R.C. Mitter, J.
1. This appeal is on behalf of the defendants in a suit instituted against them by the plaintiff for recovery of possession of some plots of land and for confirmation of possession on others. The learned Munsif decreed the suit, but on appeal the learned Subordinate Judge dismissed the plaintiff's claim for possession in respect of plot No. 4 but decreed his claim for possession of the other plots. The defendants have preferred this appeal against the said decree. In my judgment the appeal must succeed and the plaintiff's suit must be dismissed in its entirety.
2. To follow the controversy between the parties the following facts are relevant. One Gopal Samanta, the father of the defendants held an area of 2 bighas 19 cottas 12 chittaks of land as a tenant under the plaintiff. The lands in suit were admittedly comprised in the said tenancy. Gopal died in December, 1925. After his death the plaintiff dispossessed Gopal's sons, the defendants, from plot No. 4 of this suit and settled it with Gopal's brother. The defendants in this suit as plaintiffs instituted a suit against the plaintiff of this suit and their uncle. That said suit was numbered Title Suit No. 394 of 1926. In the plaint Gopal's sons stated that Gopal's tenancy consisted of 9 plots and that plot No. 4 from which they had been dispossessed was included in Gopal's tenancy to which they had succeeded by inheritance on the death of Gopal. They prayed for declaration of title and on such declaration for possession of plot No. 4. The respondent before me, who was there defendant No. 2, pleaded that Gopal had surrendered his tenancy and after surrender had taken a settlement for three years anly of plot No. 5, whereon he had built his hut. The said suit was decreed, the Court finding that the story of surrender and fresh settlement of plot No. 5 only to Gopal was a false story.
3. The judgment shows that the Court found that the tenancy of Gopal, as set up by his sons, was subsisting and had not been extinguished. The decree made was in these terms: 'The suit is decreed with costs. Plaintiff's title to the lands in suit according to the admitted kabuliyat is hereby declared and the plaintiffs do get possession of the same by evicting the defendant.'
4. The respondent before me has instituted this suit on the basis that Gopal was an under-raiyat and that under-rayati holdings being not heritable his sons have no right to the lands. The question is whether this line of attack is now open to the plaintiff-respondent.
5. As Suit No. 394 of 1926 could have been defeated by the plea which is now made the ground of attack by the plaintiff-respondent I bold that it was incumbent on him to set up that defence in that suit of 1926. He 'might and ought to have raised' the said defence and not having done so his present suit is barred by res judicata.
6. Mr. Ghose on behalf of the respondent had admitted that the case now made by his client in his plaint might and ought to have been urged by way of defence in the suit of 1926; but he says that the judgment of that suit is res judicata only with respect to plot No. 4, the subject-matter of that suit, and is not res judicata in respect of the other plots included in Gopal's tenancy. He says that in order that a decision may be res judicata the matter in issue must be heard and decided finally and where constructive res judicata is pleaded a matter cannot be said to be heard and finally decided unless there be an identity of the subject-matter of the two suits. In support of his contention he relies upon the cases of Kailash Chandra v. Barada 24 C 711 : 1 C W N 565 as explained in Rajendra v. Tarangini 1 C L J 248 and Surjiram Marwari v Barhamdeo 1 C L J 337. In my judgment after the judgment of Lord Phillimore in Fateh Singh v Jagannath Bakhsh Singh the proposition cannot be stated in such broad form. The correct principle seems to me to be that if the decree made in the earlier suit is such as would be inconsistent with the plea which might and ought to have been raised, but not actually raised, it must be taken that there has been, for the purpose of res judicata, a final decision by necessary implication. Actual decision on a plea not taken cannot be possible and unless the principle be as formulated the rule of constructive res judicata as formulated in Section 11 of the Code would be rendered almost nugatory. In questions of res judicata identity of the issues and not identity of the subject-matter is relevant. To hold that there would not be a constructive res judicata unless the subject-matter be identical would be to introduce in Expl, IV to Section 11 of the Civil Procedure Code words which are not to be found there. I would hold that the correct principle has been formulated by Suhrawardy, J. in Shib Chandra v. Lakhipriya Guha : AIR1925Cal427 and I follow the said decision being in consonance with the observations of Lord Phillimore, in Fateh Singh's case (4). In the case before me the defendant-appellants obtained in the suit of 1926 a declaration of their title on the basis of their father's kabuliyat that is, they got relief on the declaration that the right which their father had in the lands included in the said kabuliyat had devolved upon them by inheritance. The plea on which the plaintiffs-respondents have come to Court now, would, if given effect to, have the effect of nullifying the decision of the said suit, and must, therefore, be held inadmissible.
7. The appeal accordingly succeeds and is decreed with costs. The plaintiff's suit is dismissed with costs to the defendants throughout. Leave for appeal under the Letters Patent asked for is refused.