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Judgment
Wallis, J.—I agree with MUNRO, J., that the extent of the WALLIS, J. defendant''s holding under the plaintiff is res judicata by reason of
the decision in. Original Suit No. 430 of 1906. In that case the present plaintiff, who held a five years'' lease of the village from the registered
landholder, sued the present defendant to recover rent for faslis 1314 and 1315 in. the shape of rajabagam, or landholder''s share of the produce,
of certain jeroyati lands in the village in the occupation of the defendant. To enable the plaintiff to sueceed it was necessary for him to show u/s 7 of
the Kent Recovery Act 1865, that he had tendered a proper patta to the defendant for each fasli, or that it had been agreed to dispense with the
tender. u/s 4 the patta had to contain the local description and extent of the land. The plaintiff pleaded that he had tendered a proper patta for each
fasti. The defendant denied the tenders, and. pleaded further that the pattas alleged to have been tendered wore not proper instancing certain
payments claimed. Ho pleaded further that ""the extent of the defendant''s jeroyati land (that is, of the land in respect of which the plaintiff claimed
rent) has been very much overrated."" I think that must be taken as referring to the extent in the patta as well as to the extent in the plaint, which
would merely reproduce it; and I think the District Munsif who tried the case so under-stood it , as in his careful summary of the written statement
he makes no express mention of the plea as to the extent of the land and evidently treats it as part of the plea that the pattas tendered wore
improper; and I think it was also covered by the issue ""whether the pattas so tendered are proper"" and by the terms of the judgment on that issue,
which is as follows; ""The terms of the pattas, Exhibit F, do not contain any objectionable matter."" If this view of the pleadings is correct, there is an
end of the case, because the question of the extent of the defendant''s jeroyati holding was directly and substantially in issue in the previous suit and
must be taken to have been heard and finally decided in the plaintiff''s favour, as such a decision is necessarily involved in the decree passed in the
plaintiff''s favour, seeing that, if the decision had been the other way, it would under the Rent Recovery Act have been fatal to his suit which must
have been dismissed on the ground that the patta was not a proper one.
In his judgment Sankaran Nair, J., observes that a decree for rent does not necessarily involve the decision that a proper patta has been
tendered, as the parties may dispense with them but, where as here tender of a proper patta is alleged on the one side and denied on the other and
there is no suggestion that tender has been dispensed with, it seems to me that the decree for rent does involve the decision that a proper patta ban
been tendered,
Apart from any question as to the terms of the patta, it seems, to me that the extent of the defendant''s holding of jeroyati land in the village was
a matter directly and substantially in issue in the suit, as it was in respect of this extent that the plaintiff was claiming rajabagam, or landholder''s
share of the produce, from the defendant; and that it was necessary for him to prove this extent to enable a decree to be given in his favour, even if
there had been no plea in the written statement, as there was, that the extent had been over-estimated. In these circumstances I think the decision
on the sixth issue that the plaintiff was entitled to the rajabagam claimed in the plaint necessarily involved a decision that the extent of the
defendant''s jeroyati land in the village was as alleged in the plaint, because what he claimed was the rajabagam of this extent, and that this point
must be taken to have been decided in the plaintiff''s favour.
In either view the question of the extent of the defendant''s holding of jeroyati land in the village having been directly and substantially in issue and
having been, as we must take it, heard and determined because essential to the decision of the suit, cannot be raised again in the present suit for the
rent of fasli 1316 by the defendant''s setting up that he was all along in occupation of only 5 acres of jeroyati land in the village and not of the extent
all along claimed by the plaintiff.
But even assuming that the propriety of the patta was not questioned in the former suit on the ground that the extent of the lands was wrongly
shown and that the extent was not otherwise questioned by the defendant, I think that these being good grounds of defence to the suit might and
ought to have been raised, and must be deemed to have been matters expressly and substantially in issue in the former suit by virtue of explanation
IV to Section 11 of the Civil Procedure Code. It seems to me that any ground of attack or defence which by virtue of the explanation is deemed to
have been directly and substantially in issue in a suit must also be deemed to have boon heard and finally decided adversely to the party who failed
to raise it. The proposition that failure to raise grounds of attack or defence which might and ought to have been raised does not make such
grounds res judicata unless there is an express decision by the Court upon them appears to me to be wholly untenable. Courts of justice are not in
the habit of deciding points not raised before them; and to say that the explanation only takes effect when they happen to do so appears to me to
defeat the policy of the section and to render the explanation senseless as, held by the Allahabad High Court in Sri Gopal v. Plrthi Singh ILR
(1898) All. 110, a decision confirmed on appeal in Sri Gopal v. Pirthi Singh ILR (1903) All. 129, by their Lordships of the Judicial Committee
who thought it sufficient to say that the judgment of the High Court was clearly right and that the appeal on this point was unarguable. I do not
therefore consider it necessary to refer to the earlier decisions of the Calcutta High Court on which. Sankaran Nair, J. relied, and it is the more
unnecessary to do so as they are very fully examined in the judgment of Swndara Ayyar, J. The appeal must be allowed, the decrees of this Court
and the lower appellate Court reversed, and. the case remanded to the District Judge for disposal according to law. Costs will abide the event,
Swndara Ayyar, J.
