1. This is an appeal by the plaintiff in a suit to recover possession of 33 bighas odd of land in Mouzah Nathur Kona as appertaining to taluk Sarapdi Khan. The plaintiff is the owner of 5 annas 6 gundas 2 karas 2 krants share in the taluk, and seeks to recover possession of that share in the 33 bighas odd. In 1885 Brojo Mohun Biswas, father of Nobin Chunder Biswas, was the owner of taluk Anandiram Biswas and of certain shares in taluk Sarapdi Khan. On the 2nd of Bhadro 1292, corresponding to the 17th of August 1885, Brojo Mohun Biswas mortgaged taluk Anandiram Biswas and another property to the ancestors of the defendants. More than two years biter the mortgage, that is in December 1887, Ram Sankar Bhaduri, who is one of the co-sharers in taluk Sarapdi Khan, brought a suit for partition of that taluk against the present plaintiff, and Nobin Chunder Biswas, who at that time was the owner of 6 annas 13 gundas 1 kara 1 krant share of that taluk and also against the owner of the remaining share. The decree in that suit was made on the 29th of June 1895. During the pendency of this partition suit, that is, in January 1890, the ancestors of the present defendants, that is the mortgagees, instituted a suit upon their mortgage and obtained a decree on the 24th February 1890. In execution of that decree taluk Anandiram Biswas was sold and purchased by the mortgagees on the 21st of January 1892. Under the partition decree, the disputed lands fell to the share of the plaintiff in lieu of his undivided one-third share in taluk Sarapdi Khan. The plaintiff alleges that he was in exclusive possession of the disputed lands after the decree made in the partition suit, that the defendants under their purchase at the auction-sale in 1892 obtained collusive rent decree against the tenants on the land and thereby dispossessed him and he, therefore, brings the present suit for possession of the lands in dispute.
2. The Courts below have held that the defendants, who were prior mortgagees, not being parties to the partition suit, are not bound by the decree made in that suit, and, further, that the plaintiff has failed to prove that the disputed lands appertain to taluk Sarapdi Khan. Upon these findings the Courts below have dismissed the plaintiff's suit.
3. The plaintiff filed in the Court of first instance a judgment and a decree of the year 1860 obtained by the ancestor of the present plaintiff against Brojo Mohun Biswas, under which, it is urged on behalf of the plaintiff, his ancestor obtained a decree for possession of 5 annas 6 gundas 2 karas and 2 krants share of the entire Mouzah Nathur Kona with other lands as appertaining to taluk Sarapdi Khan. This judgment and decree were apparently not relied upon before the Munsif, because no mention of these documents is to be found in his judgment. But they were strongly relied upon before the learned Subordinate Judge, and, he seems to have been of the opinion that, though the decree of 1860 showed that the entire Mouzah Nathur Kona belonged to taluk Sarapdi Khan its effect was considerably impaired, if not wholly destroyed, by the findings in the judgment in the partition suit of 1895.
4. The plaintiff has appealed, and, on his behalf, insistent reliance has been placed upon the judgment and decree of 1860. What the effect of that decree is upon the present suit It shall deal with later.
5. I agree in the view taken by the Courts below that the judgment and decree in the partition suit of 1887 are not binding upon the defendants. See Dooma Sahoo v. Joonarain Lall 12 W.R. 362; Bonomalee Nag v. Koylash Chunder Dey 4 C. 692; Sita Ram v. Amir Begam 8 A. 324; Soshi Bhusan Guha v. Gogan Chunder Saha 22 C.364. The same view has been taken by the Supreme Court of the United States in Keokuk and Western Rail Road Company v. Missouri 152 United States Supreme Court Rep. 301; by the Federal Courts see Colmbia Avenue Savings Fund & Co. v. Dawson 130 Fed. Rep. 152; Bancroft v. Wicomico Country Commissioners 121 Fed. Rep. 874; Southern Bank & Co. V. Folsom 75 Fed. Rep 929 and see also Van Fleet's Former Adjudication, Vol. II, p. 1078; and also by the Supreme Courts of most of the States; see Cyclopedia of Law and Procedure, Vol. 23, p. 1268 (where most of the cases are collected). Though Mr. Justice Markby in his judgment in the case of Bonomalee Nag v. Koylash Chunder Dey 4 C. 692 laid down the law with some decree of hesitancy, the essential reasons upon which that rule is based have subsequently been fully expounded in the luminous judgment of Mr. Justice Mahmood in the case of Sita Ram v. Amir Begum 8 A. 324; and, if this view has, as I have indicated, been accepted by most of the Supreme Courts in America and also in the unanimous judgment of the Supreme Court of the United States, there can scarcely be room for doubt as to the soundness of the rule.
