T. Ramabhadran, J.C.
(1) This is an appeal, by two defendants, namely, the Union of India and the State of Himachal Pradesh, against the judgment and decree of the Senior Subordinate Judge, Mahasu, in a suit for the recovery of a sum of Rs. 7,564/-, instituted under the provisions of Section 78 of the Punjab Land Revenue Act, as applied to Himachal Pradesh. The appeal arises under the following circumstances:
(2) In 1912 A. D., the plaintiff-respondent, Mr. Goldstein, purchased land, measuring 19 bighas 18 biswas in village Pagog, Koti State, from three persons, named Thakar Das, Ram Das and Gauri Datt, and built a residential house, a cottage, some outhouses thereupon and utilized the rest of the land for agricultural purposes. The transaction was, however, completed without the sanction of tile Koti Darbar, as was necessary in those times.
Consequently, in the State revenue records, Mr. Goldstein's possession was shown as 'under dispute'. Ground rent at the rate of Rs. 199/- per (annum was imposed by the Koti Darbar upon these properties (known as Bromley Estate), but right upto 1947 A.D., when Koti State was merged in Himachal Pradesh, no payment was made by Mr. Goldstein, despite repeated demands. Subsequent to merger, the Collector of Mahasu adopted coercive measures under the provisions of the Land Revenue Act and the estate was put up to sale.
To save the property from auction,, Mr. Goldstein paid an amount of Rs. 7,904/- to the Collector of Mahasu, under protest. Thereafter, Mr. Goldstein filed the suit, out of which this appeal has arisen, for the recovery of a sum of Rs. 7,564/-under the provisions of Section 78 of the Land Revenue Act, after deducting a sum of Rs. 700/-, which, according to him, was due to the Government, by way of land revenue. The plaintiff's case was that, apart from land revenue at the rate of Re.1/- per bigha, no other sum by way of ground rent etc. was payable by him and, therefore, the amount paid by him, under protest, to the Collector of Mahasu, should be refunded to him.
(3) The suit was resisted by the defendants on various grounds. Inter alia, it was contended that the civil Courts, had no jurisdiction to try the suit with regard to the validity of the levy of ground rent, as the same had been imposed by the Koti Darbar. In the second place, it was urged that the matter at issue had already been decided by the Senior Subordinate Judge of Mahasu, by his judgment dated 20-4-1951 in a suit inter partes and, therefore, it could not be reagitated, being barred by the principles of res judicata.
On merits, it was stated that the Collector of Mahasu was perfectly justified in recovering the arrears of ground rent and, therefore, the plaintiff was not entitled to any refund. The plaintiff's contention that he was liable to pay only Re. 1/- per bigha, by way of land revenue, was not accepted.
(4) On these premises, six preliminary issues were framed by the then Senior Subordinate Judge (Mr. Lachman Das). These preliminary issues were disposed of by Mr. Hem Chand on 26-4-1954 in the following manner: He held that the jurisdiction of the civil Courts was not barred, that ground rent had been demanded under some order, oral or written, of the Koti Darbar, that the Ruler's order could be challenged in a civil Court and the suit was not barred by the principles of res judicata.
(5) Thereafter, the evidence of the parties was recorded on the remaining issues, i.e. issues on the merits of the suit. For reasons stated in his judgment dated 25-11-1954, Mr. Hem Chand, Senior Subordinate Judge, decreed Mr. Goldstein's suit as against the two defendants. In doing so, he expressed his view that the levy of ground rent was illegal. It is against this decree that the Union of India and the States of Himachal Pradesh have come up in appeal.
(6) Arguments of the learned counsel for the parties were heard at considerable length on the 23rd, 24th and 27th instant. For reasons to be stated shortly, I have come to the conclusion that this appeal must succeed.
(7) Two main points arise for determination in this appeal. They are: (A) Whether the suit, giving rise to this appeal, was barred by the principles of res judicata? (B) Whether the recovery of ground rent from the plaintiff was illegal. I shall take up these two points seriatim.
(8) (A). Learned counsel for the appellants invited my attention to the decision of Mr. Om Prakash, formerly Senior Subordinate Judge of Mahasu, in suit No. 86 of 1949 (Felix Von Gold-stein v. State of Himachal Pradesh) decided on 20-4-1951. That was a suit by Mr. Goldstein for a declaration that the Bromley Estate properties were not liable for the payment of ground rent, or sanitary tax, and for a perpetual injunction, restraining the defendant from recovering the said taxes.
It was stated in the plaint of that suit, that the Koti Darbar had imposed ground rent at the rate of Rs. 199/- per annum plus sanitary tax at the rate of Rs. 30/- per annum. After the merger of Koti State in Himachal Pradesh, the Collector of Mahasu district demanded the arrears of ground rent and sanitary tax and adopted coercive measures. The plaintiff sent a cheque for Rs. 647/8/- to the Collector as land revenue, but the cheque was returned. Mr. Goldstein served a notice under Section 80, Civil Procedure Code, on the defendants, but they refused to admit the illegality of the demands.