This is an appeal u/s 15 of the Letters Patent arising out of Bayya Naidu v. Paradesi Naidu ILR (1912) Mad. 216. The original suit which led to
the Second Appeal was instituted by a landlord for the recovery of rent from the defendants, his ryots, for the fasli year 1816. According to the
plaintiff''s case the defendants were in possession of about 14 acres of jeroyati lands under him liable to pay waram or rent in kind. The first
defendant, the undivided father of the second defendant, contended that he held only 5 acres of jeroyati lands and that he held in addition 10 acres
of inam and 3 acres of cash rent paying lauds and denied that any patta was tendered to him for the fasli in question as alleged by the plaintiff. The
correctness of the patta alleged to have been tendered was also denied. The seventh issue framed by the Munsif raised the question ""whether the
alleged tendered patta was valid and binding on the defendant."" The eighth issue was ""whether the whole of the 14 acres of land mentioned in the
plaint is defendants'' jeroyati as alloged, by the plaintiff, or only 5 acres jeroyati and the rest inam and cash rent paying land as alleged by the
defendants."" At the hearing a further question was raised whether the question of the propriety of the patta tendered was res judicata in
consequence of the decision of the Court in Original Suit No. 130 of 1906 which related to a suit for rent instituted by the plaintiff against the
defendants for fasli 1314. The District Munsif held that the matter was not res judicata because the points in dispute were not raised in the previous
suit, these points being the inclusion of inams and. of money rent paying lands as waram paying lands, and the erroneous description of the lands
for which the plaintiff is entitled to claim rent. On the merits he held that the patta tendered was not a proper one. He was of opinion that part of
the lands included in the patta was inam and was wrongly claimed by the plaintiff as jeroyati. He did not decide the question whether cash rent and
not rout in kind was payable for part of the land He apparently thought that the patta must be held to be incorrect in stating that waram was
payable while cash rent was received till the end of fasli 1813. The mistake complained of with regard to the description of the land. was that the
eastern boundary was described as the service inam of the defendant, while in the patta for faslis 1313 and 1314, it was described merely as
defendants'' inam. This was held by the Munsif to be improper although he did not decide the question whether the description of the boundary of
the defendants'' land as service inam was in fact correct or not. He dismissed the plaintiff''s suit. His judgment was confirmed on appeal by the
District Judge who upheld the Munsif''s view on the question of res judicata. The Judge observed on the question of the correctness of the patta as
follows:-- ""Appellant does not seriously argue that the patta was a proper one."" The plaintiff preferred a Second Appeal to this Court. The
question argued in Second Appeal was that the propriety of the patta was res judicata by the judgment in Original Suit No. 430 of 1906. The
appeal came on for hearing before Munro and Sankaran Nair, JJ., The learned Judges differed in their views, MUNRO, J., being of opinion that
the plea of res judicata must be upheld, while Sankaran Nair, J., agreed with the opinion of the lower Courts that it should not be maintained. In
the result, the Second Appeal was dismissed in accordance with the provisions of Section 98(2) of the Civil Procedure Code. The present appeal
is therefore substantially against the judgment of Sankaran Nair, J. In the previous suit, Original Suit No. 430 of 1906, the first issue was ""whether
the plaintiff tendered pattas to the first defendant for faslis 1314 and 1315 and whether the pattas tendered are proper."" The tender of patta was
held to be proved. The finding on the question of its propriety was in these terms:--""The terms of the pattas, Exhibits K and F, do not contain any
objectionable matter. I accordingly find the first issue in the affirmative."" In the written statement in that suit marked as Exhibit C, in the present suit,
paragraphs 8 and 9 took objections to the correctness of the patta. Paragraph 8 stated:--""The pattas filed, alleging having been tendered are not
proper. The terms in paragraph 3 of the plaint are not mamool terms."" The terms referred to related apparently to the giving of firewood, the
payment of interest and the amount of road cess payable by the ryot. Paragraph 9 stated: ""The extent of defendants'' jeroyati land has been very
much over-estimated by the plaintiff."" So far as the written statement was concerned the details of the overstatement of the extent of the jeroyati
land were not stated and no specific objection was taken to the statement that some portion of the lands was wrongly mentioned as liable to pay
waram instead of cash rent. The objection in the present suit with regard to the description of the eastern boundary may be left out of account as it
cannot be held to affect the plaintiff''s right to the land in question. It is immaterial whether the defendants'' land which forms the eastern boundary
was his service inam or an inam of a different character so far as the relations between the plaintiff and the defendants with regard to the plaint land
are concerned. The District Munsif did not find that the description of it as service inam was incorrect. It does not appear to what points the
evidence let in by the parties in the previous suit related with respect to the correctness of the patta, and the Munsif''s finding throws no further light
as it is expressed in general words ""Tho terms do not contain any objectionable matter."" The appellant''s contention is that the defendants who set
up that a proper patta had not been tendered wore bound to raise all objections that they could to the propriety of the patta and that the judgment
in the previous suit must be taken to been adjudication that the terms of the patta were correct in every respect and that therefore they cannot raise
any objection to the propriety of the patta in this suit which they might have failed to urge in the previous suit. Except in the matter of the difference
in the description of the eastern boundary which, in my opinion, may be neglected if is not stated that the terms of the patta tendered for fasli 1316
were not similar to the patta for fasli 1314 which was held to be a proper one in the previous suit. The District Munsif observes that the patta in
question was virtually the same an that which was tendered for fasli. 1314. The correctness of this statemont is not seriously disputed. MUNRO,
J., observes:-- ""Had the issue in the previous suit relating to the correctness of the patta been found in the negative, the plaintiff''''s, soil must have
been dismissed....The finding in the previous suit that the pattas were proper, i.e., that they were such as the defendants were bound to accept,
was a finding that the relationship of landlord and tenant subsisted between the plaintiff and the defendants in respect of the land entered in the
pattas and I do not think that the defendants can again be allowed to put the plaintiff to proof of his title."" Sankaran Nair, J., held having regard to
the general language of the District Munsif''s finding in the previous suit that there was no explicit adjudication there of the questions now raised,
viz., whether a portion of the lands was inam or jeroyati and whether another portion was liable to pay cash rent or waram. The learned Judge was
further of opinion that as the suit related only to the rent for a particular year [F. 1316], it did not necessarily require a decision as to the terms of
the patta or the extent of the land for which rent was payable, and that these questions are therefore not res judicata.
The decision of the question depends on the interpretation to be placed on Section 11 of the CPC which embodies the rule of res judicata.
According to the section, the Court is forbidden to try ""any suit or issue in which the matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties. ""The rule applies subject to the other provisions of the section not only to a suit tried
before, but to an issue decided in a previous suit provided the matter directly and substantially in issue in the later suit was raised in the previous
suit or in a substantial and direct issuo in the previous suit. Explanation III lays down--""The matter above referred to must in the former suit have
been alleged by one party and either denied or admitted, expressly or impliedly, by the other."" An implied denial is as effective as an express one.
Explanation IV says, ""Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to
have been a matter directly and substantially in issue in such suit.
