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Kasiswar Mukhopadhya Vs. Mohendra Nath Bhandari and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal136
AppellantKasiswar Mukhopadhya
RespondentMohendra Nath Bhandari and ors.
Cases ReferredSoorjo Monee Dayee v. Suddanund Mohapatter
Excerpt:
res judicata - code of civil procedure (act xiv of 1882), section 13--landlord and tenant--suit for rent--issue whether land was mal or lakhiraj--question raised in a rent suit, whether directly and substantially in issue in that suit--subsequent suit for khas possession. - .....shows that the mere fact of the former suit in which the question of title is determined being a rent suit, does not prevent that determination from operating as res judicata in a subsequent suit brought for the establishment of title. their lordships in the last mentioned case observe: ' radha madhab now comes to redeem; but the right to redeem rests on precisely the same ground as the right to rent was rested. in each case the question is equally---who is the true representative of matangini? therefore, their lordships conceive that the matter was expressly decided by the high court in the rent suit.' that being so, we do not think that the plaintiff's contention can be supported to the extent to which it goes.4. as for the case of srihari banerjee v. khitish chandra rai (1897).....
Judgment:

Banerjee, J.

1. The only question raised in this appeal is, whether the Courts below are right in holding that the suit is barred under Section 13 of the Code of Civil Procedure.

2. The suit was one for khas possession of certain plots of land. The former suit, the judgment in which is made the basis of the plea of res judicata, was brought by the predecessor in title of the present plaintiff against the present defendants for rent, and one of the questions raised in the case in the first Court, and the only question upon which the decision of the case was made to rest finally in the Appellate Court, was whether the land, in respect of which rent was claimed, was the mal land of the plaintiff, or the lakhiraj land of the defendants. That question was determined by the Appellate Court against the plaintiff, and his suit was dismissed. The Lower Appellate Court has held that the judgment in the former suit operates as res judicata upon the question raised in this case, namely, whether the land in dispute is the mal land of the plaintiff or the lakhiraj land of the defendants. There is no dispute here that the question raised in this suit was in issue in the former suit, and was heard and determined in that suit; and the only ground upon which the learned Vakil for the plaintiff (appellant) asks us to hold that the judgment in the former suit does not operate as res judicata is that, though the matter now in dispute was in issue in the former suit, it was not directly and substantially in issue in that suit within the meaning of Section 13 of the Code of Civil Procedure, because the former suit was one for rent, and the primary question for decision in that suit was whether the relationship of landlord and tenant subsisted between the parties. And, in support of this contention, the cases of Run Bahadoor Singh v. Lucho Koer (1885) I. L. R. 11 Cal. 301: L. R. 12 I. A. 23 and of Srihari Banerjee v. Khitish Chandra Rai (1897) I.L.R. 24 Cal. 569 are relied upon.

3. No doubt there are certain observations in the judgment of their Lordships of the Privy Council in the case of Run Bahadoor Singh v. Lucho Koer which apparently lend some support to the plaintiff's contention; but then a subsequent decision of the Privy Council in the case of Radha Madhub Holdar v. Monohur Mukerji (1888) I.L.R. 15 Cal. 756: L. R. 15 I. A. 97 clearly shows that the mere fact of the former suit in which the question of title is determined being a rent suit, does not prevent that determination from operating as res judicata in a subsequent suit brought for the establishment of title. Their Lordships in the last mentioned case observe: ' Radha Madhab now comes to redeem; but the right to redeem rests on precisely the same ground as the right to rent was rested. In each case the question is equally---who is the true representative of Matangini? Therefore, their Lordships conceive that the matter was expressly decided by the High Court in the rent suit.' That being so, we do not think that the plaintiff's contention can be supported to the extent to which it goes.

