Raja Syed Ahmad Ali Khan Alavi v. Hinga Lal — 1946 DIGILAW 188 (ALL)

JUDGMENT Misra and Kidwai, JJ. - Mst. Phulbasa owned a one anna share in mahal Gayadin village Jahangirpur, pergana and tahsil Mohanlalganj district Lucknow. By a sale deed dated the 31st May, 1907, Mst. Phulbasa transferred the share to Ram Cbaran and Gangole exempting 13 plots measuring 10 Bighas 19 Biswas and 101 Biswansis from the sale. The sale deed contained a stipulation the effect of which will be considered later, that the vendees would pay the land revenue of the entire share sold and would not be entitled to charge any rent for the plots exempted from sale, lm 1908 or 1909 Raja Saiyid Shaban Ali Khan obtained the share by pre-emption. He died about 1910 and the Appellant is his son and successor. On the 8th February 1919, Mst. Phulbasa sold the exempted plots to the same two persons Ram Charan and Gangole. During the course of the last settlement operations the plots sold to Ram Charan and Gangole were separately assessed to land revenue amounting to Rs. 24-12 and this land revenue is realized from them year by year. 2. In 1934 Ram Charan and Gangole filed a suit in the Court of the Munsif Havali, Lucknow claiming payment of the land revenue which had been realized from them by the Government in the years 1339 and 1340. On the 7th May 1934, the suit was dismissed by the Munsif, South Lucknow, to whose Court it had been transferred. The Plaintiffs of that suit preferred an appeal and on the 10th September 1934, the appeal was allowed by the Civil Judge, Lucknow, who held that the Defendant was liable for the payment of the land revenue and since the Plaintiffs had been made to pay it, they could claim it from the Defendant the Defendant appealed to this Court. During the pendency of the appeal Ram Charan died and since his heirs were not brought on the record within the time allowed by law, the appeal abated as against them. On the 27th October 1936 Zaeul Hasan, J. held that the abatement did not affect the appeal in so far as it related to the share of Gangole and that on the merits the Defendant was not liable under the terms of the sale deed to pay to the Plaintiffs of that suit any portion of the revenue which they had been called upon to pay. The appeal was accordingly partly allowed. The then Plaintiffs however applied for and obtained leave to appeal u/s 12(2) of the Oudh Courts Act and on the 1st August 1939 a Bench of this Court held that it was not possible to determine the separate shares of the two original vendees and consequently in the circumstances of the case, the whole appeal must fail by reason of the failure of the Defendant to bring the heirs of Ram Charan on the record. This decision is reported as Hinga La1 v. Raja Ahmad Ali Khan 1939 O.A. 623 : O.W.N. 711. 3. During the time that this litigation was going on the Plaintiffs, or their predecessors, were called upon to pay the land revenue year after year and it is not disputed that the Defendant did not pay them any portion of it. In view, however, of the decision of a single Judge of this Court the Plaintiffs predecessors and the Plaintiffs did not bring any suit for recovery of the money paid by them. Thus the claim for years 1341 Fasli to Kharif 1345 Fasli became barred by time. In the meanwhile Gangole also died and the present suit was instituted by the heirs of Ram Charan and Gangole on the 28th May, 1941, in the Court of the Munsif Havali, Lucknow for recovery of Rs. 74-4 being the revenue for the period from Rabi 1345 Fasli to Kharif 1348 Fasli. The Defendant denied his liability to make the payment and relied upon the interpretation placed upon the deed of sale by Zia-ul-Hasan J. He also pleaded that since the final appeal in the Chief Court was dismissed upon a technical ground there was no res judicata. 4. The trial Court held that res judicata operated to prevent the Defendant from contesting his liability but that if the matter had been res integra his decision would be that under the terms of the sale deed the Defendants was not liable to pay the land revenue which the Plaintiffs had been called upon to pay. 5. The Defendant appealed and the District Judge of Lucknow has decided that the Defendant was barred by res judicata from contesting his liability to pay. He did not say anything on the merits. 5. The Defendant appealed and the District Judge of Lucknow has decided that the Defendant was barred by res judicata from contesting his liability to pay. He did not say anything on the merits. The Defendant came up in second appeal to this Court and by his order, dated the 1st February 1945 a single Judge has referred the whole case to a Bench decision. 6. The first question involved in appeal is whether the Defendant-Appellant is precluded by the rule of res judicata from disputing his liability to make payment. It is only if this question is decided in his favor that the second question will arise, namely whether, on an interpretation of the deed of sale, the Defendant is liable to pay the land revenue assessed on the exempted plots. 