1. On 4th July 1933, in the Court of the First Munsif at Alipore, a proceeding which was described, as Miscellaneous Case No. 151 of 1932 was disposed of by Narain Chandra Basu, Rai Bahadur, one of the Munsifs at Alipore. That proceeding was an application made by one Krishna Chandra Mukherjee, a cosharer landlord, under the provisions of Section 26-J, Ben. Ten. Act, for the purpose of recovering from Manik Lal Mukherjee a 5/12th share of the landlord's fee of 20 per cent, of the purchase money said to be due from Manik Lal Mukherjee on the ground that he had purchased an occupancy holding from a lady named Nityabala Debi for the sum of Rs. 10,000. The application was upon the basis that in the kobala the holding was described as being of a permanent character, a mourashi mukarari holding, whereas in fact it was no more than an occupancy right. It is important to bear in mind for our present purpose that in the petition put forward by Krishna Chandra there was a distinct and clear averment that what was described in the application as a 'jote jama was raiyati and not a permanent tenure and in answer to the petition there was put before the Court a document which may not unreasonably be described as a 'written statement'.' At any rate, it was an answer to the claim which was being made by Manik Lal and in that answer the respondent to the application or the 'opposite party', as Mr. Mukerji has preferred to call him though he translated the Bengali description by the English word 'defendant', directly and clearly traversed the assertion which was put forward by the applicant that the jote jama was a raiyati and stated that it was, in fact, a mourashi mukarari tenure. I call attention to the form of the pleadings in the matter.
2. I put the word 'pleading' in inverted commas as a technical term in order to demonstrate that the question of the nature of the tenancy which was in dispute or to use a word which perhaps is not altogether appropriate but which has been used in some of the cases, the 'status' of the tenancy was a matter which was directly in issue between the parties at the time of the hearing of the application. That this was so is made abundantly clear and put beyond all controversy when one looks at the judgment which was given by the Munsif at Alipore, on 4th July 1933, for at the head of his judgment he put this:
Points for decision:
I. Is the application maintainable?
II. Is opposite party 1, an occupancy raiyat?
3. And having carefully considered the matter, he comes to this conclusion:
I therefore hold opposite party I is an occupancy raiyat and as such he should pay landlord's fee as prescribed by Section 26-D, Ben. Ten. Act.
4. Then follows this not insignificant observation:
There being bona fide dispute between the parties, I don't think I should allow any compensation to the petitioner.
5. It seems clear therefore beyond all doubt that the learned Munsif who dealt with the matter in July 1923 was well aware that the prime point of dispute which he had to determine was the question of the nature and extent of the jote jama. As one might have anticipated, the unsuccessful party in the proceedings before the learned Munsif in July 1933 did not rest content with the Munsifs decision. Manik Lal having been ordered to pay a fee upon the footing that he had acquired no more than an occupancy raiyati brought the matter to this Court and moved under Section 115, Civil P.C., and succeeded in obtaining a rule directed against the decision of the learned Munsif of Alipore. That rule was Civil Rule No. 965 of 1933 and it came on for hearing before Guha and Bartley JJ., on 15th August 1933, when the Court said:
This rule is directed against an order passed by the learned Munsif, First Court at Alipore, allowing an application made by a cosharer landlord under Section 26-J, Ben. Ten. Act, to recover his share of the landlord's fee, together with compensation, on the purchase of occupancy holdings. The application was opposed by the transferee, on the ground that he was the purchaser of permanent tenures, and not of occupanoy holdings.
It appears that the entries in the finally published Record of Rights are in favour of the transferee, petitioner in this Court. The Court below, has however on the consideration of the materials placed before it, come to conclusion that the petitioner was 'nothing but an occupancy raiyat'. The decision thus arrived at in a summary proceeding as contemplated by the provisions contained in the Bengal Tenancy Act, cannot in our judgment be interfered with in revision, as we are unable to hold that the decision is one without jurisdiction simply because the Court has gone beyond the finally published Record of Rights. The order passed by the lower Court in a summary proceeding as contemplated by law, is based on evidence to which reference has been made by that Court, and we do not think that a case has been made out for our interference with the same, in the exorcise of our revisional jurisdiction.
