B.N. Maitra, J.
1. Title Suits Nos. 252 of 1963 and 121 of 1964 were tried together. In the earlier Suit No. 252, the plaintiff's allegation is that the premises No. 601, Diamond Harbour Road, belonged to Debiprosad Paul and Umaprosad Paul, out of these 7 (seven) shop rooms located in that premises, the disputed shop room was let out to Biswanath Das (plaintiff) at a rental of Rs. 18/- per month payable according to English Calendar. The agreement was that the tenancy would commence from the 1st June, 1963. The defendants accepted the rent for June in advance and a receipt was granted. On the 11th June, 1963, the plaintiff took some articles to that shop. The defendants demanded premium from him. The plaintiff declined to make such payment. The police was falsely informed that he had stored his belongings in the room in question. The suit is for a declaration that the plaintiff is a tenant in respect of the disputed land under the defendants and for an injunction.
2. The defendants filed a written statement alleging inter alia that the plaintiff's case was absolutely false. No settlement was granted to the plaintiff, who was a trespasser.
3. In the latter Title Suit No. 121, Biswanath (plaintiff of Title Suit No. 252) is the sole defendant. Debiprosad and Umaprosad (two defendants of that earlier suit) are the sole plaintiffs. They alleged that on the 11th June, 1963, the defendant along with others forcibly broke open the lock and occupied the disputed room in their absence. They initiated a criminal proceeding against the defendant. Thus, the latter filed the false Title Suit No. 252 of 1963 for declaration of his tenancy right. So, the plaintiff prayed for ejectment. Subsequently, the plaint was amended and a prayer for declaration of title added.
4. The defence is that the defendant is a tenant of the disputed room under the plaintiffs and the suit is not maintainable.
5. The learned Munsif discussed the issues of the earlier Title Suit No, 252/1963 only. However, he discussed the parties' contention on the merits and stated that Biswanath's version was not true. He was a trespasser. So, he dismissed Biswanath's Title Suit No. 252/63 and decreed the other suit. Biswanath preferred two appeals, which were dismissed by the learned Additional District Judge, Ali-pore. In that Court, a plea was first taken that the Title Suit No. 121/1964 was not maintainable since it had been instituted by the plaintiffs in their personal capacity. This contention was not accepted because the same was not raised in the pleadings or before the learned Munsif. Being aggrieved by that decision, only one appeal has been filed by Biswanath against the decree for ejectment passed against him in the latter Title Suit No. 121 of 1964. No appeal was filed by him against the dismissal of the other appeal.
6. The learned Advocate, appearing on behalf of the plaintiffs (respondents, Umaprasad and Debiprasad) has contended that since defendant Biswanath lost both the appeals before the learned Additional District Judge and he chose not to prefer an appeal against the dismissal of his appeal in his own earlier suit, the present appeal is barred by res judicata. Reliance has been placed on the cases in Lonankutty in : AIR1976SC1645 and Narayan Prabhu in : 2SCR636 . In Lonankutty's case, it has been stated that where there is a common judgment in four appeals arising out of two suits filed by both parties against each other on the same subject and decided on different dates, the decision in one set of appeals will operate as res judicata in the other set of appeals. In the case of Narayan Prabhu, Mr. Justice Beg has observed that one of the tests in deciding whether the doctrine of res judicata applies to a particular case or not, is to determine whether two inconsistent decrees will come into existence if it is not applied. The learned Advocate appearing on behalf of the respondents (sic) has referred to the case, Ramagya Prasad v. Murli Prasad in : 3SCR915 to show that where two suits are consolidated between the same parties and tried together and there is an appeal against the earlier suit, the appeal against the subsequent suit is not barred. It has been stated that in Biswanath's suit, he merely asked for establishment of his tenancy right, whereas Debiprasad and Umaprasad sought to eject him from the disputed premises. So, though he did not prefer any appeal against the dismissal of his appeal in his own suit, the same cannot operate as res judicata.
7. According to the provision of Section 11 of the C. P. C. one of the principles involved is that a matter can only operate as res judicata if the subject matter in dispute is directly and substantially in issue in the former suit. In this case, no issue of the present plaintiffs' title was raised or decided by the trial court. Their title was admitted. The appellate court also did not arrive at any decision on the point of plaintiffs' ( Umaprasad and Debiprasad's) title. Of course, the doctrine of res judicata will be applicable if the matter in controversy might and ought to have been raised in the previous suit, viz., in Biswanath's suit. But Biswanath did not raise any issue regarding the plaintiffs' title. On the other hand, he admitted that he was the tenant under the other side, Debiprasad and Umaprasad. So, the matter in controversy was not directly and substantially in issue in the earlier suit instituted by Biswanath. Further, here no two inconsistent decrees could be passed. The reason is simple because Biswanath asked for establishment of his tenancy right and that prayer was rejected. In that suit, there was no scope for deciding whether he could be ejected. In the other suit instituted by Debiprasad and Umaprasad, the question arose whether they could eject Biswanath on the strength of their title and possession.
So, no question of passing two inconsistent decrees can arise.
8. Now about the three Supreme Court cases cited by the parties. In Ramagya Frasad v. Murli Prasad's case : 3SCR915 , the subject matter of the two suits was different. Hence, the decision in this case cannot be based on the principles enunciated in that decision. About the case of Narayan Prabhu : 2SCR636 , the test, if two inconsistent decrees would come into existence, has already been dealt with. In the case of Lonankutty : AIR1976SC1645 , one side asserted that the flow of water and its discharge was necessary both for agriculture and for prawn breeding on the respondents' land. The respondents subsequently filed a counter suit asking for injunction restraining the appellant from interfering with their prescriptive rights. So, the right of discharge of water was common to both the cases, and hence, that was the issue which directly and substantially arose in that decision. Hence, that case is also distinguishable. From the aforesaid discussion, the preliminary objection raised on behalf of the respondents cannot be accepted and I hold that the present appeal is not barred by the doctrine of res judicata.
