1912 Supreme(Mad) 465

IN THE HIGH COURT OF MARAS
Wallis, S Aiyar, S Aiyar
Bommidi Bayyan Naidu
Versus
Bommidi Suryanarayana, Minor, By
Decided On : 9 September, 1912

Headnote:

The extent of the defendants holding under the plaintiff is res judicata by reason of the decision in Original Suit No. 430 of 1906. In that case, the present plaintiff who held a five years lease of the village from the registered landholders, sued the present defendant to recover rent for Faslis 1314 and 1315, in the shape of rajabagam or land-holders share of the produce, of certain jeroyati lauds in the village in the occupation of the defendant. To enable the plaintiff to succeed, it was necessary for him to show, under Section 7 of the Rent Recovery Act, 1865, that he had tendered a proper patta to the defendant for each fasli, or that it had been agreed to dispense with the tender. Under Section 4, the patta had to contain the local description and extent of the land. The plaintiff pleaded that he has tendered a proper patta for each fasli. The defendant denied the tenders and pleaded further that the pattas alleged to have been tendered were not proper, instancing certain payments claimed. He pleaded further that the extent of the defendants jeroyati land (that is, of the land in respect of which the plaintiff I think that must be taken as referring to the extent in patta as well as to the extent in the plaint, which would merely reproduce it, and I think that the District Munsif who tried the case so understood it, as in his careful summary of the written statement he makes no express mention of the plea as to the extent of the land and evidently treats it as part of the plea that the pattas tendered were improper, and I think it was also covered by the issue "whether the alleged tendered patta was valid and binding on the defendant." If this view of the pleadings is correct, there is an end of the case, because the question of the extent of the defendants holding of jeroyati land in the village having been directly and substantially in issue and having been, as we must take it, heard and determined because essential to the decision of the suit, cannot be raised again is the present suit for the rent of Fasli 1316 by the defendants setting up that he was all along in occupation of only 5 acres of jeroyati land in the village and not of the extent all along claimed by the plaintiff.

Fact of the Case:

The plaintiff, a landlord, sued the defendants, his ryots, for the recovery of rent from the Fasli year 1316. According to the plaintiffs case, the defendants were in possession of about 14 acres of jeroyati lands under him liable to pay waram or rent in kind. The 1st defendant, the undivided father of the 2nd defendant, contended that he held only 5 acres of jeroyiti lands and that he held in addition 10 acres of inam and 3 acres of cash rent paying lands and denied that any patta was tendered to him for the fasli in question as alleged by the plaintiff. The correctness of the patta alleged to have been tendered was also denied. The 7th issue framed by the Munsif raised the question "whether the alleged tendered patta was valid and binding on the defendant." The 8th issue was "whether the whole of the 14 acres of land mentioned in the plaint is defendants jeroyati as alleged by the plaintiff, or only 5 acres jeroyiti and the rest inam and cash rent paying land as alleged by the defendants." At the hearing, a farther question was raised whether the question of the propriety of the patta tendered was res judicata in consequence of the decision of the Court in Original Suit No. 430 of 1906, which related to a suit for rent instituted by the plaintiff against the defendants for Fasli 1314.

Finding of the Court:

The District Munsif held that the matter was not res judicata because the points in dispute were not raised in the previous suit, these points being the inclusion of inams and of money rent paying lands as waram paying lands, and the erroneous description of the lands for which the plaintiff is entitled to claim rent. On the merits he held that the patta tendered was not a proper one. He was of opinion that part of the lands included in the patta was inam and was wrongly claimed by the plaintiff as jeroyati. He did not decide the question whether cash rent and not rent in kind was payable for part of the land. He apparently thought that the patta must be held to be incorrect in stating that waram was payable while cash rent was received till the end of Fasli 1313. The mistake complained of with regard to the description of the land was that the eastern boundary was described as the service inam of the defendant, while in the patta for Faslis 1313, 1314, it was described merely as defendants inam. This was held by the Munsif to be improper although he did not decide the question whether the description of the boundary of the defendants land as service inam was in fact correct or not. He dismissed the plaintiffs suit. His judgment was confirmed on appeal by the District Judge, who upheld the Munsifs view on the question of res judicata. The Judge observed on the Question of the correctness of the patta as follows: "Appellant does not seriously argue that the patta was a proper one." The plaintiff preferred a second appeal to this Court. The question argued in second appeal was that the propriety of the patta was res judicata by the judgment in Original Suit No. 430 of 1906. The appeal came on for hearing before Munro and Sankaran Nair, JJ. The learned Judges differed in their views; Munro, J., being of opinion that the plea of res judicata must be upheld, while Sankaran Nair, J., agreed with the opinion of the lower Courts that it should not be maintained. In the result, the second appeal was dismissed in accordance with the provisions of Section 98(2) of the Civil Procedure Code. The present appeal is, therefore, substantially against the judgment of Sankaran Nair, J.

Issues: 1. Whether the question of the propriety of the patta tendered was res judicata in consequence of the decision of the Court in Original Suit No. 430 of 1906, which related to a suit for rent instituted by the plaintiff against the defendants for Fasli 1314.

Ratio Decidendi: The rule of res judicata, as limited by the word directly and substantially in issue is not confined to the relief granted by the former suit or to the property which was the subject-matter therein. The decision on a matter not essential for the relief finally granted in the former case, or which did not form one of the grounds for the decision itself, cannot be said to have been directly and substantially in issue; but, where the decision on a question was essential to the relief granted or the decree passed, or where it formed the ground-work of the decision, then the matter must be deemed to have been directly and substantially in issue in the suit. With regard to the relief granted in a suit, the decree may render it necessary to imply a decision on a question not expressly decided, but with regard to issues, no implication is necessary, but we ought to have a clear decision to create a bar. (The application of the latter part of the rule would, of course, be to cases where the subject-matter of the two suits is different.) Explanation IV does not dispense with the necessity of finding upon a matter which might and ought to have been made a ground of defence or attack in the former suit unless that matter must be taken to have been involved in the actual decree passed in the case. It is not enough to make the matter of an issue res judicata that the decision of it in a different manner would be inconsistent with the decree in the previous case as such determination would not affect the actual decree passed in that case for the rent for Fasli 1314.

Final Decision: The extent of the defendants holding under the plaintiff is res judicata by reason of the decision in Original Suit No. 430 of 1906. The decree of this Court in Second Appeal No. 640 of 1909, and the decree of the lower Appellate Court must be reversed and the appeal remanded for fresh disposal according to law. All costs in this Court must abide the result.