The appellant contends that with respect to any issue in the former suit the parties were bound to put forward all grounds of attack or defence
material for the decision of the issue and will be deemed to have done so even if they failed to do so in fact; that the propriety of the patta was
directly and substantially in issue in the previous suit, and that both the plaintiff and the defendants were bound to put forward every matter
involved in the question of the correctness of the patta and that the decision that the patta was a proper one must be taken to be a decision that
there was no valid objection of any sort to it; and that the defendants cannot now be permitted to raise any matter relating to the propriety of the
patta which he might have failed to raise before. I am of opinion that these contentions must be upheld. The learned Counsel for the respondent
rested himself on the arguments contained in the judgment of Sankaran Nair, J., and did not elucidate the points any further. It becomes therefore
necessary to examine the arguments contained in the judgment of that learned Judge, He lays down the following propositions as I understand his
judgment;
(1) The scope of the rule of rev judicata as limited by the words ''directly and substantially in issue'' is not confined to the relief granted by the
former suit or to the property which was the subject matter therein.
(2) The decision on a matter not essential for the relief finally granted in the former case, or which did not form one of the grounds for the decision
itself, cannot be said to have been directly and substantially in issue but, where the decision on a question was essential to the relief granted or the
decree passed, or where it formed the groundwork of the decision, then the matter must be deemed to have been directly and substantially in issue
in the suit.
The difference between issues ''collateral'' and ''direct'' depends upon whether it was possible to pass the decree without any finding upon the
particular issue.
(3) With regard to the relief granted in a suit, the decree may render it necessary to imply a decision on a question not expressly decided, but with
regard to issues no implication is necessary but we ought to have a clear decision to create a bar [The application of the latter part of the rule
would of course be to cases where the subject matter of the two suits is different.]
(4) explanation (4) does not dispense with the necessity of a finding upon a matter which might and ought to have been made a ground of defence
or attack in the former suit unless that matter must be taken to have been involved in the actual decree passed in the case.
(5) It is not enough to make the matter of an issue res judicata that the decision of it in a different manner would be inconsistent with the decree in
the previous case as such determination would not affect the actual decree passed in that case for the rent for fasli 1314.
(6) A. decree for rent does not necessarily involve the decision that a proper patta has been tendered.
If therefore as a fact that question was not decided in the previous suit, we are not bound to imply that it was so decided.
Now Section 11 of the CPC requires that the matter or issue should have been heard and finally decided by sued. Court It does not say that it
should have been decided in explicit terms. It cannot be doubtod that if an adjudication on a matter is necessarily involved in the decision in a prior
suit, the section must be understood to lay down that it must be taken to have been heard and finally decided. Sankaran Nair, J., admits that the
principle of an implied decision must be adopted so far as whatever is required by decree in the previous suit is concerned. But he lays down that it
is not applicable with regard to issues, He does not say how then the judgment in a suit is io be understood. No such distinction is warranted by the
language of the section. The suit and an issue put forward for trial in the second suit are treated on exactly the same footing in the flection, and the
test of res judicata with regard to each is whether the matter directly and substantially in issue in the later suit was the matter directly and
substantially in issue in the suit or in an issue in the earlier suit. The word ""issue"" in the expression ""suit or issue "" must be distinguished from the use
of the words ''in issue'' in the expression ""the matter directly and substantially in issue."" The latter expression as already stated is made applicable to
both the later suit and an issue raised in it. ""Directly and substantially in issue"" obviously means ""directly and substantially in question, which would
include everything necessarily involved"" whether that expression is applied to the suit itself or an issue in it. This has to be borne in mind in
interpreting explanation IV also. It speaks of ""any matter which might and ought to have been made ground of defence or attack in the former suit.
The phrase ""matter directly and substantially in issue"" in the principal clause of the section is spoken of with reference to both the suit and issue.
Clearly therefore what ought to have been made ground of defence or attack with respect to any issue in the earlier suit must be taken to have
been a matter directly and substantially in issue therein when the question is whether an issue in the earlier suit can be tried again in the later suit.
Again in deciding whether any matter is res judicata, tbo question is, what is necessarily involved in the actual judgment of the Court in the earlier
suit, not what relief was granted by the decree, because it is the matter decided (expressly or by necessary implication) that becomes res judicata.
It is desirable to illustrate by a concrete example. Suppose a suit is instituted for one of the instalments payable according to the terms of a bond.
The defendant denies its genuineness and pleads also absence of consideration, and issues are framed on both points. The Court passes a decree
for the instalment but records no explicit finding on either of the issues. A suit is subsequently instituted in the same Court for a second instalment
and the defendant raises the same pleas as in the earlier suit. The subject matter of the two suits is not the same and the dismissal of the second suit
would not affect the actual decree passed in the earlier suit. Can it be contended that the issues may be tried again in the second suit? According to
the learned Judge apparently they should be tried again. The executant of the bond, according to him, though he cannot seek to recover back the
amount decreed against him in the earlier suit, may resist the second suit for the later instalment. The difference between issues ''collateral'' and
''direct,'' according to the learned Judge, depends upon ""whether it was possible to pass the decree without any finding upon the particular issue."" I
am unable to accept has position that though a finding might be necessary to pass the judgment in the previous suit, the issue should not he taken to
have been decided (unless explicitly decided) if the result of the second suit would not be to reopen the actual decree in the previous suit. The
result of such a position would be that the same issues may be reopened again and again in the same Court though such such reopening would be
inconsistent with the decree and judgment in every one of the previous suits. According to the learned Judge such inconsistency is immaterial, The
decision of the Privy Council in Amanat Bibi v. Imdad Hoosen is referred to in support of this position. There were two earlier proceedings, one, a
