The Honourable Raja Rajeswara Sethupathi alias Muthuramalinga Sethupathi, Raja of Ramnad by his authorised Dewan S. Tirumalai Aiyangar vs Ramanathaswami at Rameswaram by Trustee V. Venkatasubba Aiyar

Napier, J.—This Second Appeal arises out of a suit by the zemindar of Ramnad to recover thecrva from the trustee of the Rameswaram

temple for trees growing on the land attached to the temple. The written statement alleged first that the topes belonging to the temple were

devadayam land and that the temple is not liable to any theerva in law or by custom ; secondly, that the suit was barred by Section 11, Civil

Procedure Code, by virtue of two decrees, one that of the District Court at Madura on appeal in O.S. Nos. 288 and 289 of 1879, the other in

O.S. Nos. 571 and 572 of 1903 in the Court of the District Munsiff of Paramafudi. Issues were framed, the third issue being "" Whether the

plaintiff''s claim is barred by res judicata?"" The District Munsif decided against the defendant in respect of both judgments pleaded as res judicata,

but the lower appellate court has reversed that decision holding that both these decisions operated as res judicata. This question now comes before

us for decision.

With regard to the judgment and decree of the District judge of Madura, the lower appellate court is clearly in error. [His Lordship next

considers the evidence relating to the plea.

A far more difficult question arises with regard to the plea of res judicata in respect of the award and judgment in O.S. Nos. 571 and 572 of

1903. At the time when this latter suit was brought the trustee of the Devasthanam was himself a lessee of the whole Zemindari. It appears that one

Lakshmanan Chetty was a co-lessee. The two lessees brought O.S. ,Nos. 571 and 572 of 1903 against one of themselves as trustee of the temple

in respect of tree tax from the temple. The allegations were that the lessees had tendered proper pattahs for faslies 1309, 1310 and 1311, and the

defendant had refused to accept them. Nothing is said about the tree tax in the pLalnt. In the written statement however the trustee-defendant

pleaded that the lessees were not entitled to get the theerva imposed on the topes of the Rameswaram Devasthanam. They also pleaded that the

suit was barred by res judicata u/s 13, CPC by virtue of the decisions in Appeals Nos. 243 244 against O.S. Nos. 288 and 29 of 1879. No issues

were settled in the case by the court but by consent the whole suit was remitted to arbitration. It is obvious that this was in the nature of a friendly

suit, and I have little doubt that the trustee in his position as lessee wished to get a decision which would cover the whole period of his lease which

was for twenty years. The following issues were framed by the arbitrator with the consent of the pleaders. "" Whether the suits were barred by

Section 13 of the CPC by reason of the decrees in A.S. Nos, 243 and 244 of 1880 of the District Court of Madura as alleged by the defendant?

Whether the defendant is estopped from raising that contention by the conduct of his predecessors in paying tax for the trees till fasli 1310? and

whether such payment was due to mistake? ""The arbitrator issued an award in which he found that the suits were barred by reason of the decrees

in A. S. Nos. 243 and 244 of 1880. I have already shown that this finding is absolutely incorrect. He then proceeded as follows: - ""Apart from the

question whether Ex. 1 can operate as res judicata, it seems to me that the reasoning upon which that decision is based applies equally to the

present suits and disentitles the plaintiff to any rent in respect of the pLalnt mentioned lands and trees standing thereon, forming part of the pagoda

Devadayam."" The reasoning on which the decision was based is, as I have pointed out already, a contradiction in terms for the decree confirmed

the judgment making the defendant trustee liable for the tree tax, and any observation in the judgment cannot affect the decree. Therefore this

ground for decision is wrong. But the decision by the arbitrator remains whether it was right or wrong. The award was tiled in court, and certain

objections were put in, the nature of which appears from the order of the District Munsiff. They were based on the refusal to grant an adjournment

and that the decision on the question of law and fact was erroneous. The District Munsiff held that those were matters into which he could not go

and concludes his judgment by saying ""In pursuance of the award of the arbitrator the suit must stand dismissed."" It was not urged by the defendant

in the suit that the arbitrator''s award by itself operated as res judicata, nor was that question argued before us because the written statement relied

on the judgment''and the decree of the District Munsiff. But it has been strenuously argued before us that the finding on the issue of res judicata is

binding by virtue of the judgment and that by virtue of explanation 4 any other plea which could have been raised must also be res judicata. We

have therefore to see whether Section 11 CPC does or does not apply.

