Judgement

Consolidated Appeal (No. 78 of 1925) from two decrees of the High Court (March 3, 1924) reversing two decrees of the Subordinate Judge of 24 Parganas.

The first of the two suits (No. 155 of 1919) giving rise to the consolidated appeal was brought by the above-named respondents, two family idols represented by a shebait, against the appellant and other members of the family, for a declaration that certain property was owned by the idols as debottar. The second suit (No. 214 of 1919) was brought by the above-named appellant, first defendant in the first suit, against the other members of the family, for a declaration that the property was ancestral property in which he had a two annas share, and for partition. The appellant by his written statement in the first suit pleaded that having regard to the decision of a previous suit (No. 206 of 1915) it was res judicata that the properties were not debottar. That suit was one between members of the family, the plaint describing the plaintiffs and defendants as shebaits of one of the idols and praying for a scheme of management. The defendants included the appellant and the shebait who represented the idols in suit No. 155 of 1919.

The facts appear fully from the judgment of the Judicial Committee.

In suit No. 155 of 1919 the Subordinate Judge found on the evidence that the property had not been dedicated to the idols; he was of opinion also that that was res judicata under the decision in the suit of 1915. Accordingly he dismissed suit No. 155 of 1919 and made a decree for partition in suit No. 214 of 1919, which was tried later.

Appeals in both suits were heard by the High Court together and were allowed.

The learned judges (Chatterjea and Cuming JJ.), while rejecting a contention that suit No. 206 of 1915 could not be regarded as brought by the idol, held that the above finding in the earlier suit did not operate as res judicata; they so held mainly on the grounds that the Court had held that the suit was not maintainable as framed, and that the decision as to the character of the property was merely incidental and not necessary to the decree. The learned judges found on the evidence that the property had been dedicated to the idols.

1927. March 7, 8, 10, 11. De Gruyther K.C., and Kenworthy Brown for the appellant. That the property was not debottar was res judicata under the decision in suit No. 206 of 1915. That question was directly and substantially in issue in that suit; it is not material that it was also held that the suit was not maintainable Peary Mohan Mukerjee v. Ambica Churn Bandopadya (( 1897) I. L. R. 24 C. 900.); followed in Rambehari Sarkar v. Surendra Nath Ghose. (( 1914) 19 Cal. L. J. 34.) So far as Shib Charan Lal v. Baghu Nath (( 1895) I. L.R. 17 A. 174.) held otherwise, it was wrongly decided. If either issue in the suit of 1915 was incidental, it was the other issue. The Court intended to decide the issue whether the property was debottar, therefore, it is res judicata Chaudhri Risal Singh v. Balwant Singh. (( 1918) L. R. 46 I. A. 168,177.) Even if the question was not res judicata under the Code of Civil Procedure, 1908, s. 11, it was so under the general law of res judicata, which is also applicable Krishna Behari v. Brojeswari Choudranee (( 1875) L. R. 2 I. A. 283,285.) ; Hook v. Administrator General (( 1921) L. R. 48 I. A. 187.) ; Ramachandra Rao v. Ramachandra Rao. (( 1922) L. R. 49 I. A. 129,137.) The suit of 1915 was in substance one on behalf of the idol, as was held by the High Court; it was not a suit in relation to the personal rights of the shebaits Babijirao

v. Laxmandas. (( 1903) I. L. R. 28 B. 216,223.) On the evidence it was not established that the property was debottar.

Sir George Lowndes K.C., and Dube for the respondents. The decision in suit No. 206 of 1915 raised no res judicata in suit No. 155 of 199. Only one idol was concerned in the former suit, the latter suit is brought by two idols; the idols are distinct, one representin