suit to establish a sub-proprietary right as against a talukdar, the other, a proceeding to recover the same property from the talukdar under the
terms of a certain revenue circular on repaying to the talukdar the arrears of revenue which he had paid to the Government. The third proceeding in
which the plea, of res judicata was raised was a suit to redeem a mortgage granted by the person who was plaintiff in the earlier proceeding. The
Privy Council held that the third suit was not barred as res judicata because the cause of action was different. Their Lordships held that the cause
of action to establish a sub-proprietary right was obviously different from that in a suit for redemption though the property sought to be recovered
was the same. The question in issue, said their Lordships, was quite different in the two suits; and they interpreted the provisions in Section 7 of
Act VIII of 1859 which enacted that ""every suit shall include the whole of the claim arising out of the cause of action"" as not requiring that ""every
suit shall include every cause of action, or every claim winch the party has, but only that every suit should include the whole of the claim arising out
of the action, on which the suit is brought."" It is now a well-established proposition that though the subject-matter of the litigation and the relief
claimed may be the same, different suits may be maintained by a plaintiff if the cause of action in each suit be different. There were two stages in
the second of the earlier proceedings. The first originated in an application by the plaintiff under a Revenue circular to recover the property. The
Settlement Officer who made the inquiry found that the plaintiff had conveyed the property to the talukdar by a conditional sale which had become
absolute in 1853 and that the plaintiff was further not entitled to recover the property as he had not repaid to the talukdar certain arrears of revenue
paid by the latter which he was bound to repay before claiming to recover the property. Their Lordships held that this order under the special
circular could not be treated as judicial proceeding''s at all. The plaintiff then had recourse to fresh proceedings on the ground that the payment of
arrears by the talukdar must be treated as having been made on his account. The Settlement Officer then again decided that the property had been
transferred to the talukdar by a conditional sale of the year 1853 which had become absolute. Their Lordships held that the question in those fresh
proceedings must be taken to have been merely ""whether the plaintiff was entitled to recover the property which had been transferred by the
Government to the talukdar on repaying to the talukdar the arrears of revenue which he had paid to Government,"" that being according to their
Lordships the cause of action on which the plaintiff then claimed to recover. The matter in issue in the suit before their Lordships, they said, was
the respondent''s right to redemption under the mortgage-deed of 1854."" Their Lordships then observed, ""It may be difficult to reconcile the
position of the talukdar as mortgagee in 1854 with his position as absolute owner in 1853 under purchase from the mortgagor. But if it be
established that the respondent was a, mortgagor in 1854 with the right of redemption, why should he be barred merely because at an earlier date
he may have had no right to the property at all?"" This is the passage relied on by the learned Judge for the proposition that the decision of an issue
in the earlier suit inconsistent with an issue in the later suit will not make the suit or issue in the later suit res judicata. I. can find no such proposition
laid down by the Privy Council. They did not regard the later suit as inconsistent with the decision in the former suit that there was a conditional
mortgage of 1853 which, if it was in operation, had become absolute in 1853. Proceeding on the basis that the conditional mortgage had been,
established to be true, if the talukdar chose to take a mortgage in 1654 from the plaintiff and his subsequent holding was under that mortgage, their
Lordships held that the mortgage of 1854 would furnish the plaintiff with a fresh cause of action, and a plaintiff need not combine in the same suit all
his cause of action, though both suits might be for the recovery of the same property. They did not say that in the later suit the execution of the
conditional sale of 1853 or its having become adsolute could be denied. The observation that it may be difficult to reconcile the position of the
talukdar as mortgagee in 1854 with his position as absolute owner in 1853 under a purchase from the mortgagor meant no more than that it might
appear to be improbablo that a person who was absolute owner in 1853 would take a mortgage in 1854; but a mortgagee cannot deny the title of
his mortgagor, and if the talukdar chose to take a mortgage from the plaintiff in 1854 be could not say that the plaintiff did not obtain a fresh cause
of action for redemption of that mortgage. On the other hand, in Pahalwan Singh v. Maharaja Muheshur Buksh Singh Bahadoor (1872) 12 Ben.
L.R. 391, the Privy Council applied the rule of an implied decision of an issue by a former adjudication although the property in the two suits was
different. The learned Judge seems to have been under the impression that in that case the decree in the later suit would re-open the decree in the
earlier suit, but that was not the case, as the property in dispute in the two suits was different. It is of course necessary that in order that an issue
may be res judicata the decision in the former suit must necessarily involve an adjudication in a particular way on the issue raised in the later suit
and its adjudication in a contrary way in the later suit must be inconsistent with the adjudication which must be implied in the earlier suit. In one part
of his judgment the learned Judge observes that where the decision on a question was essential to the relief granted, or where it formed the
groundwork of the decision, then the matter must be deemed to have been directly and substantially in issue in the suit, but he afterwards restricts
the scope of the second test to cases where the question was explicitly decided. For this restriction I can find no warrant either in principle or in the
language of the section.
The statement that a decision on a matter not essential for the relief finally granted cannot be said to have been directly and substantially in issue
is unworkable in practice, where a suit is dismissed without any relief being granted. The test should really be whether the matter was essential for
the decision in the earlier suit, not for the relief granted. The decision of a Court proceeds on the matters put in. contest by the parties and its
adjudication cannot be understood without regard to the actual contest. It is impossible to understand it merely with regard to the decree. Suppose
a suit for an instalment on a bond is dismissed, the defendant''s plea being that the bond is not genuine and that it is not supported by any
consideration. The Court does not record any explicit findings on these points, either of which would lead to the dismissal of the suit. Suppose the
plaintiff afterwards institutes a suit for another instalment and the defendant raises the same pleas. Can the plaintiff be permitted to say that the
points should be tried again and he should be given a decree if both points are found in his favour. Sankaran Nair, J., conceeds that the granting of
