Tottenham and Ghose, JJ.
1. This appeal is by the defendant in the original suit; and the suit was to eject him from land claimed by the plaintiffs, who were the ticcadars, as majhes land, by which we understand land ordinarily cultivated by the landlord himself or by the ticcadar. The defendant pleaded that he had a right of occupancy in this land as a raiyat, and could not be turned out of it.
2. The Courts below have both held that this matter is res judicata, and the defendant is no longer entitled to be heard in respect of it, upon the ground that in a previous suit brought by the plaintiffs to eject the defendant, the same objection was taken, and the Munsif decided it in favour of the plaintiffs, but dismissed the plaintiffs' suit because they had not given the defendant a proper notice to quit. The Courts below held that the finding on this point in that suit was a bar to its being raised and tried in the present suit: and the Courts relied upon the Full Bench decision of this Court in the case of Niamut Khan v. Phadu Buldia I.L.R. 6 Cal. 319.
3. No doubt that decision is directly in favour of the Lower Court's decision; but we observe that decision has not been followed in this Court, and the Privy Council in a more recent case have expressed an opinion which is in opposition to the judgment of the Full Bench. The case of Run Bahadur Singh v. Lucho Koer I.L.R. 11 Cal. 301 was brought to the notice of the Lower Appellate Court, but that Court thought it was not an authority in the present case, because the decree in that case did not turn upon the particular opinion expressed and on which reliance was put by the defendants' pleaders. In that case before their Lordships of the Privy Council the appellant had appealed against the decree of the High Court. The respondent preferred a cross-appeal against certain findings recorded in the judgment of the High Court. Their Lordships observed: 'It was unnecessary for her to do so, inasmuch as those findings could not be subsequently held to be conclusive against her, because the decree of the Court below was not based upon any such finding, but in spite of it.' This observation applies to the present case. The decree by which the plaintiff's suit was dismissed on the previous occasion was made in spite of the finding in their favour that the land in question was majhes land; and in the case Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee I.L.R. 13 Cal. 17 a Division Bench relying upon this observation of the Privy Council in the case of Run Bahadur Singh v. Lucho Koer I.L.R. 11 Cal. 301 held that the findings of the Lower Court in favour of the party appealing were not to be used as res judicata in a subsequent suit.
4. In the present case the respondent's vakil relies upon the terms of Section 13 of the Code, the law regarding res judicata; and points out that courts are prohibited from trying any issue between the parties which has been heard and finally decided by such courts in a former suit.
5. It appears to us that the last element is wanting, namely, 'finally decided.' We think that the finding of the Court in the previous suit was not final, inasmuch as the decree was not based upon it, and there could be no appeal against it, because the decree was in favour of the party against whom the finding was recorded.
6. Upon the whole we think that the appellant is entitled to have the same question tried which he raised in this suit. We accordingly set aside the decrees of the Courts below, and send this case back to be tried upon the merits.
7. Costs of this appeal will abide the result.