1. This is an appeal from a decision of the Special Land Acquisition Judge on a reference from the Collector. The reference has not been printed and we do not really know what it was. This omission and the extraordinary manner in which the documents of the contesting parties have been intermingled in the paper book and statements vitiated by the omission of negatives in printing have caused us much difficulty in disposing of the appeal, a difficulty which has not been rendered lighter by the order in which the learned Counsel elected to argue the appeal. Among the points that arise in the appeal are a question of res judicata and one of adverse possession. The first, which is a bar at the outset, was not argued until the whole record had been placed before us and the appeal argued on the question of title. The second which is the only point in the case that has any real substance in it, was not brought forward till the very end of the argument on the second day.
2. The question in dispute appears to be a claim to one and a half cottahs of land in Sealdah by two rival claimants, of whom the appellant is claimant No. 1. The learned Judge has found that the title is and has been all along with claimant No. 2, the respondent Jnan Chandra Pal. He has incidentally found that no question of adverse possession arises as the land was lying waste. He, therefore, decided, that Jnan Chandra Pal, claimant No. 2, was entitled to retain the compensation money for the acquisition of 14 cottahs 5 gundas 2 cowries and 6 dams of the plots in dispute, while his co-sharer in title not having made any claim to the balance the Collector's award giving it to claimant No. 1 would be undisturbed. Against this claimant No. 1 has appealed and his learned Counsel has formulated two questions for our consideration in the first instance. The first is that the appellant will be able to show that Manik Lal Dhar has no title and that he was never in possession and the second point is that the appellant was in possession both by adverse possession and by purchase. The agreement addressed to us was chiefly on the question of title, and we are, after going through all the documents and facts set before us, able to agree with the learned Judge in the Court below that there can be no doubt as to the title of Manik Lal Dhar to the land in dispute and as to the fact that this title had passed to Jnan Chandra Pal by foreclosure of a mortgage of the land made by Manik Lal of his whole holding of some two bighas odd in Survey No. 123.
3. Against this in the last resort two curious objections have been taken by the learned Counsel, first, that the title to the whole strip of No. 123 south of the tank and its extension up to the canal road having been agitated before Mr. Roe in a suit between the parties in 1909 about another plot (c) that appears to be in No. 124 and not in No. 123 at all, the finding of Mr. Roe that the southern boundary of Manik Lal's holding excluded the whole strip between the tank, with pacca wall to the east and to the north the burial ground and mosque to the south, would operate as res judicata inasmuch as the plot now in dispute was included in that strip. The point of law was formulated by reference to the principle that the matter directly and substantially in issue and not the subject-matter of the suit constitutes the test of res judicata and the case of Sitanath Midda v. Basudeb Midda 2 C.L.J. 540 was relied on. But this could only be argued by begging the question, what is the matter directly and substantially in issue, and this has been laid down in numerous decisions of their Lordships of the Judicial Committee to depend on whether the parties to the suit and the Court have dealt with the matter as if there was a relief claimed in respect of that matter also, that is to say, though the matter was in the first instance brought in issue as ancillary or incidental to the matter in respect of which the relief is claimed it is dealt with and decided as if it formed a direct and principal issue in the suit. We have not got the plaint and written statement in that case. Nor does the question appear to have been raised in the lower Court, but from the issues framed and the judgment it is clear that the incidental finding as to the boundary was not (on sic) a question directly and substantially in issue, and furthermore as far as the facts are concerned it is still open to us to come to a finding upon them. The finding as to the boundaries was based upon an erroneous view of the partition proceedings in 1901 which were not inter partes and upon a further erroneous view of the relation of Jnan Chandra Pal in the case as representing the estate of Manik Lal Dhar. He can in no sense be said to hold the land from Manik Lal Dhar. There is, therefore, no possible ground for applying the doctrine of res judicata.
4. The second point was that by partition Manik Lal Dhar, the mortgagor, substituted other security for the original security, which included the strip of land of which the plot in dispute forms a part, and omitting this strip altogether partitioned two blocks of the tank which formed part of Nos. 124 and 28 and were not in his estate at all. The case of Hakim Lal v. Ram Lal 6 C.L.J. 46 was cited for the proposition that a mortgagee is bound by a substituted security. Of course this ruling to which one of us was a party has no bearing on the case of a change in the corpus of the estate; and the substitution shown in the partition proceedings between Manik Lal Dhar and his minor co-sharer in 1901 is, as was found by Mr. Beachcroft in 1907, very suspicious and undoubtedly done in collusion with the owners of Nos. 28 and 124 who were claimant No. 1's vendors. It is perfectly clear that until 1901 the title to the whole of No. 123 was vested in Manik Lal Dhar; and Jnan Chandra Pal having never been a party to any of Manik Lal Dhar's dealings with the appellant's vendor or to the partition proceedings his title was never affected. In this view of the case the question of adverse possession does not really arise. The claim of the respondent was made in 1912 and there is no evidence of any possession by the predecessors of appellant prior to 1901.
5. We may briefly glance at the oral evidence given by the appellant. The municipal clerk of the Assessment Department shows, as the learned Judge has found, that Abdul Kadir never asserted any claim to Municipal premises No. 33 in which the land in dispute is situated until the year 1906. Before that Jnan Chandra Pal alone had been registered. Abdul Kadir, the claimant No. 1, himself admitted on oath in 1908 that he had no interest in No. 123 in which the plot in dispute is admittedly situated. The oral evidence of Asadulla is, in our opinion, unworthy of credit. The land he sold was the land he got from Abdul Khansamah in No. 123. For the first time in a document of 1897 the east boundary was fraudulently extended up to the canal road and this has given rise to all the subsequent troubles and to the loss of plot (A), to which the respondent was unable to establish his title before Mr. Beachcroft. Still even in these two documents, though the southern boundary is defective, nothing that previously passed as No. 123 is excluded. An examination of the facts and history of the case clearly exposes the clandestine understanding between the appellant and his predecessor and Manik Lal Dhar to defeat the just right of the letter's mortgagee. We see no reason to interfere with the decision of the learned Judge, which is affirmed and the appeal is dismissed with costs.
6. There is a cross-objection as to the small residue of the co-sharer. We find that the respondent has no locus standi to contest this matter. The title is found with a third party who is not a party to the proceedings and the possession is with the appellant. The decision of the claim to this small sum of money will in no way affect the title of the real owner if he is not the appellant. The counter-objection is also dismissed with proportionate costs.