1. The only question which has been urged on behalf of the appellant in this appeal is whether the decision of an earlier suit operated as res judicata in respect of some of the issues which arose in the subsequent suit, out of which the present appeal arises.
2. The plaintiff Basumati Debi instituted the present suit against Taritbarani Debi the defendant No. 1 and her husband the defendant No. 2, seeking to eject them from a plot of land and for a decree for mesna profits, and in the alternative for a decree for rent in case it was found that she was not entitled to eject them.
3. Taritbarani had instituted a suit for a deolaration of her right of way as a prescriptive right or an easement of necessity against one Chedi Dosadh a tenant under Basumati and also two persons as pro forma defendants of whom Basumati was one being the defendant No. 3 in that suit. In that suit no relief was claimed against her. She, however, contested the suit and amongst other things, contended that Taribbarani was her tenant and so could not claim a prescriptive right against her. The Court of first instance held that Taritbarani's claim was barred by limitation and she had not acquired any right of easement and in that view dismissed her suit but held further that Basumati failed to prove that Taritbarani was her tenant. Taritbarani appealed against the deoree and Basumati preferred a cross appeal against the finding declaring her liability to prove that Taritbarani was her tenant. The appellate Court allowed the appeal of Taritbarani and remanded the suit to the Courb of first instance for determination of certain questions which, in the opinion of the appellate Court, arose in the case. Basumati preferred a second appeal to this Court and this Court set aside the order of remand and remitted the appeal to the lower Appellate Court to be dealt with in accordance with certain observations made in its judgment. This Court in setting aside the order of remand expressly left untouched the finding that Basumati had failed to prove that Taritbarani was her tenant.
4. The present contention is that the findings on the issues in that suit operated as res judicata in the present suit. It is necessary to set forth the relevant issues in the previous suits.
5. In the previous suit two of the issues were as follows:
No. 4. Has the plaintiff right to sue ?
No. 5. Has the plaintiff a right of easement of way or of necessity over the disputed path
6. The Courts below have held, though upon different grounds, that the decision of the issues in the previous suit did not operate as res judicata in the subsequent suit.
7. First of all, I propose to examine the grounds upon which the learned Subordinate Judge held that the previous decision will not operate as res judicata. The learned Subordinate Judge observes :- 'The decree passed in the previous suit was not based on this finding but was passed in spite of it. It cannot be said that this Question was heard and finally determined. The decision on the question of relationship of landlord and tenant between the parties in the previous suit was not final: See Thakur Magundeo v. Thakur Mahadeo Singh (1891) 18 Cal. 647. The decree in the previous suit was in favour of the present plaintiff. She had no right of appeal. The fact that she preferred a cross-appeal cannot affect the question, as it was unnecessary for her to do so, inasmuch as this finding could not subsequently be held to be conclusive against her because the decree of the Court below was not based upon the finding but in spite of it. [See the observations of their Lordships of the Privy Council in Bun Bahadur Singh v. Lucho Koer (1885)11 Cal. 301.] Now with reference to the observations of their Lordships of the Judicial Committee in the case of Bun Bahadur Singh v. Lucho Koer (1885) 11 Cal. 301, the observations should not be taken divested of the facts that appeared in that case. Bead in the light of the facts the observations only mean where after arriving at a conclusive finding on an issue (based, in that case, on the ground that the said finding had been arrived at in a previous litigation and was, therefore, res judicata) the Court proceeds to come to a different finding on the same issue, upon the evidence in the case, and bases its decision not on the latter, but on the former finding the latter useless finding can-not operate as res judicata in subsequent proceedings. There are certain passages in the judgment which, stripped of the facts of the case, may have been understood as supporting the proposition so broadly laid down in some oases that if a plaintiff's suit is ultimately dismissed, no finding in his favour can ever