1. This appeal arises out of a suit for ejectment.
2. The plaintiff brought a suit alleging that he was a raiyat and that the defendant was an under--raiyat upon whom he had served a notice under Section 49 of the Bengal Tenancy Act. The defence was that the defendant was an occupancy raiyat, that even if in fact he was an under-raiayt, he had by custom acquired a right of occupancy and that the notice was not valid or sufficient.
3. Before the present suit, there had been another suit by the same plaintiff against the same defendant for the same relief. In that suit, the learned Munsif found that no notice had been served. Issue No. 3 in that suit was, 'Have the plaintiffs occupancy right to the land in suit and is the defendant an under-raiyat under the plaintiffs,' and issue No. 4 was, 'Has the defendant any right of occupancy to the lands in dispute and is he liable to be ejected? 'With regard to these issues, the learned Munsif said, In view of my above findings, it is not necessary' that these issues should be decided; but as the case was appealable, he expressed his opinion upon these points that the defendant was an under-raiyat and had not made out the custom under which he claimed to have acquired a right of occupancy. The Courts below relied upon this judgment as operating to exclude a decision in this case of the same question by the principles of res judicata. The learned Munsif excluded evidence with regard to the status of the defendant and the learned Subordinate Judge affirmed the decision of the Munsif on that point.
4. The principal question in appeal before us is, whether the Courts below were right in excluding evidence with regard to the status of the defendant on the ground of res judicata.
5. Reliance was placed by the appellant on the cases of Run Bahadur Singh v. Lucho Koer 11 C. 301 : 12 I.A. 23 : 4 Sar. P.C.J. 602: 9 Ind Jur. 202 (P.C.); Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee 13 C. 17 and Thakur Magundeo v. Thakur Mahadeo Singh 18 C.647. These cases, we think, do support the contention of the appellant in this case.
6. The decree in the previous suit was inspite of the finding in favour of the plaintiff as to the status of the defendant. As was held in the case before their Lordships of the Privy Council and in the other cases cited above, the finding upon a point which was not the basis of the decree and which was not entered in the decree so as to admit of an appeal by the party aggrieved, cannot be considered to have been finally decided so as to operate as res judicata. In fact upon the finding on the question of notice, it was not necessary to come to a finding on the status of the defendant; and in that view, it may be said that the question which was substantial at first was no longer substantial.
7. The learned Vakil for the respondent has relied on the cases of Niamut Khan v. Phadu Buldia 6 C. 319 : 7 C.L.R. 227 and Peary Mohun Mukerjee v. Ambica Churn Bandopadhya 24 C. 900.
8. As regards the first case, it has been held in Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee 13 C. 17 and Thakur Magundeo v. Thakur Mahadeo Singh 18 C.647 that the Full Bench ruling in Niamut Khan v. Phadu Buldia 6 C. 319 : 7 C.L.R. 227 has been overruled by the Privy Council in the case of Run Bahadur Singh v. Lucho Koer 11 C. 301 : 12 I.A. 23 : 4 Sar. P.C.J. 602: 9 Ind Jur. 202 (P.C.). As regards the case of Peary Mohun Mukerjee v. Ambica Churn Bandopadhya 24 C. 900 that was a case in which the previous decision was based upon findings upon both the issue of notice and the issue on title and the findings on both the issues supported the decree that was made. The learned Judges who decided that case take it as settled by the cases of Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee 13 C. 17 and Thakur Magundeo v. Thakur Mahadeo Singh 18 C.647 that the Privy Council had overruled the case of Niamut Khan v. Phadu Buldia 6 C. 319 : 7 C.L.R. 227. That being so, we think that the lower Courts are wrong in holding that the question of the status of the defendant was res judicata.
9. The decree of the, lower Appellate Court must, therefore, be set aside and the case sent back to the first Court so that it may be tried in accordance with law, after giving the parties an opportunity of adducing evidence on the question of status, that is, as to whether the defendant is an under-raiyat and whether he has, by custom, acquired a right of occupancy.
10. As regards the question of notice, we think that the lower Appellate Court is right in the view that it has taken.
11. Costs will abide the result.