the relief may be taken to involve the decision of whatever point is necessary to support the decree. But what points are to be taken as involved in
the decree in the instance just put? How is it possible to decide a question of res judicata by a consideration of the relief alone which is granted and
without a consideration of the judgment in the case, and how is it possible to understand what the Court decides in the judgment without seeing
what the contest between the parties was. The result of doing so would be to confine the doctrine of res judicata to the scope of the rule transit in
rem judicatum (except where a matter directly and substantially in issue has been explicitly decided by the judgment in a former suit). Suppose in
the illustration already put of a defendant denying both the genuineness and consideration of an instalment bond, the defendant in the second case
admits the genuineness of the bond but denies only the passing of consideration for it. If it is open to the Court in the later suit to proceed on the
footing of the genuineness of the bond, the question would arise whether the matter as to consideration is res judicata by the former judgment. As
no explicit findings on the points in contest] wore recorded in the judgment, the decision might have preceded either on the ground that the bond
was not genuine or that it was not supported by consideration; or on both grounds. It might be proper in such a case to held that, the previous
judgment did not necessarily imply a decision on the question of consideration. Certainty is essential for the application of the rule of rex judicata
and the Court would not prevent the reagitation of a matter where it is not certain that the previous decision proceeded on a particular ground. See
Vythilinga Mudaliar Vs. Ramachendra Naicker, . If a suit for an instalment is dismissed for default no matter would be res judicata in a claim for
another instalment. If it is decreed ex parte, the genuineness of the bond and all questions as to its enforceability, so far as to justify a decree for the
instalment would be res judicata in a suit for another instalment. The learned Judge apparently proceeds on the view that for some reason the
scope of the rule of res judicata with regard to issues should be restricted as far as possible, and refers to the opinion of STUART, C.J. in Bahu
Lal v. Ishri Prasad Narain Singh ILR (1878) All. 582, and Muhammad Ismail v. Chattar Singh ILR (1881) All. 69, who regretted the application
in this country of the principle of res judicata to the trial of issues, and not merely to the subject-matter in previous suits. It is unnecessary to
consider whether there arts good grounds for such regret. The rule was well established by the decisions of the Privy Council. See Krishna Behari
Roy v. Brojeswari Chowdranee (1875) 2 I.A 283, Pahalwan Singh v. Maharaja Muheshur Buhsh Singh Bahadoor (1873) 12 Ben. L.R. 304,
Soorjomonee Dayeen v. Suddanund Mohapatter (1872) 12 Bon. L.R. 391, and Pittapur Raja v. Buchi Sitayya (1885) 8 Mad. 219 Section 13 of
Act X of 1877 and Section 11 of the present Code made the expression ""matter directly and substantially in issue"" applicable both to ''suit'' and
''an issue in a suit.,''
The learned Judge holds that the proper terms of the patta to be tendered by the land-holder to the ryot could not be regarded as having
necessarily been directly and substantially in issue in a suit for rent. Two decisions of the Privy Council are referred to in support of this position.
The first of them is Misir Ragho Bardial v. Sheo Baksh Sing (1883) 9 Calc. 439 . In that case the plaintiff had previously instituted a suit for Rs.
1,665, the balance of interest due on a bond for Rs. 12,000 in a Court not competent to try suits exceeding Rs. 5,000 in value. The defendant had
pleaded that the bond was supported by consideration only to the extent of Rs. 4,790, and that the amount already paid by him for interest
exceeded the interest duo on the actual consideration that had passed. The defendant''s plea was upheld. The plaintiff subsequently instituted a suit
for the principal and interest due on the bond in a court competent to try a suit of that value. The question was whether the decision in the previous
suit as to the amount of consideration that had passed for the bond was res judicata in the subsequent suit. Their Lordships held that it was not.
The point was decided on the ground that the Court that decided the previous suit was incompetent to try the later suit for principal and interest.
The rule as to the necessity for the Court trying the previous suit having concurrent jurisdiction to try the later suit had also been laid down by the
decisions of the Privy Council under Act VIII of 1859, although the language of Section 2 of that Act did not in terms refer to that requisite. Sir
RICHARD COUCH in pointing out that the rule already applied by the Privy Council while Act VIII of 1859 was in force was embodied in
explicit terms in Act X of 1877 went on to observe that the issue as to consideration ""was a ''collateral'' rather than a ''direct'' issue in the suit."" He
said, ""the plaintiff might have succeeded without having a finding upon it if he had proved an admission by the defendant that the sum claimed was
due for interest, or had shown that the Rs. 2,475 (the sum alleged to have been paid for interest) had been expressly paid on account of the larger
sum which he said the defendant owed for interest."" This is immediately followed by the sentence ""If the decision of the Assistant Commissioner is
conclusive he will, although be could not have tried the question in a suit on the bond, have bound the plaintiff as effectually as if he had jurisdiction
to try that suit. Their Lordships think that this was not intended and that by Court of competent jurisdiction Act X of 1877 moans a Court which
has jurisdiction over the matter in the subsequent suit in which the decision is used as conclusive, or in other words, a Court of concurrent
jurisdiction."" It is clear to toy mind that his Lordship in making the observation contained in the previous sentence was only dealing with the
question of the necessity of concurrent jurisdiction in the court which tried the earlier suit, and he used the expression ""collateral"" in the sense of
not referring to the subject-matter of the previous suit"" and that he did not mean that it was not necessary for the decision of the suit on the issues
raised between the parties on the pleadings in the case. The observation was made with reference to the principle that the judgment of a court not
having jurisdiction to try the later suit would not be res judicata on any issue in the earlier suit but only with respect to the actual subject-matter of
the previous suit. In Run Bahadur Singh v. Lucho Koer (1885) 11 Calc. 301, the decision in Misir Ragho Bardial v. Sheo Baksh Singh (1883) 9
Calc. 439 was treated as an authority only en the question that the adjudication of a court not having concurrent jurisdiction with that trying the
later suit would not make the decision of an issue res judicata, Both Misir Ragho Bardial v. Sheo Baksh Singh (1883) 9 Calc. 439 and Run
Bahadur Singh v. Lucho Koer (1885) 11 Calc. 301, on the other hand proceed on the assumption that, if there had been concurrence of
jurisdiction in the two courts the finding on an issue in the earlier suit would have given rise to a successful plea of res judicata. It would appear that
in the Duchess of Kingston''s case (1776) 2 Sm. L.C. 73 which was referred to by Sir Richard Couch in the judgment in Misir Ragho Bardial v.