Consequently, Mr. Goldstein filed that suit. That suit was resisted by the Province of Himachal Pradesh inter alia, on the grounds (a) that no valid notice under Section 80, Civil P. C., was served upon it. (b) The order of the Koti Darbar, imposing ground rent and sanitary tax could not be challenged in a civil Court and (c) under Section 158 of the Land Revenue Act, the Civil Court had no jurisdiction to try the suit.
(9) The learned Judge (Mr. Om Prakash) held that (a) the notice under Section 80, Civil P. C., was defective and invalid; (b) the civil Court could not go into the question of validity of the imposition of ground rent, as the same had been imposed by the Koti Darbar, but it could deal with the question of the legality of the imposition of the sanitary tax as the same had not been imposed by the Darbar and (c) the civil Court had no jurisdiction to try the suit in so far as it related to the imposition of the ground rent, vide Section 158, Punjab Land Revenue Act.
(10) In the result, Mr. Om Prakash rejected the Plaint under Order 7, Rule 11 (d), Civil P. C.
(11) The learned Government Advocate, vehemently, urged that in the faces of these findings and the rejection of the plaint by Mr. Om Prakash, the present suit was not maintainable, being barred by the principles of res judicata. Mr. Hem Chand, however, felt that since the plaint had been rejected under Order 7, Rule 11, only the point of jurisdiction had been decided and the findings given on other issues by Mr. Om Prakash were merely obiter and, therefore, would not amount to res judicata.
(12) After hearing learned counsel for the parties and considering the authorities, cited on either side, I have come to the conclusion that Mr. Hem Chand's finding on the plea of res judicata cannot be supported. While dealing with this issue, Mr. Hem Chand has remarked:
'The Court in this case had no jurisdiction to try the suit and, naturally, it had no jurisdiction to try the issue concerned. Even my learned predecessor has, in clear words, said that the suit was not cognizable by him and he, therefore, rejected the plaint under Order 7, Rule 11, Civil P. C'.
(13) The mere fact that the plaint was rejected under Order 7, Rule 11 shows that Mr. Om Prakash was not content with merely deciding the question of jurisdiction, otherwise he would not have rejected the plaint under Order 7, Rule 11, but returned it under Order 7, Rule 10. It is also noteworthy that, in the operative portion of the judgment, Mr. Om Prakash has said: 'The net result of my findings is that the plaints is rejected under Order 7, Rule 11 (d), Civil P. C.' As already shown, he held that the civil Court was not competent to go into the question of the validity of the imposition of the ground rent, as the same had been imposed by the Koti Darbar. He further held that the suit was barred under the provisions of Section 158 of the Punjab Land Revenue Act in so far as it related to the levy of the ground rent. I fail to see how these findings can be held to be mere obiter.
(14) The following authorities were cited by the learned Government Advocate: (i) M. Vencata-raju v. M. Ramanamma, ILR 38 Mad 158: (AIR 1915 Mad 864 (1) (A), wherein a Division Bench of that High Court held1 that:
'Where a judgment is based on the findings on two issues, the findings on both the issues will operate as res judicata, though the finding on only one would be sufficient to sustain the judgment',
(ii) Midnapur Zemindari Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144 (B). There, the facts were: 'The plaintiff had excluded certain question by the statement of his pleader and the first Court had, therefore, expressly stated that it could not decide it but the defendant expressly urged, in appeal, that the Judge was wrong in not deciding that question, even though his action was based on the plaintiff's adviser's statement and he asked the lower appellate Court expressly to decide it and the Court did decide it'. Under those circumstances, their Lordships held that:
'The question was necessary for the decision of the suit and, therefore, the decision thereon operated as res judicata. It was immaterial that the Court did not refer to that question in its judgment'.
(iii) Dinkar Raoji v. Anant Ganesh, AIR 1928 Bom 349 (C). There, the facts were: 'Plaintiff purchased a property from a mortgagor and sued for redemption. The Court held that the plaintiff was not an agriculturist and the suit was premature having been brought before the expiry of the period of redemption. But the Court dismissed the suit principally on the issue that the sale-deed was hollow and fraudulent.
The appellate Court also treated the hollow-ness of the deed as; a principal issue and dismissed the appeal. After the expiry of the period the plaintiff again sued for redemption. He contended that the previous suit would not operate as res judicata as the decision on the point, whether the plaintiffs were agriculturists, was sufficient to dispose of the suit and the decision on other issues was not necessary'. It was held by Patkar, J., following ILR 38 Mad 158 : (AIR 1915 Mad 864 (1)) (A), under those circumstances, that:
'The decision, in the previous suit would operate as res judicata because of the finding on the principal issue in the first suit that the sale-deed, relied upon, by the plaintiffs, was hollow and fraudulent'.
