JUDGMENT
Cuming, J.
1. In the suit out of which this appeal has arisen the plaintiff sought to evict the defendants from some 8 bighas odd of land on the ground that this land appertained to his Taluk No. 148 of the 24-Parganas Collectorate and that the defendants were trespassers. The case of the defendants was that the land did not appertain to Taluk No. 148 but was his lakhiraj land bearing No. 127 and that the suit was barred by limitation.
2. The first Court decided against the plaintiff and dismissed the suit. The second Court allowed the plaintiff’s suit with costs setting aside the judgment and decree of. the first Court. Defendant No. 1 has appealed to this Court.
3. In appeal the learned Vakil who has appeared for ,the appellant contends that the plaintiff is barred by the principle of res judicata from proving a certain kabuliyat in which there -was an admission by defendant No. 1 that this land did appertain to Taluk No. 148. His case is that whether the defendant No. 1 did or did not execute this kabuliyat was a material fact in issue in a previous suit, namely, Rent Suit No. 117 of 1815 of the Court of the Special Munsif at Alipur and it was not open to the plaintiff in the present suit to prove this kabuliyat as having been executed by the defendant and hence that the defendant had made the admission alleged.
4. The question of res judicata arises in this way. The plaintiff wished to prove an admission by the defendant that the land in suit appertained to Taluk No. 148. This admission was contained in a certain kabuliyat alleged to have been executed in favour of the plaintiff by defendant No. 1. Now to prove the admission the plaintiff must prove that the defendant executed the kabuliyat for unless he did so the statement made in it cannot be an admission by the defendant No. 1. Therefore, one of the material facts in issue in the present case is whether the defendant did execute the kabuliyat. There was a former suit between the parties which is Rent Suit No. 117 of 1915 in the Court of the Special Munsif at Alipur. In that suit the plaintiff sued the defendant for the rent of this very land and to establish the fact that the relationship of landlord and tenant existed between him and the defendant which the defendant denied, he endeavoured to prove this kabuliyat. Therefore, one of the material facts in issue in that suit was: Did the defendant execute the kabuliyat? The Court found that the plaintiff in that suit had’ failed to prove that the defendant executed the kabuliyat. It is the same fact which the plaintiff now wishes to prove in the present case for unless he proves that defendant No. 1 executed this kabuliyat he obviously cannot prove the admission of the defendant on which he relies to prove, that the land in suit appertained to Taluk No. 148. Obviously, therefore, this question has once been agitated and decided between the parties and it cannot again be re-agitated. It is, therefore, not open to the plaintiff to prove this admission.
5. The case must, therefore, go back to the lower Appellate Court who will consider the evidence and decide the appeal after excluding this alleged admission of defendant No. 1. Costs of this appeal will abide the final result.
Page, J.
6. I agree. The first question to be determined is whether it was essential that the plaintiff should have proved the execution of the kabuliyat by defendant No. 1 in order to prove his cause of action in the previous suit for rent. Admittedly it was; and the Court in the rant suit came to the conclusion that it was not proved that the defendant had executed the document. Now, although the cause of action in the present suit is not the same as the: cause of action in the rent suit it was an essential part of the cause of action in this suit that the plaintiff should prove that the land in suit appertained to his Taluk No. 148. The plaintiff sought to prove this part of his cause of action by means, of an alleged admission in the kabuliyat to which I have referred. That involved a finding of fact as to whether the kabuliyat which contained the admission was executed by the defendant; and having regard to the way in which the case was framed and developed in the proceedings in the lower Courts it cannot be pretended that this issue of fact was not that upon which the parties intended that the main issue in the suit should be determined. Inasmuch, however, as that issue had been decided in the previous suit and was directly and substantially in issue in that suit, in my opinion, the plaintiff was not entitled in the present suit to adduce evidence for the purpose of proving that in fact defendant No. 1 had executed the kabuliyat.
7. I agree that the case must be remanded.