Sheo Baksh Singh (1883) 9 Calc. 439 the expression ""direct issue"" as opposed to a ""collateral"" one was used in the sense of an issue directly
determining the subject-matter of the previous proceedings and not in the sense in which it is obviously used in the Indian statute. There is in my
opinion no foundation at all for making a distinetion between an explicit decision and. an implied decision of an issue in the application of the
doctrine of res judicata., provided the matter raised in the issue was directly and substantially in issue in the carlier suit. If the decision was not
sufficiently explicit that would no doubt furnish the party affected by it in the earlier suit a good ground for appeal against the decision just as any
other error or imperfection would do, but the defect in the finding is not one that can be collaterally attacked in the later suit. The same observation
would apply even if an issue regarding a matter directly and substantially in issue in the former suit was not clearly raised or not raised at all
provided the matter is such that it must be taken to have been decided in the earlier suit, that is, provided the judgment would not be sustainable
unless the matter be taken to have been decided. Sankaran Nair, J., holds that explanation IV"" which states that ""any matter which might and ought
to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such
suit"" does not qualify the statement in the principal clause that the matter in issue should have been ""heard and finally decided by such court.'''''' It is
of course true that the matter should have been decided in contemplation of law but if, as the learned Judge concedes, it is sufficient if the matter
must be taken to have been decided by necessary implication so far as the subject-matter of the suit and anything involved in the decree itself are
concerned, what reason is there for putting a different construction on the same words as applied to the decision of an issue? And if so far as what
is involved in the decree is concerned any matter winch might and ought to have been made ground of defence or attack must be taken to have
been decided, there is in my opinion equally no reason for not applying the same principle with respect to a matter directly and substantially in issue
in an issue in the previous suit. As I have already observed the language of explanation IV is equally applicable both to the previous suit itself and
to an issue in the suit. What use is there in enacting that what ought to have been made ground of defence or attack in the former suit shall be
doomed to have been a matter directly and sub-stantially in issue in that suit if the matter is not also to be taken to have been decided in the
previous suit? What was not made ground of defence or attack could not have been expressly decided. The explanation would therefore be
objectless if a decision also is not to be implied and made the ground of estoppel with respect to what is impliedly to be regarded as having been
directly and substantially in issue. At any rate the logical result of the respondent''s position must be to make an explicit decision equally necessary
with respect to a ground of attack or defence not having been urged with regard to a matter involved in the decree itself in the previous suit. The
learned Judge''s position is no doubt supported by several decisions in the Calcutta High Court [Kailash Mondal v. Baroda Sundari Dasi (1897)
24 Calc. 711 and Woomesh Chandra Maitra v. Barada Das Maitra (1901) 28 Calc. 17, but in my opinion those decisions are absolutely
unsupportable and. quite inconsistent with the decision of the Privy Council in Pahalwan Singh v. Maharaja Muheshur Buksh Singh Bahadoor
(1872) 12 Bom. L.R. 391 and Mahomed Ibrahim Hossain Khan v. Ambiha Pershad Singh (1912) 39 Calc. 527, even if the decision of the same
tribunal in Sri. Gopal v. Pirthi Singh (1902) ILR 24 All. 429 (P.C.) could be distinguished as; stated, by Sankaran Nair, J., on the ground that the
implication of a decision on an issue which ought to nave been raised in the previous suit was justifiable in that case as the decree passed in the
carlier suit would itself be affected otherwise. The Calcutta, High Court however did uot consider Sri Gopal v. Pirthi Singh (1902) ILR 24 All. 429
(P.C.) distinguishable on that ground. GURUDAS BANERJEE, J. who was a, party to the decision iu Kailash Mondal v. Baroda Sundari Dasi
(1897) 24 Calc. 711 observed in Rajendra Nath Ghoxe v. Tarangini Dasi (1905) 1 C.L.J 248 that the position adopted by him in the provious
case would require to be reconsidered in consequence of the decision in Sri Gopal v. Pirthi Singh (1902) ILR 24 All. 429 (P.C.). The same view
was taken by the Calcutta High Court in Kailash Chandra Mandal v. Ram Narain Giri (1906) 4 C.L.J., 211, Jamadar Singh v. Sherazuddin
Ahamad Choudhuri (1908) 35 Calc. 979 and. Mohim Chandra Sarkar v. Anil Bandhu Adhikari 13 C.W.N. 513 although Jamadar Singh v.
Sherazuddin Ahamad Choudhuri I L.R. (1908) Calc. 979 might be explicable if the distinction adopted by SANKARAN Nair, J. be correct. This
court also has held that a ground of attack or defence which a party omitted to bring forward in an earlier suit must be taken to have been decided
in the suit. Sue, Arunachllam Chetty v. Meyyappa Chatty ILR (1898) Mad. 91, Masilamania Pillai v. Thiruvengadam Pillai ILR (1908) Mad. 385.
The point seems to mo to be so obviously clear that it does not deserve further consideration.
According to the respondent''s argument, although a matter not necessary to sustain, the actual decree in an earlier suit will not. be res judicata
in a later suit if the decision on it is only by way of implication, yet it would be res judicata if it expressly decided it. That an express decision would
constitute an estoppel was regarded by Sankaran Nair,J. as concluded by the decision of the Privy Council in pittapur Raja v. Buchi Sittaya ILR
(1885) Mad. 219 to which might be added several other rulings. See Gobind Chundor Koondoo v. Taruck Chunder Bose (1878) 3 Calc. 145 ,
Soorjomonee Dayee v. Suddanund Mohapalter (1873) 12 Ben. L.R. 304 and. Krishna Behari Roy v. Brojeswari Chowdranee (1875) 2 I.A.
But the test laid down in these cases was not whether the decision was explicit but whether the issuo was one on which the judgment in the
previous suit was based, quite apart from the question whether the decree itself would be affected by the matter being re-opened in the later suit. If
the judgment was not based on the issuo then the decision of the issuo whether express or implied cannot constitute the matter res judicata in the
later suit.
