Tepu Khan and two others vs Rojoni Mohun Das and Srish Chundra Das and others

Maclean, C.J.—Although I was a party to this reference, I am not quite satisfied, after the discussion which we have heard to day, that the question submitted in its broader aspect really arises. In my opinion, the judgments in question are not admissible in evidence in this suit, because, now that the matter has been fully laid before us, it appears that the subject-matter of the present suit is not identical with the subject-matter in the previous suits in which those judgments were delivered. In the previous suit the subject-matter was to recover a two-thirds share of the property in question; but in the present case it is a suit by a different Plaintiff to recover the remaining one third share. The subject-matter, therefore, of the two suits is not identical: the title to the one-third share may be, and apparently is, different from that of the other shares. In this view the judgments which were sought to be admitted as evidence in this case were irrelevant, and, therefore, not admissible as evidence. This point, so far as I recollect, I am speaking only from memory, was not very clearly brought to the attention of Mr. Justice Banerjee and myself an the previous occasion, and if it had been, we might possibly have thought that this reference was not necessary. But as the two cases decided by the bull Bench in this Court, the case of Gujju Lall v. Fatteh Lall I. I. R. 6 Cal. 171 and a later case of Surendra Nath Pal Chowdhry v. Brojo Nath Pal Chowdhry (2), have been referred to, I feel bound to express my opinion that having regard to the recent observations of the Privy Council in the case of Ram Ranjan Chakerbati v. Ram Narain Singh (3) and in the more recent case of Bhitto Kunwar v. Kesho Pershad (4), the Full Bench decisions referred to must be regarded as materially qualified, because it is clear from the decisions in the Privy Council that under certain circumstances, and in certain cases, the judgment in a previous suit to which one of the parties in the subsequent suit was not a party, may be admissible in evidence for certain purposes and with certain objects in the subsequent suit. The decree in the present suit in favour of the Plaintiff must be limited to a one-third share of 8 bighas and odd cottahs only. Subject to the decree being varied to that extent, the appeal fails, and must be dismissed with costs including the costs of this reference.

Macpherson, J.

I agree in the view expressed by the learned Chief Justice.

Trevelyan, J.

I also agree.

Banerjee. J.

I agree with the learned Chief Justice in holding that the rule laid down in the cases of Gujju Lall v. Fatteh Lall I. L. R. 6 Cal. 171 and Surendra Nath Pal Chowdhry v. Brojo Nath Pal Chowdhry I. L. R. 13 Cal. 352, must be taken to base been materially qualified by the decisions in the Privy Council in the cases of Ram Ranjan Chakerbati v. Ram Narain Singh I. L. R. 22 Cal. 533; L. R. 22 I. A. 60 and Bhitto Kunwar v. Kesho Pershad L. R. 24 I. A. 10; 1 C. W. N. 265. Upon the question whether the judgment mentioned in the referring order is admissible or not, I feel bound to say that 1 am not quite satisfied that the mere fact of the subject-matter of the present suit being a one-third share in the properly in dispute, whereas the subject-matter of the previous suit was the remaining two-thirds of the same property, would make any real difference in the case, having regard to the nature of the case made by the parties to the suit. For the reasons given by me in the n furring order, I still have my doubts as to whether the lower Appellate Court was right in excluding that judgment altogether. But I must add that my doubts on the point are not so strong as to justify my expressing myself in the language of positive dissent.

Jenkins, J.

I agree with the learned Chief Justice.