1. We think that the Courts below were wrong in holding that the decision in the previous suit operated as res judicata upon the question whether the defendant had a permanent tenancy or not.
2. In the previous suit for ejectment the defendant pleaded that he was a permanent tenant and that the suit must fail as no notice to quit was served upon him.
3. The Court in that suit held that the suit must fail for want of notice to quit. It also came to the finding that the defendant had failed to prove that he had a permanent tenancy. The decree was one of dismissal and was in favour of the defendant in spite of the adverse finding against him with regard to the question of his status. The defendant, therefore, could not appeal against that finding.
4. In these circumstances, the decree could not operate as res judicata on the question whether the defendant had a permanent tenancy or not [see the cases of Run Bahadur Singh v. Lucho Koer 11 C. 301 (P.C.) : 12 I.A. 23 : 4 Sar. P.C.J. 602 : 9 Ind. Jur. 202 : 5 Ind. Dec.. (N.S.) 960, Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debes 13 C. 17 : 6 Ind. Dec. (N.S.) 508, Thakur Magundeo v. Thakur Mahadeo Singh 18 C. 617: 9 Ind. Dec. (N.S.) 432 and Parbaty Debya v. Mathura Nath Banerjee 15 Ind. Cas. 453 : 16 C.W.N. 877 at p. 879 : 40 C. 29 : 16 C.L.J. 9. ] This is not a case there the decision is based on two grounds either of which is sufficient to support the decree, in which case the question would arise whether the decision upon each of the grounds is conclusive between the parties [see Peary Mohun Mukerjee v. Ambica Churn Bandopadhya 24 C. 900 : 12 Ind. Dec. (N.S.) 1269].
5. It appears that the Court of first instance, before the trial came on, recorded an order that the judgment and decree in the suit were binding upon the parties and that it would consider only the question of notice and compensation. That being so, the question as to the nature of the defendant's tenancy must decided on the merits.
6. The question of service of notice and compensation has been gone into. All other questions in the suit including the question as to the sufficiency of the notice will be decided by the Court. It will be open to both parties to adduce further evidence in the case.
7. The case will accordingly be sent back to the Court of first instance to be dealt with in accordance with the observations made above.
8. Costs to abide the result.