The Rule is accordingly discharged
6. Now, had Guha and Bartley JJ. done be more than discharge the rule for the reasons they gave in all probability we should not have been faced with the task which confronted us in this appeal. The learned Judges added the following observations.
But, in discharging the rule we desire to make the position clear that the petitioner in this Court is entitled to bring a suit to establish that what was transferred to him were permanent tenures, and recover the balance of landlord's fee paid by him in pursuance of the order of the Munsif, dated 4th and 7th July 1933, against which this rule is directed.
7. Mr. Mukerjee appearing before us on ibehalf of Manik Lal, the transferee, at one point in his argument suggested that these observations of the learned Judges of this Court amounted to a direction that the amsuccessful party in the proceeding under Section 26-J should institute a suit in order to get rid of the effect of the decision of the Munsif at Alipore. The observations of the learned Judges were not in any opinion such a direction. It was however definitely stated before us that it is by reason of those observations having been made that Manik Lal was minded to start further legal proceedings and did, in fact, start a suit which is the suit out of which the present appeal arises. That suit was for a declaration of the plaintiff's mourashi mukarari right in the lands which were the subject-matter of the proceedings before the Munsif at Alipore. There was also a prayer for a permanent injunction restraining the defendants, that is to say the cosharer landlords, from realizing any money under the order made by the learned Munsif of the first Court at Alipore on 7th July 1938, in the proceedings under Section 263, Ben. Ten. Act. 'The suit was tried by Mr. A. Mannan who was an Officiating Additional Munsif at Alipore and he gave a judgment and made a decree in favour of the plaintiff on 15th December 1933. So that at that stage the position was that one Munsif at Alipore had in effect reversed the decision of another Munsif of Alipore. I make that statement in order to record and emphasize the fact that in this matter with which we are now concerned, the position was that the original proceeding was dealt with by a Munsif and the subsequent suit was also dealt with by a Munsif. I think it desirable to do this in order that the decision now given in this matter shall not be taken to extend beyond the ambit of the facts and circumstances of this particular case and cases strictly analogous to it.
8. From the decision of the Munsif at Alipore given on 15th December 1934, an appeal was taken to the Subordinate Judge, Second Court at Alipore, and on 26th September 1935, the learned Subordinate Judge affirmed the decision arrived at by the Officiating Additional Munsif. It seems plain beyond all argument that both the learned Officiating Munsif and the learned Subordinate Judge at Alipore were influenced and in a sense decisively influenced by the observations made by Guha and Bartley JJ. to which I have referred. So great was the influence of the opinion expressed by the learned Judges in this Court that when the suit came on for trial before the learned Officiating Additional Munsif, neither side seemed disposed to join issue upon the question of whether the nature and character of the jote jama was res judicata. Both sides, it appears, fought shy of that issue and either expressly or tacitly allowed the case to be disposed of without that question being considered by the trial Judge. Moreover, when the matter was before the learned Subordinate Judge he in his turn seems to have been overawed and at any rate swayed by the fact that two Judges of this Court had expressed an opinion as to the right of the plaintiff to institute a suit to set aside the original decision of the Munsif of Alipore; because we find the learned Subordinate Judge in the course of his judgment said this:
It was next urged that the Section 26-J decision was res judicata. Ordinarily it would for where a Court acts with jurisdiction and there is no fraud alleged it is final and cannot be agitated again in another Court. In one case it has been said that the tenant might after a decision under Section 26-J sue for a declaration of his title.
9. The learned Subordinate Judge referred to the case in Srinath Bose v. Debendra Nath : AIR1933Cal24 in which Jack J. said:
For the purposes of Section 26-J, the landlord has only got to show in a summary proceeding that the holding is a raiyati holding in order to be able to recover the balance of the transfer fee to which he is entitled under Section 26-C or 26-E.