6. The rule of law that a puisne mortgagee is not bound by a judgment and decree obtained by a prior mortgagee against his mortgagor upon his mortgage, to which the puisne mortgagee is not a party, and that the amount, if any, due upon the prior mortgage must be proved afresh in his presence see Umesh Chunder Sircar v. Zahur Fatima 17 I.A. 201; 18 C. 164 Debendra Narain Roy v. Ramtaran Banerjee 30 C. 599 (P.C.);7 C.W.M. 766 is merely another illustration of the same doctrine; similar instances are to be found in other legal relations, as for instance between grantor and grantee, assignor and assignee, lessor and lessee (herein with some apparent qualifications) and so forth. These rules are merely particular applications of a higher and more universal principle that a judgment can only bind the quantum of interest (in the subject-matter) represented in the suit and adjudicated upon thereby. The case of Hindu widow and reversioner or that of successive shebaits, proves no real exception to this principle. The binding character of the judgment in such poises depends on the quantum of interest (in the subject-matter) represented in the suit and this quantum varies according to the nature of the suit or the character of the transaction adjudicated upon.
7. It has, however, been urged on behalf of the appellant that the case of Dooma Sahoo v. Joonarain Lall 12 W.R. 362; Bonomalee Nag v. Koylash Chunder Dey 4 C. 692 and Soshi Bhusan Guha v. Gogan Chunder Saha 22 C.364 ought to be reconsidered in the light of the decision of the Privy Council in the case of Byjnath Lall v. Ramoodeen Chowdhry 1 I.A. 106; 21 W.R. 233 and the judgment of this Court in Hem Chunder Ghose v. Thako Moni Debi 20 C. 533. In the first mentioned case, the Privy Council held that in the absence of fraud or collusion' a mortgagee of an undivided share of land is bound by a partition held by the Revenue authorities and can only enforce his mortgage against such lands as have been allotted to his mortgagor in severally at the partition. In the last mentioned case, the same principle was extended to a partition by the Civil Court. The grounds upon which this principle is based are stated by their Lordships of the Judicial Committee in the following passage a page 119 of Law Reports 1 Indian Appeals: 'It is, therefore, clear that the mortgagor had power to pledge his own undivided share in these villages; but it is also clear that he could not, by so doing, affect the interest of the, other sharers in them, and that the persons who took the security took it subject to the right of those sharers to enforce a partition, and thereby to convert what was an undivided share of the whole into a defined portion held in severalty.' In other words, the fundamental reason is that the persons who took the security took it subject to the rights of those sharers to enforce a partition.
8. Now, does this reason apply to the case of a judgment between the mortgagor and a third person after the mortgage? Of course, if the defendants' ancestors had taken a mortgage of some share in taluk Sarapdi and had not been made a party to the subsequent suit for partition of that taluk, they would, under these decisions, have been bound by this partition, unless there was fraud or collusion between the parties to the partition suit, and would have been entitled to enforce their mortgage against such lands only as had been allotted to their mortgagor on partition. But that is not the case here. The defendants claimed the disputed lands as part and parcel of taluk Anandiram Biswas, which taluk admittedly did not form subject-matter of partition. The real point in controversy between the parties is whether the disputed lands form part and parcel of taluk Sarapdi Khan or of taluk Anandiram Biswas. If the plaintiff in the partition suit and his co-sharers had before the suit for partition brought a suit against Nobin Chundra Biswas for a declaration that the disputed lands appertained to taluk Sarapdi Khan and not to taluk Anandiram Biswas, which was owned by Nobin, and if in that suit judgment had been passed in favour of the plaintiff declaring the lands as forming part of taluk Sarapdi Khan, such judgment would not, according to the authorities I have mentioned, have been binding upon the defendants, who ex hypothesi were no parties to such a suit. And, if after such judgment, a suit for partition of taluk Sarapdi Khan had been brought upon the basis of this declaration, the decree in the partition suit would have been, as ineffectual against the defendants as the judgment in the suit for the declaration, because the decree in the partition suit, in so far as it includes in the partition the lands in question proceeds upon the basis of the declaration in the previous suit. The decree for partition under consideration may be regarded as a decree in a suit compounded of these two suits; and, the finding in the judgment that the lands in question form part of taluk Sarapdi Khan may be considered as a declaration previously made in an independent suit. When the defendant took a mortgage of taluk Anandiram Biswas from Nobin, they could not be said to have taken the security subject the right of any co-sharers to enforce a partition, because admittedly in taluk Anandiram there were no co-sharers. There were co-sharers in taluk Sarapdi Khan, but the defendants' ancestors did not take a mortgage of taluk Sarapdi Khan. It seems to me, therefore, that the reasons which underlie the decision of the Privy Council in Byjnath Lall v. Ramoodeen Chowdhry 1 I.A. 106; 21 W.R. 233 and Hem Chunder Ghose v. Thako Mont Debt 20 C. 533 cannot affect the grounds of the decision in the cases of Dooma Sahoo v. Joonarain Lall 12 W.R. 362; Bonomalee Nag v. Koylash Chunder Dey 4 C. 692; Soshi Bhusan Guha v. Gogan Chunder Saha 22 C.364 and Sita Ram v. Amir Begum 8 A. 324 or the ground of the decision in the present case. I am of opinion, therefore, that the defendants are not bound by the partition decree of 1895.
