1. Two points arise for decision in this appeal viz.,: (1) whether the plaintiff has acquired the right of a raiyat with respect to his homestead by reason of the fact that subsequent to his taking the lease of the homestead he has acquired the right of a raiyat in the contiguous village, and (2) whether the plaintiff's claim that the Bengal Tenancy Act will apply to his tenancy is barred by the doctrine of res judicata inasmuch as a decree passed by the Court of small causes in a previous suit has declared that the tenancy is governed by the Transfer of Property Act. Both these points have been decided in favour of the plaintiff, and the defendants appeal.
2. It is now admitted that the land held by the plaintiff under the defendants is homestead land and that it was taken for residential purposes. There is no evidence that at the time the plaintiff held any land in the village or the neighbouring village as a raiyat. The lease of the homestead was taken in 1907. In 1928-29 the plaintiff took settlement of land in the contiguous village as a raiyat. It has been held by the Courts below that by reason of this fact the provisions of Section 182, Ben. Ten. Act, were attracted and the plaintiff acquired a raiyati right in the homestead land.. The section says that when a raiyat or under-raiyat holds his homestead otherwise than as part of his holding within the same or any contiguous village, his rights as raiyat or under-raiyat with respect to the holding will attach to the homestead tenancy and that tenancy shall be governed by those provisions of the Bengal Tenancy Act which are applicable to raiyats or under-raiyats as the case may be. The contention of the appellants is that the section pre-supposes that the agricultural tenancy in the same or contiguous village was held at the time that the homestead tenancy was created. It is argued that the terms and nature of the homestead tenancy cannot be altered by a subsequent acquisition of a raiyati tenancy in the same village or contiguous village. This view seems to have been entertained by Mukherjea J., in Badal Chandra v. Debendra Nath : AIR1933Cal612 which was the decision of a single Judge. I am bound however by the later decision of a Divisional Bench of this Court in Pulin Chandra Daw v. Abu Bakhar Naskar : AIR1936Cal565 when this very question was raised. It was argued there that the subsequent acquisition of the status of an occupancy raiyat by a tenant cannot take away the contractual right of the landlord in respect of a homestead tenancy created prior to the acquisition of such right. This argument was repelled and it was held that even in such a case the tenant would acquire the right of an occupancy raiyat in the homestead. The first point taken must therefore be decided against the appellant.
3. There remains the question whether the plaintiff's claim is barred by the principles underlying the doctrine of res judicata. The defendant-landlords sued the plaintiff for rent in the Court of Small Causes. The plaintiff contended in that Court that the tenancy was governed by the Bengal Tenancy Act and not by the Transfer of Property Act. This point was considered by the Court of Small Causes and it decided that the tenancy was governed by the Transfer of Property Act. It is now argued by the defendant-appellants that the decision of the Court of small causes will operate as res judicata and bar the present claim that the tenancy is one governed by the Bengal Tenancy Act. The contention has been repelled by the lower appellate Court on the ground that as the Small Cause Court has no jurisdiction to try the present suit its decision in the previous suit will not bar the trial of this point in the present suit. The Court below evidently relied upon the provisions of Section 11, Civil P. C., whereby it is expressly laid down that for the bar of res judicata to apply the Court which decided the point in the first suit must have been competent to try the subsequent suit.
4. On behalf of the appellant it is conceded that under Section 11, Civil P. C, the previous decision would not operate as res judicata in the present suit, but it is argued that this section is not exhaustive and that apart from this section a decision might operate as a bar on principles analogous to those underlying the doctrine of res judicata. For this proposition reliance is placed on a series of well known decisions of the Judicial Committee: vide the cases in Hook v. Administrator General of Bengal ('21) 8 AIR 1921 PC 11, T.B. Rama Chandra Rao v. A.N.S. Rama Chandra Rao ('22) 9 AIR 1922 PC 80 and Maung Sein Done v. Ma Pan Nyun at p. 254. There can be no question that Section 11, Civil P. C., does not codify or crystallize the entire law regarding the doctrine of res judicata. The section deals with some of the circumstances under which a previous decision will operate as res judicata but not with all. 'Where circumstances other than those provided for in Section 11 exist, the principle underlying the rule of res judicata may be invoked in a proper case without recourse to the provision of that section. This is what the Privy Council has laid down in the abovementioned cases. But, obviously, those decisions cannot be interpreted to mean that the provisions of Section 11 may be flouted or overridden or that the prohibitions or reservations express or implied in that section may be ignored. To adopt such an interpretation would lead to the impossible position where one would have to hold that the provisions of the Code have been abrogated by judicial decision. This is what learned advocate for the appellant would want me to do. An examination of the provisions of Section 11 make it quite clear that under that section the claim of the plaintiff for a declaration that his tenancy is to be governed by the Bengal Tenancy Act, is not barred by the decision of the Court of Small Causes to the effect that it is not so governed. Section 11 lays down that a decision in a suit will operate as res judicata and bar a subsequent suit provided that the Court which decided the first suit was competent to decide the subsequent suit. In the present case the first decision was by a Court of Small Causes which has not the jurisdiction to try a title suit like the present one.
5. None of the decisions referred to by the learned advocate for the appellant has laid down that the rule of res judicata could be invoked in a case when the Court which tried the first suit had not the jurisdiction to try the second suit. The decisions of the Privy Council merely extend the effect of Section 11, Civil P. C, by applying the principle recognized by the section to circumstances for which the section has not made express provision. In T.B. Rama Chandra Rao v. A.N.S. Rama Chandra Rao ('22) 9 AIR 1922 PC 80 and Kalipada De v. Dwijapada Das , the first decision was not made in a suit but in land acquisition proceedings. It was held that such a decision would operate as res judicata and bar a subsequent suit although Section 11, Civil P. C, which related only to decisions in suits did not in terms apply. It was said that Section 11 of the Code was not exhaustive as regards the rule of res judicata. In Hook v. Administrator General of Bengal ('21) 8 AIR 1921 PC 11 the first decision was arrived at in ah administration suit and it was held that the decision operated as res judicata in subsequent proceedings in the same suit. There also reliance was placed on general principles of res judicata as Section 11 did not apply in terms. In none of these decisions was it ever suggested that where Section 11 was applicable its provisions could be overridden by reference to general principles of res judicata. On the contrary, in Gokul Mandar v. Pudmanund Singh ('02) 6 CWN 825 the Judicial Committee laid it down that Section 13 of the then Code which corresponds to Section 11 of the present Code was exhaustive in the matters in respect of which it declares the law. This is what their Lordships said:
They will only observe in reference to arguments addressed to them that under Section 13, Civil P. C., a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the Judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised. In this respect the enactment goes beyond Section 13 of the previous Act, 10 of 1877, and also as appears to their Lordships beyond the law laid down by the Judges in Duchess of Kingston's case (1776) 2 Sm LC (Edn. 10) 713. They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.
6. A similar view was taken in Rajah Run Bahadoor Singh v. Mt. Lachoo Koer ('85) 12 IA 23 where their Lordships approved of the dictum of Sir Barnes Peacock in Mt. Edun v. Mt. Bechun ('67) 8 WR 175 which was as follows:
In order to make the decision of one Court final and conclusive in another Court it must be the decision of a Court which would have jurisdiction over the matter in the subsequent suit in which the first decision is given in evidence as conclusive.
7. I hold, therefore, that the decision of the Court of Small Causes will not operate as res judicata in the present suit. The result is that the decision of the Court below must be upheld and this appeal must be dismissed with costs. Leave to appeal under Clause 15 of the Letters Patent is refused.