4. As for the case of Srihari Banerjee v. Khitish Chandra Rai (1897) I.L.R. 24 Cal. 569 the facts there wero very different from those of the present case. There the issue tried in the former suit was, what was the share of the rent to which the plaintiff was entitled; whereas the issue raised in the subsequent suit was, what was the share of the property to which the plaintiff was entitled: and, as is pointed out in the judgment, the two questions were not identical. ' And the judgment,' the learned Judges in that case say, of the Court of Appeal rested upon considerations based on the provisions of the Land Registration Act, and on the fact of the purchase of the present plaintiffs being subsequent to that under which the present defendant No. 1 claimed---considerations which were necessary and sufficient for the determination of the rent suit, but which are not conclusive in a suit like the present, which is for determination of title to land as distinguished from title to recover rent, and in which the plaintiffs claim a preferential right, notwithstanding that their purchase was subsequent to that of the defendant No. 1 by reason of that purchase being in satislaction of a decree on a prior mortgage. Section 78 of Bengal Act VII of 1876, and Section 60 of Act VIII of 1885, bar inquiry in a rent suit into any question of title independently of the Land Registration Record, while clause (a) of Section 89 of the former Act reserves the right to obtain a declaration of title independently of such record by a regular suit.'

5. These than were the grounds upon which it was held that the decision in a rent suit did not operate as res judicata in a subsequent suit brought for establishment of title. But these considerations have no application to the facts of this case.

6. It remains then to consider whether there is anything in the circumstances of this case which would warrant our holding that the question heard and determined in the former suit, namely, that relating to the question of mal or lakhiraj, was not directly and substantially in issue in that suit.

7. Now the Code of Civil Procedure does not define the expression ''matter directly and substantially in issue.' The only explanation of the expression that is given is in explanation II of Section 13 of the Code: and that relates to cases where a matter is to be held to have been directly and substantially in issue constructively, though it was not directly and substantially in issue actually. Here there is no question that the matter was in issue actually, and not merely constructively. The only question is whether the matter was directly and substantially in issue. ' Substantially, ' evidently, signifies what was indicated by the phrase, ' in effect though not in express terms,' in Lord HARDWICKE'S statement of the doctrine of res judicata in the case of Gregory v. Molesworth (1747) 3 Atkyns. 626 which is cited with approbation by their Lordships of the Privv Council in the case of Soorjo Monee Dayee v. Suddanund Mohapatter (1874) 12 B. L. R. 304 : L. R. I. A. Sup. Vol. 212: 20 W. R. 377. In the present case there can be no question that the issue now raised was raised substantially in the former case within the meaning assigned to that word in the cases just referred to. Here the matter was not merely in effect, but also in express terms decided.

8. Then there remains the question whether the matter was directly in issue. The word ' directly ' seems to have been used in contra-distinction to the words ' incidentally ' and ' collaterally ' made use of in the statement of the opinion of the' Judges in the Duchess of Kingston's case, (1776) 2 Smith's L. C. (9th Ed.) 812 (814).

9. Without attempting to lay down any hard and fast rule for determining when an issue should be considered to have been directly raised, and when incidentally or collaterally, we think it enough, for the purposes of the present case, to say that, whatever meaning may be assigned to the term 'directly,' it is impossible to avoid the conclusion that the issue upon the question of mal and lakhiraj was raised directly in the former suit, quite as much as it is in this suit. On referring to the final judgment of the Appellate Court in that suit we find that the learned District Judge, after setting out the previous proceedings in the case, observes: ' For the plaintiff appellant it is urged that his evidence in the lower Court fully established that the land was mal and not lakhiraj and that the Munsif erred in holding otherwise. This then is the point for determination.' And then, after discussing the evidence at some length, the learned Judge concludes with these words: ' The point for determination is found against the appellant, and the appeal will be dismissed with costs.' It appears clear from this that even if the decision in the former suit, which was one for rent, might have been made to rest upon grounds other than that upon which it is actually made to rest, after the first Court had distinctly found the issue upon the question of mal or lakhiraj against the plaintiff, the plaintiff, who was the appellant, thought it fit to rest his case before the Appellate Court upon the sole ground that he was entitled to succeed because the land was proved to be his mal land, and not the lakhiraj land of the defendant. It is, therefore, impossible to say that, upon any view of the meaning of the term 'directly,' the issue tried in the former suit, as to whether the land was mal or lakhiraj, was anything but a direct issue in the case. The decision in the former case, therefore, has, in our opinion, been rightly held to operate as res judicata in this case. That being so, the only contention raised by the appellant fails, and the appeal roust be dismissed with costs.


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