Vellachamy vs K. P. A. N. R. Muthiah Chetty and Others

Curgenven, J.—The petitioner with certain others was in occupation of land which was formerly a charitable inam. On the ground that the

charity was not being properly served the Government resumed the inam and directed the issue of ryotwari pattas. A rough patta was accordingly

issued to the petitioner, among others, but upon an appeal by the former inamdars to the Settlement Officer this issue was cancelled and the

inamdars themselves secured the pattas. The petitioner with his companions then sued for a declaration that he was entitled to the kudivaram

interest, and this issue was decided by the District Munsif in his favour; but the Court found against them on the question of limitation and dismissed

the suit. An appeal against that decision is now pending. Meanwhile the plaintiffs who are purchasers from the inamdars have brought suits against

the individual occupants, One of whom is the petitioner, to recover rent from them for the period of three years before suit. The petitioner and the

other defendants have filed applications for the stay of these u/s 10, Civil P. C., pending the disposal of the appeal in the other proceedings, and it

is against the dismissal of one of these applications that the present revision petition is presented.

The ground upon which the learned District Munsif has dismissed the application is that, whereas in the earlier suit the petitioner and his

coplaintiffs asked only for a declaration of their kudivaram right, with what he terms the auxiliary relief of the setting aside of the survey officer''s

order granting patta to the inamdars, in the present suit far larger issues are involved. From an earlier passage in his order the ""larger issues"" appear

to comprehend a claim by the inamdars to both the melwaram and the kudivaram interests. It is true that there are some statements in the pleadings

which, read without reference to indisputable facts, would make it a matter of difficulty to ascertain precisely what the parties were claiming. But it

is clear that the melwaram interest passed to the Government and the only question could be in whom the kudivaram interest or occupancy right

vested. That was the fundamental issue raised in the petitioner''s suit, and the same issue must arise-e in these rent suits. If the plaintiffs in those suits

are entitled to rent, it must be as holders of the occupancy rights, and not as melwaramdars. I agree therefore with the petitioner''s vakil that the

issue which inquires which party enjoys rights of permanent occupancy is common to, and indeed the primary issue in, each suit.

But although there is a common issue, each suit has other issues peculiar to itself: in the petitioner''s suit the question of limitation and of the

validity of the Settlement Officer''s order; and in the respondents'' suit the question of the petitioner''s tenancy and of the rent, if any, due. The point

of decision accordingly is whether Section 10 can be applied by force of the circumstances that both suits comprise a common issue which, if the

earlier suit had been decided, would operate as res judicata between the parties. It is to be observed that the section requires that ""the matter in

issue"" in the later suit should be directly and substantially in issue in the earlier, and the use of the definite article suggests that the rule will not apply

where only ""a matter in issue"" is common. The Code of 1882 made the scope of the rule clear by requiring that the two suits should be framed for

the same relief ""; but the omission of those words from the section, as it now stands, although it must have been done with the object of widening

the rule''s application, still only renders it certainly applicable to two suits of which the matter in issue is identical, although the reliefs'' asked for may

differ. That it does not apply to two suits merely because they have one issue in common has been held by Venkatasubba Rao, J., in Sreeramulu v.

Sreeramulu A. I. R. 1922 Mad. 304 following a Calcutta decision, Bepin Behari Mozumdar v. jogendra Chandra Ghosh [1916] Cri. L. J. 514 in

which the words"" the matter in issue "" were deemed to denote, ""the entire subject in controversy"" in the former suit between the parties. Adopting

this test here the matter in controversy was whether the petitioner or the respondents were entitled to have patta, and in the latter, whether the

respondents are entitled to recover rent. In Ramchandram Pillai v. Neelambal Achi A. I. R. 1923 Mad. 88 the statement of facts is not sufficiently

explicit to render it clear whether the case would have answered to the above test, although the learned Judge observes that:

the disposal of the issue in the first suit will practically dispose of the second suit

But Kuberan Nabudri v. Koman Nal. A. I. R. 1925 Mad. 574 is another authority for the position that community of a single issue in that case

the question of an adoption, will not attract the provisions of Section 10. I would prefer not to rely upon Choudhuri Jamini Nath Mullick and

Others Vs. Midnapur Zemindary Company, because there the latter suit was for cesses which fell due after the former suit had been brought and

different considerations may arise. Following, however, the construction consistently placed upon the section by this High Court, in the few

reported cases available, I must hold that the learned District Munsif had jurisdiction to refuse to stay the suit. The civil revision petition is dismissed

with costs.