be res judicata under any circumstances. This proposition, in my opinion, goes far beyond the scope of the decision. If the finding was not necessary, at all, or was not intended to be final, or if, on appeal, the Appellate Court does not think it necessary to give its decision on it but finds it unnecessary to act on it for the purpose of its decision the finding will not, of course, operate as res judicata. I am unable to accept as correct the decision in the case of Thakur Magundeo v. Thakur Mahadeo Singh (1891) 18 Cal. 647 and the other decisions of this Court in which a contrary view has been taken. These decisions, in my opinion, cannot be reconciled with the decision of a Full Bench of this Court in Niamut Khan v. Phadu Buldia (1881) 6 Cal. 319. In my opinion the decision of this Court in Nundo Lall Bhuttacharje v. Bidhoo Mookhy Dibee (1886) 13 Cal. 17 was wrong in so far as it professed to hold that the said decision of the Full Bench in Niamut Khan v. Phadu Bhuldia (1881) 6 Cal. 319 was impliedly overruled by the decision of the Judicial Committee in Run Bahadur Singh v. Lucho Koer (1885) 11 Cal. 301. I am aware of the view taken by this Court in the case of Peary Mohan Mukerjee v. Ambica Churn Bandopadhy (1897) 24 Cal. 900, where Banerji, J., observed that it may be taken as settled on the authority of the oases of Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Dibee (1886) 13 Cal. 17 and Thakur Magundeo v. Thakur Mahadeo Singh (1891) 18 Cal. 647 that the authority of the Full Bench decision in Niamut Khan v. Phadu Buldia (1881) 6 Cal. 319 has in effect been overruled by the decision of the Judicial Committee in the case of Run Bahadur Singh v. Lucho Koer (1885)11 Cal. 301. If my decision in the present case had to rest upon the view that I take of these authorities I would have felt bound to send the case to be dealt with by a Regular Division Bench; but I do not find it necessary to do so for reasons which will appear hereafter. It will be seen that there is, no clause attaching to Section 11 of the C.P.C., laying down that the decision of the issue should have been the basis of the decree. It is enough that the issue had been finally heard and determined and that it arose directly and substantially (and not incidentally or collaterally), for determination and that only means that it was necessary for the determination of the suit though it may not have been ultimately made the basis of the decree. Of course if the determination of the issue is inconsistent with the decree, it cannot be said that it was necessary for the determination of the suit, and such a finding will be treated as unnecessary and will not operate as res judicata. In the case of Krishna Behari Roy v. Bunwari Lal Roy (1875-76) 1 Cal. 144, their Lordships of Judicial Committee observed that) the general law of res judicata had probably never been better laid down than in the case of Gregory v. Molesworth (1747) 3 Atk. 627 in which Lord Hardwicke held 'that where a question was necessarily decided in effect though not in express terms between parties to the suit, they could not raise the same question as between themselves in any other suit in any other form.' This law was followed in a long course of decisions, the greater part of which will be found noticed in the notes of Mr. Smith in the case of the Duchess of Kingston (1776) 20 Howell St. Tr. 537. This general law was taken as supplementing the law contained in Section 2 of Act VIII of 1859 which ran as follows:-'The Civil Courts shall not take cognizance of any suit brought on a cause of action which shall have been heard and determined by a Court of competent jurisdiction in a former suit between the same parties or between the parties under whom they claim,' [see Soorjomonee Dayee v. Suddanund Mohapatter (1873) I.A. Sup. Vol. 212 and Krishna Behari Roy v. Bunwari Lall Roy(1875-76) 1 Cal. 144]. Section 13 of Act X of 1877 ran in these terms :-'No Court shall try any suit or issue in which the matter directly and substantially in issue has been heard and finally determined by a Court of competent jurisdiction in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title.' This was construed by their Lordships of the Judicial Committee in the case of Bun Bahadur Singh v. Lucho Koer (1885) 11 Cal. 301, as not having altered the law as contained in the somewhat imperfect Statute of 1859 supplemented by the general law. The language of this part of the section of Act XIV of 1882 and in Act V of 1908 needs no examination as substantially the provisions have remained unaltered. The general principles of law were invoked by the Judicial Committee in the case of Ram Kirpal v. Rup