The application of Section 116 of the Indian Evidence Act and the principle that the failure to have a question adjudicated upon does not always operate as res judicata.

Oldfield, J.

1. I think that the learned Judge was right in his order of remand, because the previous judgment was not res judicata. In the previous proceedings defendants were, I hold, debarred from raising the question of plaintiffs title with reference to Section 116 of the Indian Evidence Act and neither authority nor reason has been shown for applying that provision only to tenants admitted to possession at the beginning of the lease and not to persons who are already in possession and continue in it. Vide also Madras Hindu Mutual Benefit Permanant Fund v. Raghava Chetti 19 M. 200. The appeal is dismissed with costs.

Tyabji, J.

2. This is an appeal from a decision of the learned District Judge who remanded the case for hearing on the merits on the ground that the matter now in issue between the parties was not res judicata. The matter in issue now between the parties is whether the defendant has title to the land referred to in the plaint. In the previous decision the plaintiff had sued the defendant for rent and had obtained a decree. The learned District Judge held that the District Munsif had somewhat studiously avoided considering and deciding the question of title" in the previous suit. It is argued, however, that the question of title was a matter within Explanation IV of Section 11 of the Civil Procedure Code. One answer to this argument is, the defendant could not have questioned the plaintiffs title, being estopped by Section 116 of the Evidence Act. In answer to this it is contended that Section 116 would not have, estopped; the defendant who was not let into possession by the plaintiff and that it is only in such cases that the estoppel referred to in the section applies. But the question for the purpose of res judicata is not merely whether the matter might have been made a ground of defence, but that it ought to have been so made a ground. It is unnecessary to express any opinion on the question whether the decisions in Annayyan v. Chinnan 5 Ind. Cas. 84 : 7 M.L.T. 149 : 33 M. 366 : 20 M.L.J. 355 and Rup Chand Ghosh v. Sarveswar Chandra 10 C.W.N. 747 : 3 C.L.J. 629 : 33 C. 915 lay down that the estoppel in Section 116 applies only to a tenant who having obtained possession from a person as his landlord subsequently wishes to deny that the person from whom he has derived possession was entitled to give him possession, whether, in other words, the principle is restricted to a person who has derived property from another disputing the title of the person from whom he has derived it--or whether the section is wide enough to have estopped the defendant in the previous suit from questioning the title of the plaintiff though the defendant had not obtained possession from the plaintiff.

3. Assuming that the defence was available to the defendant, I take Thyila Kandi Ummatha v. Thyila Kandi Cheria Kunhamed 4 M. 308 to be authority for the proposition that the failure to have the question adjudicated upon does not always and necessarily operate as res judicata. Assuming that it might have been made a ground of defence, I cannot say that it ought to have been so made.