7. The Learned Counsel for the Appellant divides the question of res judicata into three heads, He argues firstly that the matter in issue in the present case was not heard and finally decided in the previous case, since it is hide appellate decision that is to be considered and the appellate decision was given merely on a technical ground. His second line of attack is that the suit being for a recurring liability in the absence of a final decision on the question of title the previous decision does not operate as res judicata. Thirdly he would have us hold that the previous decision was a decision on a question of law and is accordingly not res judicata. On the merits he simply relies upon the arguments of the trial Court and on the decision of Zia-ul-Hasan J., in the previous case. 8. We have considered the matter fully and have come to the conclusion that the plea of the Defendant that he is not liable to pay the revenue is barred by the rule of res-judicata. Section 11 of the CPC in order to be applicable requires the following elements to be proved: 1. That the matter directly and substantially in issue was also directly and substantially in issue in the previous case. 2 That the previous decision must have been between the same parties or parties under whom they or any of them claim. 3. That the title must be the same. 4. That the Court must be competent to try the subsequent suit and 5. 2 That the previous decision must have been between the same parties or parties under whom they or any of them claim. 3. That the title must be the same. 4. That the Court must be competent to try the subsequent suit and 5. That the previous matter should have been heard and finally decided. 9. It is admitted that all the above elements except the fifth are present in the case before us. As to the fifth element, it is argued that as soon as an appeal is filed the decision of the lower Court ceases to be final and it is only the decision of the appellate Court that stand and since in the present case that decision is based on a more technicality and not on the merits the previous litigation does not operate as res judicata. In support of this argument great reliance was placed by the Appellant's Learned Counsel on the following passage occurring in the judgment of their Lordships of the Judicial Committee in Sheosagar Singh v. Sitaram Singh (1897) 21 I.A. 60 at pp. 58-59: To support a plea of res judicata it is not enough that the patties are the same and that the same matter is in issue. The matter must have been heard and finally decided. If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise to the plea. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of appeal And the only thing finally decided by the Court of appeal was that in a suit constituted as the suit of 1885 was no decision ought to have been pronounced on the merits. 10. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of appeal And the only thing finally decided by the Court of appeal was that in a suit constituted as the suit of 1885 was no decision ought to have been pronounced on the merits. 10. It must however be remembered that the decision in each case is given on the facts of that case and that in the case before their Lordships the previous decision relied upon was the decision of the Subordinate Judge who had given a decision on a question of fact, There had been an appeal from the Subordinate Judge's decision and the High Court in appeal had said that the suit as framed could not be maintained in the absence of certain parties so it ought to have been dismissed and that on the question of fact it was not necessary to come to any decision. Thus the decision of the lower Court was deliberately left open and that is why their Lordships say that the only, thing finally decided by the Court of Appeal was that "no decision ought to have been pronounced on the merits," Obviously a judgment which has been superseded cannot operate as res judicata because it is no longer a subsisting judgment. Moreover in that case it was the suit itself that was dismissed on a technical ground and consequently the other points were strictly speaking not directly and substantially in issue. It was in these circumstances that the decision, of the Subordinate Judge on the merits was not allowed to operate as res judicata. 11. The cases reported in Asghar Ali Khan v. Ganesh Dass (1917) 44 1.A. 213 and Ram Sewak Singh v. Naiched Singh (1882) 4 All 261 (F.B.), are similar cases. 12. In S.P.A. Annamalay Chettyv. B.A. Thornhill AIR 1931 P.C. 263 , their Lordships of the Judicial Committee say at page 264 ; Where an appeal lies the finality of the decree on such appeal being taken is qualified by the appeal and the decree is not final In the sense that it will form res judicata as between the same parties. 13. In Har Sarup v. Amnd Sarup I.L.R l942 All. 642 : 1942 A.W.R. (H.C.) 272, several points were involved but only one that of limitation was decided. 13. In Har Sarup v. Amnd Sarup I.L.R l942 All. 642 : 1942 A.W.R. (H.C.) 272, several points were involved but only one that of limitation was decided. It was accordingly held that there was no res judicata on the other points. 