1. This is an appeal by the defendant tenant against whom the plaintiffs brought an action to have it declared that certain lands covered by a kabuliat, dated the 1st Sraban 1299, were liable to assessment and to recover the assessed rent and damages for the years 1303 to 1310 B.S. Both the lower Courts have decided in favour of the plaintiffs. The only point taken in second appeal is as to the application of the rule of res judicata. The lower appellate Court says that the objection as to res judicata was not pressed on behalf of the defendant, and that it had been rightly overruled by the Court of first instance. In a former suit, No. 12 of 1901, between the same parties, under the provisions of' Section 46 of the Bengal Tenancy Act, seven issues were framed. The Munsif found those issues against the plaintiff and dismissed the suit. Then the Subordinate Judge affirmed that order of dismissal but only with 'reference to two issues, and ho loft undecided the fifth issue, namely, was the kabuliat in question bona fide? 'On these facts, it is impossible to contend with success that the present suit for assessment of rent, on the basis of the same kabuliat is barred by the operation of res judicata. The learned vakil for the defendant-appellant candidly admits his difficulty,, and is unable to cite any authority opposed to the cases mentioned in the judgment of the Munsif,, in particular, the case of Chunder Coomar Mitter v. Sibsundari Dassee 11 C.L.R. 22 18 C. 631 whore Garth, C.J. observed,' when the decision of a lower Court is appealed, to a superior tribunal, and that tribunal for any reason does not think fit to decide the matter, it is loft an open question. We have held so hero over and over again; and it is not because in point of form the appeal in the first suit was dismissed, that the decision of the Munsif can be considered as confirmed.' On the plain meaning of the word final,' I entertain no doubt that a matter cannot be considered to be finally decided, unless in point of fact it was actually decided by all the tribunals before which that particular matter came for decision.
2. The appeal, consequently, fails and must-be dismissed with costs.