(iv) Sri Ram v. Umrao Singh, AIR 1930 Lah 690 (D). There, Dalip Singh, J., following AIR 1924 PC 144 (B), indicated as follows:
'It depends upon the facts and circumstances of each case, whether an issue, which, logically may be unnecessary for the decision of a case, is; or is not sufficient to constitute res judicata in the legal sense; it is for the Court, which decided the original suit, to decide what was necessary to be decided for the purposes of that suit. And if a Court has chosen to decide more than what logically may be necessary, for the purposes of the suit, its finding may, nonetheless, be res judicata.'
(v) Mahomed Ismail v. Sharfutullah, AIR 1930 Cal 810 (E). There, Graham and Mitter, JJ., following Radha Binode Mandal v. Gopal Jiu Thakur, AIR 1927 PC 128 (F), were Of the view that:
'When parties go to trial and evidence is given and the Court, at their invitation, decides points, the determination of one of which, might have been sufficient for the disposal of the suit, but which are such as it is open for the Count to base its judgment, among others on one or more of them, the matters, so decided, operate as res judicata'.
(vi) Krishna Chendra Gajapati v. Challa Ramanna, AIR 1932 PC 50(G). There, their Lordships expressed their view that:
'Where a point is not properly raised by the plaintiff but both parties have, without protest, chosen for join issue upon that point, the decision on the point would operate as res judicata between the parties'.
(vii) Karamchand Pursumal v. Vali Muhammad Piroo, AIR 1937 Sind 157 (H). There, the facts were: 'A suit was brought for mesne profits, the right to which depended upon proof of plaintiff's title to certain land. The issue, as regards plaintiff's title to the land was raised and decided against him but the suit was dismissed with regard to mesne profits on concurrent findings of fact relating to accounts and the veracity of witnesses. The plaintiff contended in second appeal that the decision with regard to issue relating to title to land was not necessary''. Under those circumstances, Davis, J. C., and Dadiba C. Mehta, A. J. C., held that:
'merely because the 'suit failed as to mesne profits, the question of title being raised and decided, as being necessary for the decision of the suit, the decision thereof could not be re-agitated again, merely on the ground that its decision was not necessary for the determination of the suit'.
(viii) Kotayya v. Subbaya, AIR 1937 Mad 114 (I). There, following AIR 1924 PC 144 (B) and AIR 1932 PC 50 (G), a learned Judge of that High Court indicated that:
'Though, a finding on an issue may not be necessary for disposal of the suit, yet, if a party invites the decision of the Court on that issue and the Court also considers it necessary to go into it and gives findings thereon, the decision on that issue will constitute res judicata in a subsequent Suit, provided that the party, against whom there was a finding on that issue, would be in a position to carry the matter in appeal.'
An appeal lay against the decision of Mr. Om Prakash as it amounted to a decree within the meaning of Section 2 (2), C. P. C.
(15) In the light of these authorities, it was contended by the learned Government Advocate thalt preliminary issue No. 5 has been wrongly decided by Mr. Hem Chand, i.e. I was requested to hold that the present suit was barred by the principles of res judicata, inasmuch as, it sought to reopen the question of validity of the imposition of the ground rent, which had already been decided by Mr. Om Prakash against the plaintiff. Appellants' counsel also pointed out that the decision of Mr. Om Prakash was open to appeal, but no appeal was preferred by Mr. Goldstein and, therefore, it had become final.
(16) Learned counsel for the respondent on the other hand, relied upon the following authorities: (a) Irawa Laxmana v. Saltyappa Shidappa, ILR 35 Bom 38 (J). There the facts were: 'A previous suit between the parties failed on the ground that the claim was undervalued and the plaintiff, when called upon to pay the deficient court-fees, omitted to do so. There were issues on merits also decided. In a subsequent suit for trial on the same merits, the decision in the first suit was pleaded as res judicata''. Under those circumstances, a Division Bench of that High Court held that:
'The rejection of the suit on the ground of (undervaluation at any stage of it did not make it res judicata for the purposes of a subsequent suit on the same cause of action or litigating the same title;
'Further, that the dismissal of the suit on the ground of undervaluation having been sufficient by itself, the findings on the issues on the merits were not necessary for the decision of the suit and could not have the force of res judicata'.
