The decision in a previous suit did not support a plea of res judicata, and the trial judge did not decide the issues related to the surrender.

Sir John Beaumont.-

This is an appeal from a judgment and decree of the High Court at Calcutta in its Civil Appellate Jurisdiction dated 23rd February 1944, reversing a judgment and decree of the said High Court in its Original Civil Jurisdiction in favour of Mangtulal Bagaria, the predecessor in title of the appellant, whereby it was ordered that the adult defendants personally and the infant defendants out of their shares in their joint family estate should pay to the said Mangtulal Bagaria the sum of Rs. 73,186 with interest and costs.

2. The facts leading up to the suit out of which this appeal arises are long and complicated and have been related in the judgments delivered by the learned Judges in the Court of Appeal in India. No useful purpose will be served by repeating them. The only matter which has been argued in this appeal relates to what was the exact decision given by the trial Judge, Ameer Ali J.

3. The suit was a suit by Mangtulal Bagaria for royalties due under a lease made in the year 1920 by Popat Velji Rajdeo of whose estate the said Mangtulal had been appointed manager by the Court. The defendants were the lessees under the lease or their representatives and are the respondents in this appeal. The defence of the lessees was that the lease had been surrendered in July 1933. In answer to this defence the plaintiff challenged the surrender and also pleaded that the point was covered by res judicata.

4. The issues framed in the suit were these :

"Group-A.- 1. Is the defence barred by res judicata : (i) On the questions of surrender by the judgment and decree in the Dhanbad 28 of 1933 Case and appeal 27 of 38 therefrom. (ii) On the question of the plaintiff's right to sue by (a) The decree in suit No. 1571 of 1933 (b) The judgment and decree in the Dhanbad Case?

2. Have the defendants disclosed any defence in the absence of any alleged surrender to or with the leave of the Administration Court in Suit No. 2156 of 1924 in Calcutta High Court ?

Group-B.- 3. Was there a surrender?

4. If so, was it valid ? (a) In the absence of registration. (b) For non-fulfilment of the requisite conditions?

5. Was the alleged surrender bona fide and is it binding on the plaintiff?

5. It will be observed that the first issue in group A relates to a plea of res judicata. The second issue in that group raised the question whether there was any defence apart from surrender, and no such defence was suggested at the trial. Group B raised questions as to the fact and validity of the alleged surrender.

6. The plea of res judicata was based on a judgment of the Subordinate Judge of Dhanbad delivered on 13th August 1936, in Suit No. 28 of 1933. The appellant before the Board did not rely on the decree in Suit No. 1571 of 1933 referred to in issue 1 (ii) (a). In the Dhanbad suit the lessees sued Mangtulal and the two widows and brother of the lessor for a declaration that the lease had been validly surrendered in July 1933. The learned Judge held that the suit did not lie since notice should have been served on Mangtulal under S. 80, Civil PC and this had not been done. The learned Judge, however, though holding that the suit did not lie, purported to decide other issues in the case. Amongst other things, he held that the notice of surrender had not been served on any of the defendants except Mangtulal, and that the surrender was bad on that ground, and also for lack of tender of the amount due and absence of a registered deed. An appeal from the decree of the Subordinate Judge was brought to the High Court at Patna. Such appeal was withdrawn against Mangtulal and the brother of the lessor, but a consent decree was taken against the two widows upholding the surrender.

7. On 28th April 1939, Mangtulal was given leave by the High Court at Calcutta to institute the suit out of which this appeal arises. Accordingly as manager of the estate of the lessor he filed a suit against the defendants for the recovery of Rs. 64.020 due under the said lease for the p