Kuari (1884) 6 All. 269, where Section 13 of Act X of 1877 was not applicable and also in the case of George Henry Hook v. Administrator-General of Bengal A.I.R. 1921 P.C. 11 in a case which did not come within Section 11 of Act V of 1908. In the latter case it was held that it is an error to regard all questions of res judicata as being governed by Section 11 of the C.P.C., and that section only prevents the retrial of issues that have been directly and substantially in issue in a former suit between the same-parties. Where the ground of the plea of res judicata comes within the scope of that section it will not be permissible to travel beyond the enactment but the Court will have to confine itself to the provisions of the Statute. As has been laid down by the Judicial Committee in the case of Gokul Mandar v. Pudmanund Singh (1902) 29 Cal. 707: 'In this respect (dealing with the aspect of the question arising under Section 13 of Act XIV of 1882) the enactment goes beyond Section 13 of the previous Act X of 1877, and also, as appears to their Lordships, beyond the law laid down by the Judges in the Duchess of Kingston (1776) 20 Howell St. Tr. 537. They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.' Turning then to the character of the issues decided in the previous suit,, and testing them in the light of the provisions of Section 11 of the C.P.C., I am clearly of opinion, following the decision of Banerjee. J, in the case of Peary Mohun Mukerjee v. Ambica Churn Bandopadhya (1897) 24 Cal. 900 cited on behalf of the appellant that the determination of the issues arising in the former suit was necessary for the purpose of that suit and merely because the decision did not ultimately happen to turn on it, that would not be sufficient to oust the operation of the rule. As to the case of Shib Charan Lal v. Raghu Nath (1895) 17 All. 174 to which I was referred on behalf of the respondent I may say that for the reasons given by Banerji, J., in the decision just above referred to, I cannot accept that decision as laying down good law.
8. Next I propose to deal with one of the several objections, which independently of and in addition to those noted by the learned Subordinate Judge were taken on behalf of the respondent. It was contended that the very fact that Basumati was merely a pro forma defendant in the previous suit stood in the way of the operation of the doctrine. In that behalf re-liance was placed upon the decision of a Full Bench of this Court in the case of Brojo Behari Mitter v. Kedar Nath Mozumdar (1886) 12 Cal, 580 (F.B.). That case, however, may he readily distinguished from the present case on the ground that here there was a seal contest between Basumati and Tarifc-barani which was taken up to the High Court. Basumati had no business to come in, yet she did come in and contest the suit; though she need not have appealed yet she did file a cross appeal. The matter is one of substance and not of form. It matters not that the defendant is described as pro forma defendant if there was a real contest, and that notwithstanding that the contest was opened by the defendant and not by the plaintiff. In the caseof Mohendra Nath v. Shamsunnessa (1915) 21 C.L.J. 157, Mookerji, J., observed as follows: ' As regards the second reason, the vital point is not, bow the Ghosal defendant was described, but what part he took in the litigation. He not only helped the tenant-defendant with funds, but himself actively contested the claim of the then plaintiff, as is indicated by his appeal to the High Court, though he was described merely as a pro forma defendant. In such circumstances, he could not reasonably escape the effect of an adverse decision which he unsuccessfully resisted.' In the case of Gobind Chunder Koondoo v. Taruck Chunder Bose (1877-78) 3 Cal. 145, a Full Bench of this Court dealing with the case of a defendant who had intervened observed as follows: ' On the other hand, it is argued by the appellant, that the claim in the former suit was for rent against the tenant; that the only issue in that case was whether the plaintiff was entitled to the rent, and the question of title raised by the intervening defendant was only incidental to the main issue. But as between the plaintiff and the intervening defendant the question and the only question, was that of title, and as the defendant in that suit chose to intervene and to raise that question between himself and tha plaintiff he, and those whom he represented must take the consequences of their intervention.' The mere fact that Basumati was a pro forma defendant in the previous suit will not affect the question, if other wise the principle may operate.