These are the general principles which in my opinion must guide the court in determining whether the question of the correctness of the patta is
res judicata by the decision in the previous suit for the rent of fasli 1314. The point is, was the question of the propriety of the patta directly in issue
in the previous suit and was it decided expressly or by implication. In my opinion the question whether a decree for rent involves a decision that a
proper patta had been tendered is one which must be decided with reference to the facts of each case. It is perfectly true as pointed out by
SANKARAN NAIR. J. that the tender of a patta is not essential to a landlord to recover rent and that the parties may dispense with it. It may be
right to go farther and say that a ryot may, if he choose, not insist on the tender of a proper patta before he pays rent for any particular year and
that this will not affect his right to require a proper patta in any subsequent year and resisting a suit for rent on the ground that a proper patta has
not been tendered. It may be open therefore to a defendant to raise no plea at all about the correctness of a patta in a suit instituted for the rent of
a particular year; this may not estop him from resisting a subsequent suit for rent for another year on the ground that the patta alleged to be
tendered is not correct. This may possibly apply even in cases where the plaintiff alleged in the earlier suit that he tendered a patta containing
proper terms. But the effect of a decision depends in largo measure on the actual contest between the parties, A party may not be bound to raise a
particular plea, but if he does raise a plea which would be an effective answer to the suit then the same plea cannot be raised again in a later suit
between him and his opponent. It may be that the actual decree alone in the previous suit with respect to its subject-matter would not lead to an
implication of the decision of a particular matter but if the matter is put in contest and the result of the contest would be that the judgment in the
case must depend on the decision of the matter then it is clear to my mind that the decision would constitute it rex judicata in a subsequent suit and
it is absolutely immaterial whether the decision be express or implied. Of course it is open to the parties to show that the contest on any matter was
subsequently waived or that the Court refused to decide the matter, but if neither of these events took place a decision by the Court on the matter
must necessarily he implied if it was not expressly decided. In the case before as we have a decree for rent. It is said this did not necessarily
require a decision as to the terms of the patta or the extent of the land for which the rent was decreed. Is this correct when the terms of the patta or
the specification of the extent of the land were impugned? When these questions were raised by the defendant could the Court pass a judgment for
rent in the plaintiff''s favour without determining them? The learned Judge seems to proceed on the footing that the question what is necessary to be
decided in a suit is to be settled without reference to the pleas raised by the defendant. With all deference this seems to be an altogether
indefensible position.
In Pahalwan Singh v. Maharaja Muheshur Buhsh Singh Bahadoor (1872) 12 Ben. L.R. 391, a suit was instituted in the Shahabad Court for
recovering certain land as an accretion to the estate of the plaintiff in that suit in the District of Shahabad. The defendant in the suit claimed the land
as an accretion to his own estate in the District of Ghazipur. The Courts decided that the land was an accretion to the plaintiff''s estate in Shahabad
and not to the defendant''s estate in Ghazipur. The defendant subsequently instituted a suit in the Ghazipur Court for the land to which the subject
of the former suit was found to be an accretion. The Privy Council held that the holding in the earlier suit necessarily decided that the land claimed
by the plaintiff in the latter suit was in the District of Shahabad and that the Court of Ghazipur had no jurisdiction. It will be noted that the property
in the two suits was different. Any plea as to the district in which the property in the later suit was situated was not a necessary one, the immediate
question in the earlier suit being merely whether the land was an accretion to the property of the plaintiff or of the defendant in the suit; but the
parties went to trial on the question whether the land was an accretion to the plaintiffs estate in Shahabad or the defendant''s estate in Ghazipur and
the issue which arose on their contest was regarded as determining the question in which district the property in dispute in the later suit was situate
Their Lordships observed ""Now, no doubt, it might be possible to suppose cases in which the decision as to the accretion might not necessarily be
a decision that the land to which it was accreted was within the local jurisdiction of the Court which had dealt with it. But all these questions must
be tried with respect to the subject-matter in the particular suit; and seems to their Lordships impossible, in construing the section with reference to
what was in issue in the former suit, to come to any other conclusion than that the decision did, by necessary implication, find that the green land
was within the settled estate of the Maharaja in Shahabad. He came as plaintiff into Court; he claimed the whole of the land as an accretion to his
settled estate in Shahabad, From the map and the evidence, it is obvious that, if an accretion to his land, it could be an accretion to nothing but the
green land. The accretion was found to be an accretion to his land in the settled estate of Shahabad, and that proposition necessarily implied that
the green land was a part of the settled estate of Shahabad.
In Soorjomonee Dayee v. Suddanund Mohapatter (1873) 12 Ben. L.R. 304 the Privy Council held that if the right to certain property is
contested on a ground equally applicable to that and other property, then the decision of the matter will be res judicata not only with regard to that
property but with regard to all other property embraced by the ground on which the contest is based, and that the pleadings must be referred to to
decide what matter was contested between the parties. Their Lordships observe ""In their Lordships'' opinion, the effect of the pleading is that the
plaintiff, sought, inter alid, to set aside the will on the ground that the testator had not the power to make any of the devises of reality that it
contained, inasmuch as he could nod devise ancestral real property, and all his real property was in point of law ancestral, consisting of such as he
had inherited from his father, and such as he had bought out of the income of it...If both parties invoked the opinion of the court upon this question,
if it was raised by the pleadings and argued, their Lordships are unable to come to the conclusion that merely because an issue was not framed
which, strictly construed, embraced the whole of it, therefore the judgment upon it was ultra vires. To so held would appear scarcely consistent
with Mussumat Mitna v. Syud Fuzl Rub (1870) 13 M.I.A. 573, wherein it was held that in a case where there had been no issues at all, but where
nevertheless it plainly appeared what the question was which was raised by the parties in their pleadings, and was actually submitted by thorn to
the court, the judgment upon it was valid."" This was a decision under Act VIII of 1859) which did not expressly lay down the rule of res judicata
with regard to an issue in a suit, In Tirbhuwan Bahadur Singh v. Rameshar Bakhsh Singh (1906) 28 All 727 it was laid down by the Privy Council
that the conduct of the parties must be considered in deciding whether an issue was material for the decision in the earlier suit. In Aghore Nath
Mukerjee v. Srimati Kamini Debi (1910) 11 C.L.J. 461 MOOKERJEE and TEUNON, JJ., held that if a porson who has no present interest in
the bequests contained in a will is made a party to a suit which asked for the construction of the will and the determination of all rights created by it
and he takes an active part in the contest relating to the construction, the decision of the court on the construction would be res judicata against