9. One of the reasons assigned by the learned Subordinate Judge for his view that the partition decree is not binding upon the defendants is that the respondents, that is, the defendants, had purchased Nobin's right in Nathur Kona as appertaining to both taluk Sarapdi Khan, and taluk Anandiram in 1892, and that, therefore, Nobin had ceased to have any interest in the property partition, before the partition decree was made. This is evidently a mistake, because admittedly the defendants purchased taluk Anandiram only. They did not purchase taluk Sarapdi Khan.
10. Both the Courts below have found that, since December 1892, the defendants have been in possession of the disputed lands. The present suit was brought on the 4th of October 1904. Therefore, the possession by the defendants is within twelve years of the present suit.
11. I have now to consider the effect of the judgment and decree of 1860 to which I have already adverted. The learned Subordinate Judge, as I have said, is of opinion that the decree shows that the entire Mouzah Nathur Kona, was the subject-matter of the suit, but that its effect was nullified by the findings in the judgment in the partition suit. I do not think this is a sound reason; for, if the judgment and decree in the partition suit are not, as I have already pointed out, binding upon the defendants, they cannot be permitted to take advantage of any findings in that judgment: for, an estoppel must be mutual. See the observations of the Privy Council in Grija Kant Lahory Chowdhry v. Hurish Chandra Chowdhury 19 W.R. 114 at p. 117 and Keskuk and Western Rail Road Company v. Scotland Country (1893) 152 Utd. States Supreme Court Rep. 318. I must, therefore, consider the probative effect of the decree of 1860, or rather the summary of the claim stated in that decree, independently of, and as unaffected by the finding in the judgment in the partition suit. The judgment in the suit in which that decree was made shows that the main question between the parties was as to the extent of the share to which the plaintiff in that suit was entitled. There was no question raised as to whether the plaintiff had claimed lands of any other taluk except taluk Sarapdi Khan. No doubt, in the summary of the claim stated in the decree, the claim is for a certain share of Mouzah Nathur Kona and other lands as appertaining to taluk Sarapdi Khan, but it is, in my opinion, not safe to rely upon such a statement in the absence of the pleadings in that suit. The question in the present case is whether the lands in dispute formed parcel of taluk Sarapdi Khan. I do not think that from this statement alone any positive inference can be drawn that the lands in dispute did really form part of the claim in the suit of 1860.
12. Both the Courts below have, as I have said, held that the defendants have been in possession since December 1892: but it seems to me that the cardinal issue which ought to be tried for the purpose of determining whether the lands in dispute formed parcel of taluk Sarapdi Khan or of taluk Anandiram has not been tried, and that issue is, who in 1892, that is at the time when the defendants obtained possession under their purchase, and theretofore, was in possession of the disputed lands. The plaintiff is admittedly the owner of 5 annas 6 gundas 2 karas and 2 krants share. If the disputed lands formed part of the taluk Sarapdi Khan, one would naturally expect that the plaintiff would be in possession of a one-third share of the lands in dispute as forming part of taluk Sarapdi Khan. If he was in possession of the lands in suit in 1892, then that possession would have a twofold consequence. It would show, in the first place, that the plaintiff was in possession within twelve years of the present suit, which, undoubtedly, he must prove in order to be able to succeed in the case; and, in the second place, it would raise an inference that the decree in 1860 probably included the lands in dispute, for he could not have obtained possession except under the decree. Thirty-two years intervened between the date of that decree and the date when the defendants obtained possession. It is, therefore, all important to enquire who during that period was in possession of the disputed lands. If the plaintiff or his ancestor was in possession of the disputed lands as appertaining to taluk Sarapdi Khan, then he ought to be able to adduce conclusive evidence in proof of that fact. To my mind, it is the most essential question to be tried in this case before, any satisfactory solution can be obtained. I must, therefore, remand this case to the lower appellate Court for a finding upon this issue. The appeal will remain on the file of this Court, and the question of costs will be decided at the ultimate hearing.