1. The plaintiffs-appellants brought a suit against the defendants for arrears of rent for the years 1321 to 1324 on the basis of a pottah, dated the 3rd Sraban, 1301. The property in respect of which rent was claimed consisted of 25 kittas of lands. Defendants Nos. 3 and 4 only appeared and contended inter alia that they held a separate 4 annas hissya in the 25 kittas and paid rent to the plaintiffs according to their share. They further denied their liability for the entire rent and claimed that a decree in respect of their 4 annas share should be passed against them. The learned Munsif before whom the suit was brought give a decree to the plaintiffs overruling all the objections of the defendants. The Subordinate Judge of Backergunj on appeal found against the plaintiffs on some points. He, first, found that the pottah created a tenure not of a composite holding but of several kittas of which the land was comprised. He next found that there was Kharij of the 4 annas hissya of defendants Nos. 3 to 9 and that they were not liable for the entire rent. As a result of his findings he passed a decree to the effect that one-fourth of the claim should be decreed against defendants 3 to 9 and remaining three-fourths against defendants 1, 2 and 10 to 12.
2. The plaintiffs have appealed and it is contended on their behalf that the view of the learned Judge on the construction of the pottah and his finding that the dahkilas produced by the defendants prove a division of the tenancy with the consent and knowledge of the landlords are not correct.
3. With regard to the second point, we are Of opinion that it is concluded by the findings of fact arrived at by the Subordinate Judge. He has considered the entire evidence, oral and documentary, and come to the conclusion that it satisfactorily proves that the landlords recognised the separate tenancy of the contending defendants in respect of the 4 annas hissya of the property.
4. But the appellants have raised a point of some nicety in connection with the question of res judicata. It appears that the plaintiffs or their predecessors obtained two ex-parte rent decrees against the defendants, one in 1903 and the other in 1914. These decrees were joint decrees against all the defendants in respect of the entire rent. It is argued as a result of these decrees, that the defendants are estopped from setting up the case of a separate tenancy. I have considered this matter carefully and I am of opinion that this contention ought to prevail. It appears that in the suit of 1914 these defendants did enter appearance but were absent on the day the case was heard and it was decided ex parte. I have looked into the plaint in that suit and it appears that the claim of the plaintiffs was in respect of the entire rent, and the first prayer in the plaint was that a decree might be passed for the amount claimed against the defendants. A decree was accordingly passed. We are not aware as to what plea the defendants raised in that case, but in the present suit they maintain that they are entitled to object to a, joint decree on the ground that their tenancies are separate from those of the other defendants. The question that really arises is as to how far the ex parte decree would operate as res judicata as regards the present contention of the defendants. It is maintained by them that the question of separate tenancy was not a question which might and ought to have been raised in the previous suit within the meaning of Explanation IV of Section 11, Civil Procedure Code, In my judgment it is a question which should have been raised in defence in the previous suit. It is difficult to lay down hard and fast rules as to what question should be regarded as questions that ought to have been raised in the previous suit. But there are several tests which have been applied from time to time when such questions have come up for decisions. One of the tests is whether by raising the question the decree which was passed in the previous suit could have boon defeated; varied or in any way affected. If the question is of such a nature, it must be deemed to be a question which ought to have been raised in the previous suit Reliance has been placed by the respondents on the case of Modhusudhan Shaha v. Brae (1889) 16 Cal. 300 (F.B.). In that case, which was decided by a Full Court, it was held that a mere statement of an alleged rate of rent in the plaint in a rent suit in which an ex parte decree has been obtained is not a statement as to which it must be hold that it raised an issue between the parties within the meaning of Section 13 of the old Code of Civil Procedure. The ground of that decision is that if the plaintiff claims a certain amount as representing the rent which is due to him and in the plaint gives an account of the amount claimed according to certain rate of rent and in the prayer claims; a decree for the amount claimed by him, the ex parte decree (should not operate as res judicata with regard to the rate of rent unless there is a direct issue on the point and there is a distinct prayer for a declaration of the rate of rent. One of the reasons assigned for the view taken by the Court is that the plaintiff may be entitled to the amount claimed on account even though the rate of the rent claimed by him be not correct. I do not think that that case has any bearing on the present question. If it has any, it is in favour of the appellants. It lays down that if it is prayed in the plaint that a certain right on which the suit is brought is to be declared in favour of the plaintiff that may create res judicata. In the previous rent suit the prayer in the plaint was that a decree for the rent claimed may be passed against the defendants which means that a joint decree may be passed against all the defendants and the decree passed gave effect to that prayer.