him. It is true that it is not always easy to decide what was directly and substantially in issue in a former suit. Issues are often framed by courts not
only on points which are essential for the determination of the actual matter in controversy between the parties but also on subsidiary questions
having more or less bearing on the essential points. A decision on such subsidiary questions need not necessarily make the matter raised by them
res judicata in a subsequent suit whore they became material for the decision of the matter then brought under contest. Again, a decision on one of
two questions may be enough to determine a contest but both the questions might be adjudicated on and made the basis of the judgment. In such a
case the matter raised in both the questions would be res judicata although if the judgment had been based on one of them alone the other would
not be res judicata. Again, suppose a suit is instituted for the recovery of certain properties, the defendant might merely deny the plaintiff''s title to
those properties and the issues might relate only to the particular properties claimed. In such a case a pronouncement on points involving both the
properties under litigation and other properties might not lead to estoppel by res judicata. But suppose the defendant rests his defence on a ground
which admittedly covers both the properties claimed by the plaintiff in the suit and other properties as for instance by claiming them all under a will
and the issue as to the will is decided against him; then in that case if the plaintiff subsequently claims other properties under the will, the question as
to the will would obviously be res judicata. Suppose again a plaintiff claims on the basis of his right under a will some of the properties comprised
in it and the defendant contests the genuineness of the will. The decision of the court that the will is or is not genuine will certainly bind both the
plaintiff and the defendant in any litigation between the parties with reference to other properties in the will. In a suit for rent for a particular year it
may often not be easy to determine whether any particular question raised relates only to the claim made for the year or is one which would affect
the right to rent for other years also. The court has in each case to decide whether the issue covers the plaintiff''s right to rent except for the year
for which it is claimed. In Vythilinga Mudaliar Vs. Ramachendra Naicker, cited by Dr. Swaminathan for the respondent the question raised in the
earlier suit for rent was whether the defendant was ill possession of all the lands for which rent was claimed. This court held that any finding on the
question would not be res judicata in a suit for rent for a subsequent year as the land of which the defendant was in possession might not have been
the same in both the years. Subramania Ayyar, J. whose judgment was concurred in by Sankaran Nair, J.observed however that a decision on a
point which would affect the right to rent for both the yearn could not be disputed in the later suit. He observed ""no doubt had the decision in the
previous suit been to the effect that certain specific parcels constituted part of the inam, the choultry in the present suit could not, if it admitted the
possession during the period in question here of those parcels, seek to make out that the parcels were not inam,"" Nil Madhub Sarkar v. Brojo
Nath Singha (1894) 21 Calc. 236 is probably supportable on simitar grounds, although some of the observations in the judgment seem to be open
to exception. In a very recent case Kali Kumar v. Bidhu Bhusan (1912) 16 C.L.J. 89, Mookerjee and Teunon, JJ. held that an issue raised on the
disputed point in a suit for rent and decided by a court would operate as res judicata in a subsequent suit for rent. Mookerjee,J. considers the
point as settled beyond all controversy and refers to Ekabbar Sheikh v. Kara Bewah (1911) 13 C.L.J 1 and Kara Chandra Bairagi v. Bepin
Behari Das (1911) 13 C.L.J. 38 in support of his statement. The same view was taken by another bench of the Calcutta High Court in Maharani
Beni Parshad v. Raj Kumar (1912) 16 C.L.J 124. Sometimes in a suit for rent by a landlord against his tenant, a third party intervenes and claims
the land as his own and it becomes difficult to decide whether a decision in the suit as to the plaintiff''s right to rent would be res judicata in a
subsequent suit regarding the title between the plaintiff in the previous suit and the intervener. The questions material for deciding a right to rent as
against a particular tenant are of course very different from the considerations that will arise in a suit for title between rival landlords. If the suit was
in fact expressly or impliedly allowed to be expanded in character and was regarded also as one for the declaration of the landlord''s title as against
the intervener and a decision as to title was arrived at, the finding might be res judicata in any subsequent proceedings between the two rival
landlords. But a mere decree for rent against a tenant need not amount to any decision in a contest about title. This was the ground on which'' the
decision of the Privy Council in Run Bahadur Singh v. Lucho Koer (1885) 11 Calc. 301 proceeded, though estoppel by res judicata was avoided
in that case on the ground also of the absence of concurrent jurisdiction in the court that decided the previous suit. In the present case the question
raised in the previous suit, Original Suit No. 430 of 1906 was whether the patta tendered was proper. The terms in question did not relate to any
incidents special for the year fasli 1314 but to the relationship between the plaintiff and the defendants generally as the owners of melwaram and
the kudivaram interest in the land respectively. Section 4 of the Rent Recovery Act VIII of 1865 required that the rent payable and all other
material incidents of the tenancy should be stated in the patta to be tendered to the tenant and according to Section 7 of the Act no suit was
maintainable unless the landlord had previously tendered to the tenant such a patta as he was bound to accept. The defendants were not bound to
accept a patta which was incorrect in any particular. If the extent was wrongly stated or the rent was stated to be payable in kind while any portion
of it was not, they could refuse to accept the patta. The plea raised by them in substance was that there were defects in the patta which entitled
them not to accept it and that the suit should therefore be dismissed. The question therefore was whether there were any such defects in the patta.
The trial would of course proceed on the defects which the defendants insisted on. With regard to the issue whether the patta was proper or not
the defendants wore bound to raise all objections that they could to the contents of the patta and if they failed to do so they must be taken to have
raised them and all points that they could have raised must be taken to have been impliedly decided against them. Suppose the defence in this case
was that the plaintiff was not the holder at all of the plaint lands. Suppose that, though the defendants raised that defence in the previous suit, the
matter was not explicitly decided; or suppose they did not raise the defence at all. The question being one which related not merely to the rent for
the particular year, 1317, but to the plaintiff''s right to claim rent for any year the matter must be regarded as res judicata. It has been established
by the cases in this court that a decision with regard to the proper terms of a patta to be tendered by a landholder to his right for any one year is
res judicata with regard to subsequent years, unless the terms related specially to the particular year or there was a change in the terms of the
tenancy, Sree Venkatachalapati v. Krishna ILR (1990) Mad. 287 and Sellappa Chatty or v. Velayutha Tevan ILR (1907) Mad. 498. In the latter
case the tenant did not object in the earlier suit to some of the stipulations in the patta. It was held by Benson and Wallis, JJ., that estoppel by res
judicata was nevertheless applicable to the case, Sankaran Nair,J. distinguishes it from the present case on the ground that on both the suits wore
to enforce accepta nce of pattas and not for rent and that the decision that the patta, is proper would necessarily involve a finding that the lands
referred to in the patta belong to the plaintiff. But the question raised related to so