[His Lordship after considering the question at length Concludes thus.] In the result I am of opinion that the plea of res judicata by virtue of

Section 11 CPC is bad. It might be that in the circumstances of the ''case the award and the judgment might operate as a judgment by consent and

estop the parties to that award-suit, but no such question has been raised in this case ox urged before us.

The next question is whether even if the judgment could operate as res judicata the plaintiff here would be bound by the judgment and decree in

the arbitration. The plaintiff in that suit was a lessee for 20 years ; and it is not contended before us that the decision in that case binds the plaintiff

as lessor. What is contended is that as this suit seeks to recover thecrva for the years which were covered by the original lease to the lessee in the

former suit, the lessor is bound by the decision, he being in possession of the estate by virtue of a surrender from the lessee. This point was not

raised before or considered by the lower appellate court. Mr. T. Ranga-chariar contends that the right established by that decision to freedom

from theerwa enures for the whole term of the lease although the lease has been surrendered; and he claims that he is entitled to it by analogy with

the estoppel provided for in Section 41 of the Transfer of Property Act. He was doubtful whether he could put this claim as high as one arising

under the words of Section 11 which are ""or between the parties under whom they or any of them claim litigating under the same title."" In my

opinion his contention clearly cannot be supported, for the plaintiff is not litigating uncfer the same title. In that, he claims as owner whereas the

plaintiff in the previous suit claimed as a lessee under him.

Mr. T. Rangachariar suggests however that a surrenderee is in the same position as an assignee, and he relies on the language of the Calcutta

High Court in Raghunath Singh v. William Cox (1919) 19 C.W.N. 208 . The question there was as to the effect of surrender by a ryot on the

rights of the mortgagee. The Court quoted with approval the language of Channel, J. in Walter v. Yalden (1902) 2 K.B. 304 . In that case it was

decided that where a trespasser had acquired against a lessee a title under the statute of limitations, the lessee could not surrender the lease and let

in the landlord until the expiration of the term for which the lease was granted. The actual decision does not assist him because, in the English law

as well as by the Limitation Act, title is acquired by adverse possession; and such title is for all purposes as good as a conveyance. But he relies on

the words used by Channel, J.: ""The law is that a lessee can only give title to his lessor by a surrender to the same extent that he could give it to

another person by his assignment. ""I do not think that these words used by the learned judge are to be construed strictly as laying down that a

lessor acquires the title of the lessee by surrender. Another case relied on by the learned vakil was Seshappaya v. Venhataramana Upadya I.L.R.

(1909) Mad. 459 . That decided that a mulgeni tenant will not be bound by a decision against his lessor as his interest is not subordinate to that of

the lessor, the tenure being a permanent heritable tenure not created subsequent to the ""decision against his landlord. I do not see how this case

helps the defendant. Mr. T. Rangachariar also relies on the language of the Bench in Suppa Bhattar v. Suppu Sokkaya Bhattar (1915) 29 M.L.J.

558 where the learned judges speak of ""a decree of a Court of competent jurisdiction forming a link in the chain of a party''s title."" I do not think

that this case is of any assistance, for the word ""title"" used in that. case has no possible reference to a decision on the mutual rights of the lessor and

the lessee under the terms of their contract. Mr. T. Rangachariar relied on a phrase used in Foa''s Landlord and Tenant on page 624, ""Title by

Surrender,"" but 1 cannot treat this language as any authority on the point. In Woodfall''s Landlord and Tenant surrender is treated as one of the

mode of the termination of the tenancy and the same principle is applied in Section 111. of the Transfer of Property Act. Sub-section (e) of that

section provides that a lease of immovable property determines "" by express surrender; that is to say, in case the lessee yields up his interest under

the lease to the lessor by mutual agreement between them;"" and Section 115 provides for the effect of surrender on underleases; but there are no

further statutory provisions. The fundamental error in the contention of the learned vakil is that res judicata operates on all substantive rights. The

result of a decision between parties is at the highest to raise an estoppel between the parties bound by the previous judgment. It in no way affects

title nor can it operate in the same manner as a covenant.

