O'Kinealy and Macpherson, JJ.
1. It appears that, previous to the present suit, there was a suit between the same parties in which the plaintiffs sought to eject the defendant.
2. That suit was dismissed, but in the course of the trial, the Court came to a decision upon the nature of the defendant's holding.
3. In the present suit, the plaintiffs seek, anew, to recover possession of the land after notice to quit, and the lower Court has held that the decision arrived at by the Court in the previous suit is binding between the parties; but that as in the previous suit no issue regarding the question of estoppel by conduct was raised, the defendant is not precluded from raising it in the present suit; and on that ground judgment has been given in favour of the defendant.
4. The plaintiffs have appealed, and they urge that the previous decision is, as has been held by the Court below, res judicata, and being res judicata that Court was precluded from going behind the previous decision and taking notice of the question of estoppel. They further contended that the inducement was too remote to affect the conduct of the defendant, and that the Subordinate Judge was wrong in holding that there was an estoppel by conduct.
5. This last is a question of fact with which we are not competent' to deal. The Judge has declared that 'it is clear that Lall Mohan by his words and conduct induced the appellant to believe that Panchoowri's interest in the property was of a permanent character and to part with a large sum of her money in consequence of that belief for purchase of the land.'
6. In regard to the first question raised by the appellant, namely, whether the decision arrived at in the previous case is res judicata and binding between the parties, we have come to the conclusion that it is not.
7. No doubt it has been held by a Full Bench of this Court that, even where the defendant does not get the issue decided against him inserted in the decree, it is binding between the parties in a subsequent litigation. But this procedure was not followed in the case of Run Bahadoor Singh v. Lucho Koer L.R. 12 I.A. 23 : I.L.R. 11 Cal. 301 and in regard to that ^hen-Lordships state as follows:
The widow has not appealed against the decree, nor could she, because it is in her favour. But she has appealed against the finding that the brothers were joint in estate. It may be supposed that her advisers were apprehensive lest that finding should be hereafter held conclusive against her. This could not be so, inasmuch as the decree was not based upon it, but was made in spite of it.
8. Here, in the former suit between the present parties, the decree dismissing the suit was not based on the finding adverse to the defendant in that case, but in spite of it. We think, therefore, after looking at the decision of their Lordships in the Privy Council, that the previous decision is not binding between the parties in this suit.
9. Further, we are of opinion that, even if we come to an opposite conclusion, the respondent is correct in saying that the issue then decided was not an issue regarding any estoppel by conduct.
10. What was decided there was, what was the right to the property, not whether the plaintiffs are estopped by their conduct from asserting their right if it existed.
11. From this point of view also we think the decision of the lower Court was correct.
12. The appeal is therefore dismissed with costs.