefore, have exercised no control.' But in the first place, the judgments in question are sought to be used, not as binding and conclusive evidence, but only as evidence for what they are worth, the weight to be attached to the evidence being left to the Court to determine. And in the second place, the reason stated above, though it is a good reason for excluding from consideration as against a stranger, the evidence afforded by a judgment, so far as it is the opinion of a Court upon materials in the placing of which before the Court the stranger could have had no control, does not appear to hold equally good where what is sought to be taken into consideration is the evidence afforded by the existence of the judgment as to a litigation relating to the right in question and the way in which that litigation terminated. For such collateral purposes, judgments are admissible in evidence against strangers under the English Law. See Davies v. Lowndes (1843) 6 M. & G. 471 (520). It is true that their Lordships of the Privy Council in the two cases referred to above while overruling in effect the decision of this Court in Gujju Lal v. Fatteh Lal (1880) I.L.R. 6 Cal. 171 and Surendro Nath v. Brojo Nath (1886) I.L.R. 13 Cal. 352 do not refer to any section of the Evidence Act. But I may add that the view I take is supported to some extent by the cases of Hira Lal Pal v. A. Hills (1882) 11 C. L. R. 528; Venhata Sami v. Venkatreddi (1891) I.L.R. 15 Mad. 12; and the Collector of Goruckhpur v. Palakdhari Singh (1889) I.L.R. 12 All. 1. It has sometimes been said see Ranchhod Dais v. Bapu Narhar (1888) I.L.R. 10 Bom. 439 that if the Legislature in this country had intended to make judgments admissible in evidence against strangers, as it was an important departure from the English Law, the intention would have been expressed, not indirectly by the provisions embodied in Sections 11 and 13, but directly by some express provision in that part of the Evidence Act which relates to judgments. I think the answer to this remark is furnished by Section 43, which is one of the group of sections relating to judgments, and which contains the provision applicable to cases like the one before us, relating to the relevancy of judgments as evidence against strangers.
17. 'For these reasons I think the judgment in Suit No. 742 of 1887 ought to have been admitted in evidence. But as the point raised is not altogether free from doubt and difficulty, and is one of frequent occurrence and of great importance, I agree with the learned Chief Justice in thinking that the case should be referred to a Full Bench, the main question for determination being whether the judgments referred to above to which the plaintiff-respondent was no party are admissible in evidence against him under Sections 11 and 13 of the Evidence Act, or under any other provision of law.
18. I concur in thinking, as the point often arises and is of great importance, that this case should be referred to a Full Bench, but I reserve my opinion upon the point submitted for decision.
19. Babu Hari Mohun Chuckerbutty for the Appellants.
20. Babu Lal Mohan Dass for the Respondents.
21. The following opinions were delivered by the Full Bench Maclean, C.J., and Macpherson, Trevelyan, Banerjee and Jenkins, JJ.
22. Although I was a party to this reference, I am net quite satisfied, after the discussion which we have heard to-day, that the question submitted in its broader aspect really arises. In my opinion, the judgments in question are not admissible in evidence in this suit, because now that the matter has been fully laid before us, it appears that the subject-matter of the present suit is not identical with the subject-matter in the previous suits, in which those judgments were delivered. In the previous suit the subject matter was to recover a two-thirds share of the property in question, but in the present case it is a suit by a different plaintiff to recover the remaining one-third share. The subject-matter, therefore, of the two suits is not identical; the title to the one-third share may be, and apparently is, different from that of the other shares. In this view the judgments which were sought to be admitted as evidence in this case were irrelevant, and, therefore, not admissible as evidence. This point, so far as I recollect, I am speaking only from memory, was not very clearly brought to the attention of Mr. Justice Banerjee and myself on the previous occasion, and if it had been, we might possibly have thought that this reference was not necessary. But as the two cases decided by the Full Bench in this Court, the case of Gujju Lall v. Fatteh Lall (1880) I.L.R. 6 Cal. 171 and a later case of Surender Nath Pal Chowdhry v. Brojo Nath Pal Chowdhry (1886) I.L.R. 13 Cal. 352 have been referred to, I feel bound to express my opinion that, having regard to the recent observations of the Privy Council in the case of Ram Ranjan Chakerbati v. Ram Narain Singh (1894) I.L.R. 22 Cal. 533: L. R. 22 I. A. 60 and in the more recent case of Bitto Kunwar v. Kesho Parshad (1897) L.R. 24 I. A. 10 the Full Bench decisions referred to must be regarded as materially qualified, because it is clear from the decisions in the Privy Council that under certain circumstances, and in certain cases, the judgment in a previous suit, to which one of the parties in the subsequent suit was not a party, may be admissible in evidence for certain purposes and with certain objects in the subsequent suit.
23. The decree in the present suit in favour of the plaintiff must be limited to a one-third share of 8 bighas and odd cottahs only; subject to the decree being varied to that extent the appeal fails, and must be dismissed with costs, including the costs of this reference.
24. I agree in the view expressed by the learned Chief Justice.
25. I also agree.
26. I agree with the learned Chief Justice in holding that the rule laid down in the cases of Gujjn Lall v. Fatteh Lall (1880) I.L.R. 6 Cal. 171 and Surender Nath Pal Chowdhry v. Brojo Nath Pal Chowdhry (1886) I.L.R. 13 Cal. 352 must be taken to have been materially qualified by the decisions in the Privy Council in the cases of Ram Ranjan Chakerbati v. Ram Narain Singh (1894) I.L.R. 22 Cal. 533 and Bitto Kunwar v. Kesho Pershad (1897) L. R. 24 I. A. 10. Upon the question whether the judgment mentioned in the referring order is admissible or not, I feel bound to say that I am not quite satisfied that the mere fact of the subject-matter of the present suit being a one-third share in the property in dispute, whereas the subject-matter of the previous suit was the remaining two-thirds of the same property, would make any real difference in the case, having regard to the nature of the case made by the parties to the suit. For the reasons given by me in the referring order, I still have my doubts as to whether the Lower Appellate Court was right in excluding that judgment altogether. But I must add that my doubts on the point are not so strong as to justify my expressing myself in the language of positive dissent.
27. I agree with the learned Chief Justice.