14. Similarly in Parmeshar Din v. Debi Prasad (1818) 5 L.J. 647, the trial Court decided two questions while the appellate Court thought it necessary to decide only one point to dispose of the matter. The decision of the trial Court on the other point was held not to operate as res judicata. 15. In Mst. Chotti Begam v. Ram Prasad AIR 1915 Oudh 148, one relief was not granted in a suit because it was held that there had been misjoinder of reliefs. It was held that a subsequent suit for that relief was not barred by res judicata. 16. The cases of Raghhu Singh v. Deputy Commissioner Sitapur (1930) 7 O.W.N. 209, Mahabal Khan v. Mohammad Ahmad Ali Khan 1938 O.W.N. 126 and AIR 1932 452 (Lahore) , were also referred to by the Learned Counsel for the Appellant but we do not think that any of them has any applicability to the present case. 17. In the present case the appeal has been held to be defective by reason of absence of necessary parties. There was, therefore, no decision of the question by the appellate Court and no modification or qualification of the decree of the first appellate Court which consequently became final as between the parties. As things happened the result was the same as if no appeal had been filed at all. To hold otherwise would practically put an end to the law of res judicata bees use it would enable any person against whom a decision has been given to evade the application of the rule of res judicata by simply filing an appeal and getting it dismissed on some technical ground such as the non-joinder of parties or even on the ground that it is barred by a finding of fact. We are of opinion that the principle for which the Appellant contends under the first head of his argument is not made out. Indeed there is direct authority to the contrary. In Raghunath Das Vs. We are of opinion that the principle for which the Appellant contends under the first head of his argument is not made out. Indeed there is direct authority to the contrary. In Raghunath Das Vs. Ganesh Das and Others it was held, at page 605: It is true when the decision of the trial Court is appealed from all questions decided by it again become sub-juice and its decision cannot operate as res judicata pending the appeal. It is also true that the decision of the appellate Court on such questions supersedes the decision of the First Court so that for the purpose of res judicata the decision of the appellate Court, unless it adopts tint of the First Court is to be considered but where the appeal is not decided on the merits but abates so that the appeal becomes anfractuous and the decision of the trial Court becomes conclusive, the latter will operate as res judicata as regards questions decided by it in a subsequent suit between the same parties assuming of course, that other conditions of the rule exist. 18. The same view was taken in Distrust Board, District Board, Darbhanga and Another Vs. Suraj Narain Sinha, AIR 1936 Patna 198 Coming now to the second head of the argument it will be seen that it presupposes that there has been no "final" decision on the question of title. We have already come to the conclusion that there has been a final decision and the main question involved in the previous decision was the question of title, namely, the right of the Plaintiffs to hold the Appellant responsible for the payment of the land revenue of the plots in their possession. The Appellant's argument on this head also fails. 19. On the third head we should like, first of all, to note that a mere question of law was not decided in the present case: the question was as to the correct interpretation of the words of a deed. No question as to any principle of law or the interpretation or application of any statute is involved. We are of the opinion that, at any rate the decision of such a point does operate as res judicata. This aspect of the matter is discussed in Chitaley's Commentary on the CPC Vol. No question as to any principle of law or the interpretation or application of any statute is involved. We are of the opinion that, at any rate the decision of such a point does operate as res judicata. This aspect of the matter is discussed in Chitaley's Commentary on the CPC Vol. 1, note No. 11 to Section 11 and we find that the Oudh view has always been that a finding even on a question of law operates as res judicata and this is the opinion that we prefer to follow. 20. Thus our conclusion is that the plea that the Defendant is not liable to pay the amount of land revenue paid by the plaint tiffs is barred by res judicata. We would like to add that on the question of merits had we been free to express an opinion we would with due deference to Zia-ul-Hasan, J. not be prepared to uphold of the trial Court. The deed of sale states: Aur malguzari hamesha kul hissa mubaiya zimme mustariyan hai aur arazi mustasna par kisi waqt main lagan tajwiz na hoga. 21. This sentence clearly distinguishes between rent and revenue: the liability fur the payment of the revenue of the whole share (in which the exempted plots were also situated) was undertaken by the vendees and they under-took not recoup themselves by fixing rent. The Plaintiffs are now being made to pay the revenue and they are entitled to claim the said sum from the Appellant. 22. This appeal, therefore, fails and is dismissed with costs.