10. And then follow the observations to which the learned Subordinate Judge has referred:
This of course will not debar any subsequent suit by the tenant to establish that the tenure is a permanent tenure or rent free tenure; and if he establishes that fact in a subsequent suit, he will be entitled to recover the balance of the landlord's transfer fee which has been paid under Section 26-J of the Act.
11. The learned Subordinate Judge however makes this comment. 'This it was contended as merely an obiter. Obiter indeed it is'. With that comment of the learned Subordinate Judge we entirely agree. Unfortunately however the learned Subordinate Judge then revealed the fact that he was under the shadow, if I may so put it, of the observations made by the learned Judges of this Court, because he continued thus:
But in this we are not to be agitated with such question the High Court having distinctly referred the plaintiff to bring the suit.: see the H.C. Judgment, Exhibit 1.
12. Exhibit 1 must be the judgment given by this Court at the time the rule was dis. charged on 15th August 1933. The learned Subordinate Judge however was clearly wrong in thinking that the High Court had distinctly 'referred the plaintiff to bring the suit', if by that he means that the High Court had directed the plaintiff to bring the suit, and he overlooked the fact that the observations made by the learned 'Judges in this Court were themselves just as much obiter as those made by Jack J. in the previous case: because what the 'learned Judges said was not said by them in the course of giving the judgment discharging the rule, nor was the expression of that opinion necessary for the purpose of deciding the matter which was before them at the time. The observations must be taken to be no more than what is sometimes described as a 'pious expression of opinion' appended to the formal order discharging the rule. In our opinion therefore both the Officiating Additional Munsif and the learned Subordinate Judge allowed themselves to be unduly influenced by the fact that two Judges of this Court had expressed the opinion that the plaintiff might be entitled to institute a suit. From the decision of the learned Subordinate Judge Krishna Chandra Mookerjee, the landlord appealed to this Court and in the grounds of appeal he urged:
(1) That the Court of appeal below should have held that the previous decision in the case under Section 26-J, Ben. Ten. Act, operates as res judicata to the present suit.
(2) That the Court of appeal below while holding that the said decision would ordinarily operate as res judicata as it was unaffected by fraud or want of jurisdiction has errred in holding that it cannot be so by reason of the observation of the Hon'ble High Court in Civil Rule Ho. 965 of 1933.
(3) That the said observation of the Hon'ble High Court in the said order dated 15th August, 1933 purporting to grant leave to the plaintiff to bring a fresh suit, cannot in law prevent the application of the doctrine of res judicata.
13. There were other grounds of appeal with which we need not concern ourselves,, because the only matter which has been argued before us is the question whether or not the doctrine of res judicata can bavailed of as a plea in favour of the landlord appellant. As a retort to the grounds of appeal put in by Krishna Chandra Mukherjee, the respondent in this appeal Manik Lal Mukherji put in certain cross-objections in support of the decree of that Court of Appeal below and against the findings of that Court. The only one of those-grounds of appeal which is material for our present purposes is No. 5. It is as follows:
For that the Court of Appeal below erred in observing that ordinarily Section 26-J (Ben. Ten. Act).' decision would be res judicata, but on the contrary it ought to have held that such summary-decision does not bar any title suit relating to the incidents and status of the tenancy in dispute.
14. Thus it came about that the question, whether res judicata was applicable or not was definitely made a question to be decided in the second appeal which ultimately came on for hearing before Remfry J. who by his judgment on 29th July 1937 dismissed the appeal and thereby affirmed, the decision of the Officiating Munsif andi that of the Subordinate Judge of Alipore. Remfry J. was evidently not entirely certain as to the correctness of his decision, for he gave leave for a further appeal under the provisions of Clause 15 of the Letters Patent and thus the matter is before this Court. What we have to determine is whether the decision of Remfry J. upon the question of res judicata in connexion with, this particular case is correct or not. That as already stated, was the only point which was argued before us in this appeal. Remfry J. dealt with certain other points but having regard to the limited way in which, the appeal before us has been argued, it is not necessary that we should consider them. On the question of res judicata, Remfry J. said this:
The next point was with respect to the landlords' fee paid by the plaintiff under an order of the Munsif on defendant l's application under Section 26-J, Ben. Ten. Act. It was argued that. although the finding by the learned Munsif. that the plaintiff had acquired an occupancy right is not res judicata, his order that the plaintiff should pay a sum equal to 20 per cent, of the purchase money is res judicata and cannot be called in question in this suit.