(b) Abdullah Ashgar Ali Khan v. Ganesh Dass, AIR 1917 PC 201 (K). There, the facts were: 'A and B were partners. The partnership was dissolved and a dissolution deed drawn up. Later on A executed a bond in B's favour for the amount found due by A. A then sued for cancellation of the bond alleging fraud on B's part. B pleaded that the suit for cancellation of the bond alone would not lie, the bond being based on the dissolution deed. The trial Court dismissed the suit holding no fraud was proved. This dismissal was confirmed on appeal. In second appeal, the merits of the case were not gone into but the appeal was dismissed on the ground of defective constitution of the suit. B then sued A on the bond and A contended fraud as before. The Indian Courts held the defence barred by res judicata'. Under those circumstances, their Lordships held that:
'The issue as to fraud was not finally decided in the prior litigation, the second appellate Court, having decided the case on other grounds and hence it was not barred by the rule of res judicata''. Learned counsel for the appellants pointed out that the issue, regarding the validity of the imposition of the ground rent had been finally decided by Mr. Om Prakash and, therefore, this decision is not applicable to the present case.
(c) Bhiku Appa Kura v. Dattatraya Chandrayya, AIR 1947 Bom 392 (L). There, the case had been decided on the fraudulent preference under Sections 53 and 54, Provincial Insolvency Act. Under those circumstances, Lokur, J., held that:
'Finding that there was no cash consideration, being unnecessary does not operate as res judicata'. (d) Shankarlal Patwari v. Hiralal Murarka AIR 1950 PC 80 (M). That appeal arose out of a suit by Mangtulal Bagaria for royalties due, under a lease made in the year 1920 by Popat Velji Rajdeo, of whose estate the said Mangtulal had been appointed manager by the Court. The defendants were the lessees under the lease or their representatives and were the respondents in this: appeal. The defence of the lassees was that the lease had been surrendered in July 1933. In answer to this defence the plaintiff challenged the surrender and also pleaded that the point was covered by res judicata.
The plea of res judicata was based on a judgment of the Subordinate Judge of Dhanbad delivered on 13th August, 1936, in suit No. 28 of 1933. The appellant, before the Board, did not rely on the decree in suit No. 1571 of 1933 referred to in issue 1 (ii) (a). In the Dhanbad suit the lessees sued Mangtulal and the two widows and brother of the lessor for a declaration that the lease had been validly surrendered in July 1933. The learned Judge held that the suit did not lie since notice should have been served on Mangtulal under Section 80, Civil P. C., and this had not been done. The learned Judge, however, though holding that the suit did not lie, purported to decide other issues in the case. Amongst other things, he held that the notice of surrender had not been served on any of the defendants except Mangtulal, and that the surrender was bad on that ground, and also for lack of tender of the amount due and absence of a registered deed. An appeal from the decree of the Subordinate Judge was brought to the High Court at Patna. Such appeal was withdrawn against Mangtulal and the brother of the lessor, but a consequent decree was taken against the two widows upholding the surrender.
Thereupon, Mangtulal instituted a suit in the High Court at Calcutta for the recovery of a, sum of Rs. 64,020/- under the said lease for the period May 1933 to April 1939. Ameer Ali, J., who held the trial, took up the plea of res judicata as a preliminary point. He expressed the view that the Dhanbad Court had decided the same issue which had to be decided in his own Court and between the same parties. He then stated expressly that he did not propose to go into the remaining issues. In the result, he passed a decree in favour of the plaintiff.
Against this decree, the defendants appealed to the High Court at Calcutta on the appellate side. McNair and Gentle, JJ., who heard the appeal, held, that inasmuch as the Subordinate Judge of Dhanbad had held that the suit was bad by reason of the failure to comply with Section 80, Civil P. C., he was bound to dismiss the suit under Order 7, Rule 11, and the findings of the Court, on merits, were obiter and could not support the plea of res judicata. Their Lordships of the Privy Council, under those circumstances, did not interfere with the remand order passed by McNair and Gentle, JJ.
Mr. Shankar Nath, for the respondent, urged that in view of this decision, the plea of res judicata fails. The learned Government Advocate, on the other hand, pointed out that the order rejecting the plaint (made by Mr. Om Prakash on 20-4-1951) was not based merely upon his finding that there was no valid notice under Section 80, Civil P. C. On the other hand, the plaint was rejected on two other grounds, namely, that the ground rent had been imposed by the Koti, Darbar and, therefore, It could not be challenged in a municipal Court and under Section 158 of the Land Revenue Act, a civil Court could not take cognizance of a suit relating to imposition of ground rent. It was, therefore, contended--and in my opinion not without justification--that the dictum of their Lordships of the Privy Council, contained in AIR 1950 PC 80 (M), is not applicable to, the facts of the present case.
(17) To sum up, therefore, having regard to the facts and the circumstances of the present case, I am of the opinion that in view of the findings of Mr. Om Prakash, in the earlier decision resulting in the rejection of the plaint on more than one ground, on 20-4-1951, the present suit was barred by the principles of res judicata.
(The rest of the judgment is not material tothis report.)