It was finally argued that the defendant by surrender has been deprived of the benefit of the decision. That may be so but the question of rights

between the lessor and the lessee is not concluded by the failure of the plea of res judicata, and further if an underlessee desires to bind theultimate

landlord by a decision between himself and his lessor it is perfectly open for him to ask the court to make the landlord a party, in which case the

landlord will be bound by the judgment entirely apart from any question of surrender. I am therefore clear that neither u/s 11, CPC as pleaded, nor

under the general principle applicable to awards of arbitrators operating as estoppel by consent does this award or judgment bind the plaintiff in the

present suit

In the result the judgment of the Lower Appellate Court must be set aside except as to road cess and railway cess and interest thereon and the

case remanded to be disposed of on the other issue framed in the suit. Costs will abide and follow the result. Stamp duty paid by the Appellant will

be refunded.

Krishnan, J.

The only question arising in this case is one of res judicata, My learned brother has set out the circumstances in which it arises and I need not

repeat them. The issue alleged to be res judicata is whether the plaintiff the Rajah of Ramnad is entitled to levy a tax on trees standing on the

defendant Devasthanam''s lands in the Pamban village in Rameswaram or not. It is coptended by the defendant that the Rajah''s claim to such tax is

barred (1) by the decision in O.S. Nos. 288 and 289 of 1879 and (2) by the decision in O.S. Nos. 571 and 572 of 1903, all on the file of the

District Munsif of Paramakudi.

The next question is whether the decision in O.S. 571 and 572 of 1903 has the effect of making the issue res judicata in this case. Here again

the facts are fully set out by my learned brother and I will not repeat them. The question has been argued as consisting of two parts, namely, (1)

whether when the court has accepted the award of the arbitrator and dismissed the suits in accordance with it did the arbitrator''s finding become

res judicata between the parties to ''the suits and (2) whether if the parties were barred, does the bar extend to the Rajah who was not a party to

those suits?

If either of these questions is answered in the negative this plea of res judicata must fall. My learned brother has answered both the questions jn

the negative but with all respect I am unable to agree with him on the answer to the first question. [His Lordship then discusses the question and

comes to the conclusion that the arbitrator''s rifding was res judicata between the parties.]

The question, however, remains whether that finding binds the present plaintiff the Rajah. The plaintiffs in O.S. Nos. 571 and 572 of 1903

were the lessees of the Rajah and not the Rajah himselfc.and it is not contended by Mr. T. Rangachariar that a finding against the lessees will be

binding on the lessor even if the lessees had put forward in the trial the lessor''s title and bona fide endeavoured to support it. In fact a lessor as

such cannot be held to be a person claiming under the lessees within the meaning of Section 11, Civil Procedure Code. But Mr. T. Rangachariar

argues that we have here a special case inasmuch as the Rajah got his right to Sue for the pLalnt rent by reason of the surrender of their term by

the lessees and though he did not derive his title from them and he contends that the Rajah should be treated in his""capacity of surrenderee as an

assignee of the lessees and as such a person claiming under them. This is a difficult question which seems to be yes integra and which has therefore

to be decided on general principles. After careful"" consideration 1 think with my learned brother that the contention is untenable. The effect of a

surrender of his lease by the lessee is to determine the tenancy and to let in the landlord''s rights. This is so stated in Section Ill of the Transfer of

Property Act and as regards English Law in Woodfall''s Landlord add Tenant."" In a surrender there is no transfer rights from one to the other but

only an extinguishment of the lessee''s rights. The under lessees will no doubt not be prejudiced by their lessor''s surrender as Laid down in Section

115, Transfer of Property Act, but that is because to the extent to which the lessee has parted with his rights in the property to his under-lessees

his surrender could not take effect. It is this I think that is meant by the observation of Channel, in Walter v. Yalden (1902) 2 K.B. 304 when his

Lordship observed that ""the law is that a lessee can only give title to his lessor by swrrender to the same extent that he could give it to another

person by his assignment."" This observation was made with reference to a title created by prescription against the.lessee and cannot be extended

to apply to a case of res judicata against him which in my opinion creates no title nor interest in property. '' We cannot hold that the rule of res

judicata creates any right or interest in the property though it may indirectly affect the rights of persons against whom it is effective. The rule is a rule

of personal estoppel and does not attach itself to property. A lessee may defeat by surrender the advantage of res judicata which another has

against him; there is nothing to prevent him from doing so, so far as I can see. If the third party had wanted to bind the landlord by the decision he

should have taken care to have had him made also a party to the suit. I therefore agree that no estoppel arises from the decision in O.S. Nos. 571

and 572 of 1903 against the Rajah.

The plea of res judicata failing in toto I agree to the order proposed by my learned brother.