15. Then the learned Judge refers to the application under Section 115, Civil P.C., and says:
The plaintiff applied under Section 115, Civil P.C., to this Court against the order of the learned Munsif and the two learned Judges while dismissing the application as incompetent, observed that the plaintiff might file a suit for declaration of his title and for the recovery of his fees.
16. So that even Remfry J. not unnaturally felt himself impressed by the fact that the two Judges of this Court had apparently advised the institution of this particular suit Remfry J. continues:
There is no direct decision on this point, but in Srinath Bose v. Debendra Nath : AIR1933Cal24 Jack J. expressed the opinion that the fee could be recovered.
17. I have already stated that I agree with the opinion of the learned Subordinate Judge that that observation of Jack J. was no more than an obiter dictum. Remfry J.
In Joy Chandra Bhowmik v. Kali Kinkar Nath (1936) 41 C.W.N. 149, M.C. Ghose J. observed obiter that the question of title after a decision by a Munsif under Section 26-J, Ben. Ten. Act, was not res judicata but the question of the amount payable as landlords' fee was res judicata. The actual question did not arise for decision because in the appeal fee-fore him there had been no order for the refund of the landlord's fee. The same learned Judge in Civil Revision Cases Nos. 70 and 71 of 1937 while dismissing the application under Section 113 with respect to an order passed under Section 26-J added that the party could bring a suit for the purpose of recovering landlord's fee.
18. It is to be seen therefore that there is no pronouncement by any Judge of this Court which we are bound to regard as authoritative or in any way binding upon us. Indeed, there is no pronouncement by any Judge of this Court which is otherwise than a mere expression of opinion in the nature of an obiter dictum and therefore the matter falls to be decided by us in the light of legal principles and any statutory enactment which might be applicable in the circumstances of this particular case. Remfry J. observes that:
Advice given from the Bench according to a decision by Sir George Rankin, does not give a right of suit which did not exist. At the same time such advice must be presumed to be in accordance with the Judge's view of the law.
19. That, of course, may or may not be the exact position. But it is quite obvious that the first part of the observations is entirely correct, because an expression of opinion given by one or more Judges cannot, if it be merely in the nature of an obiter dictum, finally determine what is the law applicable to the particular point in dispute. Remfry J. himself took the view which I have already expressed, namely that so far as the decisions go, the matter is still open; but he said:
There is a strong body of opinion in favour of the view that the landlord's fee can be recovered in a separate suit.
20. Then however the learned Judge seems to have fallen into a slight misapprehension, because he says:
The Section says that the landlord may recover his fee by an application and under Section 11, Civil P.C., no question of res judicata arises unless there has been a suit.
21. With all respect to Eemfry J. it is not quite correct to say that the landlord may recover his fee by an application. The Section says no more than that the landlord shall be entitled to recover the balance of the landlord's transfer fee. The Section itself does not indicate whether recovery is to be by means of an application or by means of a suit or by some other means. It is true that in Section 188, Ben. Ten. Act, the language employed might seem to indicate that the intention of the Legislature, as far as one can see, is to limit a landlord to that particular form of procedure, but Mr. Mukerji appearing for the respondents in this appeal has frankly stated that there is no reason why the proceeding adopted by the landlord to recover the balance of the transfer fee should or should not be by means of a suit, that Remfry J. seems to have assumed that no question of res judicata arises unless there has been a previous suit and bases a great deal of his reasons upon that assumption for he says:
The Legislature by directing that an application should be made intended that the decision of that application would not operate as res judicata. Their Lordships of the Judicial Committee have often pointed out that Section 11, Civil P.C., is not exhaustive, but where their Lordships have held that the doctrine applies beyond the limits of Section 11, their Lordships have always emphasized that the decision in the proceedings in which they have held to be res judieata, were proceedings in which there was an appeal and in both cases emphasized the fact that there was an appeal to the Judicial Committee. Therefore it appears that, apart from Section 11, no question of res judicata can arise in connexion with summary proceedings, unless of course the Legislature has made express provision on the point. It seems to me therefore that the matter, in respect of the fee payable, was not intended by the Legislature to operate as res judicata.