9. It has been contended on behalf of the appellant that the learned Munsif framed several issues in the title suit filed by Biswanath. But only those issues were written out in the judgment and considered. The issues of the latter suit were not written. Hence, the merits of the case were affected. The relevant portion of Section 99 of the C. P. C. says that no decree shall be reversed or substantially varied in appeal on account of any error, defect or irregularity in the proceedings not affecting the merits of the case. It is true that the issues of Debiprasad and Umaprasad's case were not specifically written in the judgment by the learned Munsif. Nevertheless, he considered the case in all its aspects and arrived at a decision that Biswanath's claim was without any merit. So, that was a mere irregularity and not a material one. It has been rightly pointed out on behalf of the respondents that the appellate court clearly considered the matter by raising points Nos. 1 and 2. The first point considered by the learned Additional District Judge was whether Debiprasad and Umaprasad agreed to let out the shop room in question. So, that was the subject matter of Biswanath's earlier suit.
The second point considered by the first appellate court was if Biswanath was a trespasser regarding the disputed shop room. So, that was the main question involved in the subsequent title suit filed by Debiprasad and Umaprasad. So, the merits of the case were not affected and the present appellant was not prejudiced.
10. It has been next contended on behalf of the appellant that the decision of the learned Additional District Judge cannot be supported because by amending the plaint the plaintiffs raised the question of title. But no issue on title was framed or decided by the courts below, and hence, the appeal must be allowed on that ground.
11. In this respect the law of non-traverse will clinch the issue. Rule 5 of Order 8 of the C. P. C. says that every allegation of fact in the plaint, if not specifically denied in the written statement, shall be taken to be admitted except against a person under disability. Here, Biswanath is not a person under disability. In para 1 of the plaint filed by Umaprasad and Biswanath, there is a specific averment that they are the owners of the disputed shop. This averment of para 1 of the plaint was not denied in the written statement. On the contrary, the case in the written statement is that the defendant is a tenant of the shop room in question under Debiprasad and Umaprasad. Of course, the learned Advocate appearing on behalf of the appellant, laid emphasis on the point that admission in pleadings cannot be dissected and they must be considered as a whole. Reference may be made to the decision of Basant Singh v. Janki Singh in : 1SCR1 . In that Supreme Court case, Mr. Justice Bachawat explaining the decision of Beaumount J in AIR 1941' Bom 144 has stated that admission in plaint may be used in evidence against a party in other cases, but it is not conclusive. In the plaint of Biswanath's suit, there is a clear admission that Debiprasad and Umaprasad are the owners of the shop room in question. That admission is severable from the other admissions. This aspect of the case cannot be brushed aside.
12. According to the provision of Order 14 Rule 1 (1) of the C. P. C. it is not necessary for the Court to frame an issue unless the material allegation of fact in the plaint is denied by the other side. The question of framing issues does not arise from any party's case, but on a consideration of the pleadings of both the sides. The observations of Lord Leach in 54 Cal WN 317 at p. 320: (AIR 1950 PC 68 at p. 69) may be cited to show that it is absolutely necessary that the determinations in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. Since the para 1 of the plaint was not denied by Biswanath in his written statement, I must hold that it was not necessary to frame any other issue on the question of title.
13. It has been lastly stated on behalf of the appellant that the rent receipts (Ext. A series) put in by Debiprasad and Umaprasad in the later suit No. 121 indicate that the trust estate of Dasarathi Pal was the owner. But the suit was instituted by Umaprasad and Debiprasad in their personal capacity and not as trustees, and hence, the same is not maintainable.
14. No such defence was taken. It has been rightly pointed out on behalf of the appellant that after the plaint was amended and the prayer for declaration of title added, a chance was given to Biswanath to file an additional written statement. But he did not avail of that opportunity and file any written statement denying the plaintiffs' title.
15. Nevertheless, a lacuna remains because of the proviso added to Order 8, Rule 5 of the C. P. C. That proviso indicates that in spite of the law of non-traverse, the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. Of course, by not traversing the statement in para 1 of the plaint filed by Umaprasad and Debiprasad, it shall be deemed that their title was admitted. Nevertheless, in view of the proviso to Rule 5 and to Section 58 of the Indian Evidence Act, it is the duty of the court to determine this matter. After all, procedure is the hand-maid of justice. The principles of the case in 19 Cal LJ 518 at P. 523 : (AIR 1914 Cal 482 at pp. 842-43) may be referred to. This lacuna in the case was brought to the notice of the learned Additional District Judge while the appeal was argued. So, considering the case in all its aspects, it seems that for the ends of justice, the suit must be sent back on remand to the learned appellate court. That court will come to a decision whether the plaintiffs (Umaprasad and Debiprasad) have title to the disputed shop room. For that purpose, he will take additional evidence, and if they can sue in their personal capacity. If he arrives at a contrary decision, then he will give an opportunity to the plaintiffs to further amend the plaint and permit them to sue as trustees and give a chance to the defendant to file additional written statement. If that court decides that the plaintiffs have title and they can institute the suit in their personal capacity, then it will decide the suit according to law. But the question whether Biswanath is a trespasser will not be reopened in that court.
16. The appeal be, therefore, allowed. The judgment and decree appealed against be hereby set aside and the case be remitted to the learned appellate court for disposal according to law in the light of the observations made hereinbefore.
17. There will be no order as to costs