9. The next question is based upon the ground on which the learned Munsif held that the previous decision did not operate as res judicata ; and that ground has also been relied upon by the respondent. In order to consider that question it is necessary to analyse the provisions of Section 11 of the C. P. C. NOW, under that section apart from the identity of title, the competency of the Court, the finality of tha decision and the identity of the parties, matters which do not arise for consideration in the present case, the matter directly and substantially in issue in the subsequent suit or issue, must be the same matter which was directly and substantially in issue either actually (as in Expl. III) or constructively (as in Expl.IV) in the former suit. The appellant's contention is that Expl. III does apply to the present case. We have, therefore, to see whether the matters in issue in the subsequent suit were actually and directly and substantially in issue in the previous suit or whether they were merely collaterally or incidentally in issue therein.
10. There can be no question that in the subsequent suit the issues relevant to this enquiry are 1st: Whether Basumati had title to the disputed land (Part of Issue No. 4 as framed). 2nd: Whether Tarit barani was a benamidar for her husband (Part of Issue No. 3). 3rd : Is the plaintiff entitled to eject or in the alternative to claim any rent from Taritbarani? (Issue No. 9). In the earlier suit Issues Nos. 4 and 5 were as follows: 1st: Has the plaintiff the right to sue, and 2nd: Has the plaintiff a right of easement of way or necessity over the disputed path? These two issues were, respectively, No. 4 and No. 5 in the said suit. In deciding issues Nos. 4 and 5 the learned Munsif decided two questions, 1st: Whether Taritbarani was a benamidar, and 2nd: Whether she was a tenant under Basumati. These two Questions did not, in my opinion, directly and substantially arise in the previous suit but collaterally or incidentally for the determination of Issues Nos. 4 and 5 referred to above. In the case of Srihari Banerjee v. Khitish Chandra Rai Bahadoor (1897) 24 Cal. 509, a suit was brought by A against B and others for rent; the matter directly and substantially in issue was as to what the share was for which A was entitled to rent. The plaintiff obtained a decree for the whole rent. In a subsequent suit by B and others against A for declaration of title to land purchased by them in execution of their mortgage-decree, the defence was that the former decree for rent operated as res judicata. It was held that as the issue in the rent was for what share the plaintiff was entitled to rent and not to what share of the property was the plaintiff entitled as owner, the question of tibia could be said to have been in issue in that suit only incidentally and not directly, and it could not be said to have been entertained in the form in which it was raised in the subsequent suit. The question of title of Basumati or of Taritbarani did not arise in the previous suit in the shape in which it has arisen in the present suit. The pleadings of the parties in the earlier suit as noticed in the judgments therein have got to be examined in order to see in what shape the different questions arose. See Indubala Debi v. Atul Chandra Ghosh (1920) 31 C.L.J. 507. It would appear from an examination of the pleadings that) in the earlier suit it would have been enough to hold that Taritbarani held under Basumati in order to defeat the claim of Taritbarani but in the present suit it would be necessary to adjudicate on the titles of the two parties in order to find whether the interests of the respective parties were such that Basumati could eject Taritbarani and recover khas possession, or in case of the titles being such as to establish a subsisting relation ship as between a landlord and her tenant one could recover rent from the other; in the previous suit the question as to whether Taritbarani was a benamidar was gone into in order to determine whether & cause of action lay in her for the purpose of instituting a suit for enforcing an easement, in the present suit that question was necessary to be determined in order to see if it would enable her to resist an action in ejectment or oppose a decree for rent. These purposes make the question for investigation essentially distinct in. character and if they arose in the previous suit they arose not directly and substantially but only incidentally or collaterally.
11. The view I take is in accord with that taken by this Court in the cases of Gober Sheikh v. Alipuddin Sheikh (1919) 30 C.L.J. 13 and Indubala Debi v. Atul Chandra Ghosh (1920) 31 C.L.J. 507.
12. In my judgment then the decisions of the questions are not in bar not by reason of the fact that Basumati was a pro forma defendant in the previous suit, nor because the decision of the earlier suit ultimately turned upon a different question, nor because the questions were not heard and finally determined, nor because the determination of those questions was unnecessary, but because they arose not directly and substantially but only incidentally or collaterally.
13. In this view of the matter the appellant's contention fails and this appeal must be, and the same is hereby dismissed with costs.