22. As I have said Remfry J. started his reasons on the basis of what he mistakenly understood to be the provisions or effect of Section 26-J and the procedure to be adopted thereunder and so, in our opinion, he has given an erroneous limitation to the circumstances in which and the conditions under which the doctrine of res judicata can operate, and the learned Judge's view that no question of res judicata can arise in consequence of antecedent 'summary' proceedings, is, in our opinion, not justified of any of the decisions of the Judicial Committee of the Privy Council to which he refers. It seems that Remfry J. was giving to the expression 'summary proceedings' the meaning of 'proceedings which were not final'. In the one part of his judgment however he seems to have used the word 'summary' as if it were a term of criticizm, if not, indeed, contempt, and at one stage he seems almost to suggest that because those proceedings were instituted by means of a petition, that is to say, because the proceedings were in the form of an application and not in the form of a suit, the learned Munsif who heard the matter in all probability did not bestow the amount of care and attention which he would otherwise have done had the matter been started by means of a plaint and so become a suit.
23. As far as we can see, there is no justification whatever for criticizm of that description; on the contrary in this particular case it seems quite certain that the learned Munsif who heard the original application under Section 26-J did deal with it in an entirely judicial and thorough manner. Mr. Mukerji in his argument used the word 'summary' in the same kind of way as Remfry J. generally speaking did, namely as indicating proceedings against which there is no appeal. Now, in my opinion, there is no justification for holding, that the doctrine of res judicata can have no application as a consequence of a decision in proceedings which are in themselves final in the sense that they are conclusive between the parties, because they are not susceptible of appeal. On the contrary, in so far as there is any indication upon this point in the decisions of the Privy Council, it is in the opposition sense. Remfry J. has pointed out that the provisions of Section 11, Civil P.C., are not exhaustive and indeed that is a proposition which at this time of the day is beyond all dispute what ever. It is perhaps desirable however that I should re-call one or two decisions upon. this point. In Kalipada De v. Dwijapada Das Lord Darling giving the judgment of the Board, said:
The question as to what is to be considered to be res judicata is dealt with by Section 11, Civil P.C., 1908. In that Section are given many examples of circumstances in which the rule concerning res judicata applies; but, it has often been explained by this Board that the terms of Section 11 are not to be regarded as exhaustive. In Ram Kripal Shukul v. Rup Kuari (1885) 6 All. 269 at p. 41, this is made clear, especially in these words of Sir Barnes Peacock, the binding force of such a judgment in such a case as the present depends not upon Section 13 of Act 10 of 1877' (now replaced by Section 11, Civil P.C., 1908), 'but upon general principles of law. If it were not binding there would be no end of litigation'. This decision, and the authority of the very words used by Sir Barnes Peacock are confirmed and enhanced by the language of Lord Buekmaster in announcing the conclusion of this Board in Hook v. Administrato-General of Bengal (1921) 8 A.I.R. P.C. 11 at p. 194, and further Rama Chandra Rao v. Rama Chandra Rao (1922) 9 A.I.R. P.C. 80 at page 138.
Several cases decided in Indian Courts were cited in the course o this appeal, as some of them had been to the High Court from whom this appeal is brought. That Court pointed out the fallibility, in the matter of law, of many of those cases, as already demonstrated by decisions of this Board. It appears to their Lordships worth while to repeat what was said by Sir Lawrence Jenkins in delivering the judgment of the Board in Sheoparsan Singh v. Ramnandan Prasad Narayan Singh (1916) 3 A.I.R. P.C. 78 at p. 98 'In view of the arguments addressed to them, their Lordships desire to emphasize that the rule of res judicata while founded on ancient precedent, is dictated by a wisdom which is for all time'. 'It hath been well said', declared Lord Coke, 'interest reipublicae ut sit finis litium-otherwise, great oppression might be done under colour and pretence of law' (6 Coke, 9a). Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hinda Commentators.