5. The case which is next relied upon is the case of Woomesh Chandra Maitra v. Barada Das Maitra (1900) 28 Cal. 17. In that case in the previous suit rent was decreed at a certain rate which included illegal cesses. It was held that in a subsequent case it is open to the defendant to object to the amount of rent claimed on the ground that it included illegal cesses. That case may be supported on the well-known principle that there cats be no estoppel against a statute and what is illegal in law cannot be legalised by operation of the doctrine of res judicata. Though some observations in that case are quite general, the ratio of that decision is the finding that the illegal cases were never made part of the rent. The learned Judges rely upon the decision of Mr. Justice Banerjee in the case of Kailash Mondul v. Barada Sundari Dasi (1897) 24 Cal. 711 which is said to hold that the subject-matter of two rent suits for different periods being different, the law of res judicata will not apply. By the expression 'the subject-matter of the two suits being different.' I understand it was meant that the rent claimed for two different periods must be taken to be two different matters. In the case of Kailash Mondul (1897) 24 Cal. 711 the plaintiff had obtained a decree for rent against the defendant who had raised various pleas but not the plea which he raised in the second case, namely, that the plaintiff was a benamidar. The learned Chief Justice (Sir Francis Maclean) on these facts held that the decision in the previous suit would not operate as res judicata and one of the grounds he gave was this:
It is possible that the matter he (the defendant) now desires to sot up may not have been within the knowledge of the defendant in 1878. Can we say then that he (the defendant) is debarred from going into those matters now? I think not.
6. The learned Chief Justice further observed that the previous proceedings were not placed before the Court and so the Court could not say whether that; point was raised in it or not. Mr. Justice Banerjee no doubt used certain expressions which are capable of supporting the view that in rent suits the subject-matters must ex necessitate be different. I am unable to agree in this view of the law if that case really expresses it. If it is adopted, it would mean that the principle of res judicata can never apply to rent suits because in all rent suits the period for which rent is claimed must be different-a view in conflict with accepted conceptions of law. This case, however, has been cited with disapproval in Jamadar Singh v. Serazuddin Ahamad (1908) 35 Cal. 979. In my opinion, the view taken in this cane seems to be the correct interpretation of Section 11, Civil Procedure Code. On another point Mr. Justice Banerjee's decision in the case of Kailash Mondul (1897) 24 Cal. 711 has been dissented from by the Acting Chief Justice in the case of Jamadar Singh (1908) 35 Cal. 979. Mr. Justice Banerjee had put a too narrow construction upon the words of Explanation II to Section 13 of the old Code, to the effect that a matter may be one which might and ought to have been raised in the former suit; but if it is not decided in that suit it would not operate as res judicata. I think that the correct view is that when a matter which ought to have been raised was not raised it must be taken to be a matter which also ought to or must have been heard and finally decided in the previous suit. Reference may also be made in this connection to the case of Hiranmoy Kumar Shaha v. Ramjan Ali Dewan  43 Cal. 170. It was held in that case that a decree for rent passed ex parte is not merely an item of evidence but is conclusive as to the relationship between the parties. According to the dicta in the cases of Woomesh Chandra Maitra (1900) 28 Cal. 17 and Kailash Mondul (1897) 24 Cal. 711 to which I have referred, the subject-matters of two different rent suits being different, the decision in the form or suit will not operate as res judicata in the subsequent suit for any purpose with the result that all the points decided in the previous case will be open for discussion in the subsequent case. But according to the decision in the case of Hiranmoy Kumar Shaha v. Ramjan Ali Dewan  43 Cal. 170 the question as to the relationship of landlord and tenant must be taken to be res judicata in the subsequent suit. It therefore follows that the decision in a previous suit for rent, whether ex parte or inter partes, operates as res judicata in a subsequent suit for rent, even for a different period, if it decides any question which arises in the suit or if it omits to decide any question which ought to have been decided if objections were taken by a party. In this view I hold that the plea of res judicata ought to prevail and the defendants are estopped from now contending that they hold a separate tenancy under the plaintiff's.
7. The result of the foregoing conclusion is that this appeal succeeds, the decree of the lower Appellate Court is set aside and that of the Court of first instance restored with costs.
8. I agree, but I would simply decide this appeal on the third point, namely res judicata. It appears to me that in the previous suits the plaintiffs clearly brought the suits on the assumption that all the defendants were jointly and severally liable for the whole rent. Before that, it is said, according to the plaintiffs, that the plaintiff's predecessors admitted a separate 4 annas share as belonging to these two appellants, It is not necessary to decide whether this was so or not if the case is decided on the basis on which I would decide it namely, on the question of res judicata. In the previous suits of 1903 and 1914, as I have said, the plaintiffs made their claim against all the defendants jointly and severally. These defendants did not appear at all in the first suit. In the second suit they appeared but put in no defence and then withdrew and if they wished to set up the point they now urge, they could obviously have done so and they not having done be under Section 11, Civil Procedure Code their claim to have that matter re-opened is barred by the principle of res judicata. I therefore agree with the order which my learned brother proposes to pass.