JUDGMENT
Banerjee and Rampini, JJ.
1. This appeal arises out of a suit brought by the plaintiff-appellant to recover possession of two occupancy holdings on the allegation that they belonged formerly to his father Tahfa Lal; that he is now entitled to the same by inheritance; and that the defendants Nos. 6 to 8 obtained collusive rent decrees in respect of them against the defendant No. 3, who alleges himself to be the purchaser of the holdings from the defendants Nos. 2 and 4, and have dispossessed him by having brought the holdings to sale in execution of the decrees obtained by them and having themselves become the purchasers.
2. The defendants raised several objections in their defence, of which it is necessary for the purposes of this appeal to notice only one, namely, the plea of res judicata, as that is the only ground upon which the lower Court has dismissed the suit of the plaintiff.
3. The plea is based upon a judgment passed in favour of the defendants Nos. 6 to 8 in a former suit for rent brought by them against the defendants Nos. 1, 2 and 4, in which the present plaintiff intervened as a defendant. The question raised in that suit which was brought in the Munsif’s Court (it being for an amount below Rs. 1,000) was to what extent, if any, are the plaintiffs, that is to say, the present defendants Nos. 6 to 8, entitled to recover, and from whom; the allegation of the plaintiffs in that case being that the present defendants Nos. 1, 2 and 4 were the parties who were in occupation of the holdings, and the allegation of the present plaintiff who intervened as a defendant being that he was the party who was entitled to the holdings and was in possession of them, and that the defendants in that suit had no title to or possession of them.
4. The first Court decided that suit in favour of the present plaintiff, but on appeal by the plaintiffs in that suit, the District Judge came to an opposite conclusion, holding that the present plaintiff had no right in or possession of the holdings in question.
5. It appears that subsequent to that decision the defendants Nos. 6 to 8 brought another suit for rent against the defendant No. 1 alone, obtained a decree, and in execution of that decree put up the holding to sale and purchased it themselves. The plaintiff in the present suit, which was instituted before the sale in execution of the last-mentioned rent decree, had originally asked for a declaration of title only, his possession not having been up to that time disturbed. Subsequent to the execution sale and dispossession by the auction-purchasers, he asked for and obtained leave to amend his plaint by inserting a prayer for recovery of possession.
6. These being the facts of the case, the Court below has held that the decision of the District Judge in the former suit operated as res judicata upon the question of title raised in the present case.
7. In appeal it is contended by the learned Vakil for the appellant that this decision is wrong, firstly, because the former suit, in which a decision adverse to the plaintiff was passed, was brought in the Munsif’s Court which was not a Court of jurisdiction competent to try the present suit which is valued at a sum exceeding Rs. 1,000, and to which value no exception is taken by the other side; and, secondly, because the question of title, which is a matter directly and substantially in issue in the present case, was not directly and substantially in issue in the former suit, and, if raised at all, could have been only incidentally raised and decided; and in support of this contention he relies upon the cases of misir Raghobardial v. Sheo Baksh Singh I.L.R. 9 Cal. 439 : L.R. 9 I.A. 197; Bun Bahadur Singh v. Lucho Koer I.L.R. 11 Cal. 301 : L.R. 12 I.A. 23 and on a dictum of Mr. Justice White in the case of Toponidhee Dhirj Gir Gosain v. Sreeputty Sahanee I.L.R. 5 Cal. 832 and on the decision of the Madras High Court in the case of Pathuma v. Salimamma I.L.R. 8 Mad. 83.
8. We think the authorities cited conclude the point in favour of the appellant’s contention.
9. The only ground upon which the learned Vakil for the respondents seeks to support the judgment of the lower Court is that the word “suit” in Section 13 of the Code of Civil Procedure should be construed as including an appeal, and that if any Court of Appeal to which the former suit might have been carried had jurisdiction to try the second suit and the decision of the Appellate Court is relied upon as making the question raised in the second suit res judicata, then notwithstanding that the original Court in which the first suit was brought had no jurisdiction in respect of the subject-matter of the second suit, the plea of res judicata ought to be given effect to.
10. This contention, we think, is clearly opposed to the decision of the Judicial Committee in the case of Bun Bahadur Singh v. Lucho Koer I.L.R. 11 Cal. 301 : L.R. 12 I.A. 23, as in that case the decision in the rent suit which their Lordships held not to operate as res judicata was a decision, as the report shows, not only of the Munsif in the first instance, but also of the Subordinate Judge by whom the Munsif’s decision was upheld, and it is hardly necessary to add that the case of Pathuma v. Salimamma I.L.R. 8 Mad. 83 is also clear authority against the contention raised by the respondents.
11. That being so, it is unnecessary to consider the second contention of the appellant.
12. If it were necessary to arrive at a decision on the second contention on behalf of the appellant, we may add that, as at present advised, we should be inclined to decide it in favour of the appellant; but, as we have just remarked, it is not necessary to say more on the point.
13. That being so, the decision of the Court below must be reversed, and the case remanded to that Court under Section 562, in order that it may be tried on the merits. Costs will abide the result.