24. Then his Lordship says and this is most important for our present purposes:
And so the application of the rule by the Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law.
25. Then in Mg. Sein Done v. Ma Pan Nyun we find similar expressions of opinion. Lord Russell of Killowen for example (at page 254) says this:
It is unnecessary to consider whether the present case falls within the actual wording of Schedule 11 of the Code. It is well settled that the statement of the doctrine of res judicata contained therein is not exhaustive, and that recourse may properly be had to decisions of the English Courts for the purpose of ascertaining the general principles governing the application of the doctrine.
26. The principle on which the doctrine of res judicata is based was laid down long ago in the well known case of The Duchess of Kingston (1775) 27 E.R. 487 where the Lord Chief Justice of the Court of Common Pleas after conferring with the rest of the Judges stated that, in course of delivering their opinion:
From the variety of cases relating to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true; first, that the judgment of a Court of concurrent jurisdiction, directly upon the point, is as a plea, a bar or as evidence, conclusive between the same parties upon the same matter directly in question in another Court; secondly, the judgment of a Court of exclusive jurisdiction directly upon the point is in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court for a different purpose.
27. That means that in order that the principles of res judicata should apply, it is essential that the former judgment in the present matter, i.e. the decision of the Munsif given in the proceedings under Section 26.J, must be (i) that of a Court of concurrent jurisdiction, (ii) directly in question in the subsequent suit, and (iii) between the same parties. Otherwise, the principles of res judicata ought not to apply. In the present instance, it is abundantly clear to us that in the proceedings which were taken under Section 26-J, Ben. Ten. Act, in the Court of one Munsif the matter of the nature and extent of the tenancy was directly in question and the same matter was subsequently in question in the suit in the Court of another Munsif and the parties were the same. It has been argued by Mr. Mukerji on behalf of the respondent that the question of the nature or character or extent or as he calls it the 'status' of the tenancy was only incidental to the question which the learned Munsif had to determine, viz. whether or not the transfer fee was payable to the landlord. Apparently that was the view taken by R.C. Mitter J. in Maharaj Bahadur Singh v. Benode Behari : AIR1936Cal263 the learned Judge said:
The prayer in an application under Section 26-J is not for the determination of the status of the tenant but for recovery of a sum of money although in deciding the said claim of the landlord, the question of status may have to be gone into. It is a money claim which the landlord wants to enforce and the fact that the question of status has to be gone into because the defendant has rised the question of status will not authorize the Court to stay the application under Section 111.
29. With the implication of that expression of opinion we are unable to agree. The nature of the tenancy does not arise as merely subsidiary to the main point in dispute between the parties but arises directly and essentially, because it is impossible for the Munsif to decide whether or not there is due to the landlord plaintiff the transfer fee unless and until he has first of all decided whether the tenancy was a mourashi mukarari or whether it is an occupancy' raiyati as claimed by the landlord. The determination of the character of the tenancy, which in this particular case is described as the jote jama, is part and parcel of the question whether or not the money is due from the respondent. In our view, it cannot rightly be said that the question of the status of the tenancy is merely incidental, ancillary or subsidiary: it is a. matter which is directly in question between the parties. Certainly it was a matter directly in issue in the present instance as; the pleadings in the application proceedings clearly show. With all respect there, fore to Remfry J., we find ourselves unable to agree with his decision and we think that all the conditions essential for the coming into operation of the principles of res judicata were present in the circumstances of this particular case and therefore the suit which was instituted by the pre. sent respondent ought to have been dismissed by the Officiating Additional Munsif of Alipur. The result is that we are of opinion that this appeal must be allowed. The judgment of Remfry J. will be reversed' and so going down the scale, the judgments of the Subordinate Judge and that of the Munsif at Alipur with the consequence that Suit No. 113 of 1934 of the Court of the Additional Munsif at Alipur is now dismissed. The appellant is entitled to his costs in all the Courts.
30. I agree.