1. I would answer the question referred to us in the affirmative. For the reasons given by me in my judgment in Gajju Lall v. Fatteh Loll 1 Bing. N.C. 606 I think that the judgment in the previous case is evidence under Section 9 of the Evidence Act bearing upon the question of the identity of the tenure in respect of which the present suit has been brought with the tenure in respect of which the previous suit was brought.
2. The plaintiffs claim to be entitled, by purchase, to a 1 anna 8 gundas share of an estate, under which estate they allege that the defendants hold certain tenures; and this suit is brought to recover their share of the rent of the tenures. The question referred to us is whether a decree obtained in a former suit by another sharer in the same estate against the same defendants is admissible in evidence, the object being to prove the defendants' possession of the tenures.
3. When that decree is examined, all that appears from it (and nothing but the decree itself was put in) is this: that the plaintiff in that suit had acquired also by purchase, a share in the same estate in which the now plaintiffs say they have a share, and he sued defendants for their separate share of the rent of the same tenures now in question, making the now plaintiffs co-defendants; they did not appear. Two defences were raised; first, a denial, or at least a refusal to admit possession of the tenures. This was found against the defendants. The second defence was limitation, on the ground that the person entitled to the particular share of the rent then sued for had not received any rent for more than twelve years. As to this, the Court said, first, that there was some evidence of receipt of that share of the rent within twelve years; and, secondly, that however that might be, the defendants being in possession of the tenures were liable for the zamindari rent, and could not therefore repudiate any particular share of it. On this we think it clear that no question of res judicata can possibly arise. The test is mutuality. If the former suit had been dismissed, could it have been said that the now plaintiffs were barred? Might they not have said, we had and have to do with our own shares, we neither knew nor cared about other people's shares: why should we have meddled in their suit?
4. Apart from res judicata, the question whether the decree referred to was admissible in evidence is, we think, concluded by the two Full Bench cases Gujju Lall v. Fatteh Lall I.L.R. 6 Cal. 171 and Brojo Behari Hitter v. Kedar Nath Mozumdar I.L.R. 12 Cal. 580.
5. As the judgment in question was the ground of decision in the lower Appellate Court this appeal must prevail. The decree of that Court will be set aside, and that of the first Court affirmed with costs in all Courts.