JUDGMENT
Madhavan Nair, J.
1. Plaintiff is the appellant. His suit is for the recovery of possession of the suit lands from the defendants. The main plea of the defendants is that the plaintiff’s suit is barred by res judicata by reason of the decision in O.S. No. 305 of 1917 (Exhibit I).
2. The facts of the prior suit were as follows : The father of the present first defendant Appayya instituted O.S. No. 306 of 1917 against the present defendants Nos. 2 and 3, who were defendants Nos. 1 and 2 in that suit; and, on his death, Appayya, as his legal representative, continued the suit. The case for the plaintiff in that suit was that he was a tenant under Suryanarayana Deo, the plaintiff in the present suit, in respect of the plaint mentioned lands, that the 1st defendant therein collected rent from him on the ground that he was the authorised agent of Suryanarayana Deo; that later Suryanarayana Deo demanded and recovered the rent from him : and that, therefore, he instituted the suit for the recovery of the rent thus wrongfully collected from him the defendant in that suit admitting the collection of the rent, pleaded that the collection by the 1st defendant was not as the agent of Suryanarayana Deo, but as the agent of the 2nd defendant therein who claimed to be the owner of the property. Suryanarayana Deo, the present plaintiff, was added as a supplemental defendant so that the question of title between him and the 2nd defendant therein might be finally determined. Two issues were raised in that case : (1) “Whether the 1st defendant unauthorisedly collected the plaint amount represent in himself to be the agent of the 3rd defendant” and (2) ” Is the 2nd defendant owner of the suit land? ” The first issue was found against the plaintiff, and on the second issue as regards the title the District Munsif gave a finding against the 3rd defendant, i.e., the present plaintiff. The result was that O.S. No. 306 of 1917 was dismissed with costs of defendants Nos. 1 and 2 and the 3rd defendant was directed to bear his own costs. There was no appeal from this decree either by the plaintiff or by the 3rd defendant.
3. The defendants state that the present suit is barred by res judicata by reason of the finding as regards title recorded in O.S. No. 306 of 1917 against the present plaintiff who, as I have said, was the 3rd defendant in that suit. Both the lower Courts have upheld the defendants’ plea.
4. In considering the question whether the decision in the prior suit is res judicata id the present suit, we have to notice that the finding given against the present plaintiff on the question of title was not necessary for the disposal of that suit, that it was not embodied in the decree and that no decree was passed against the present plaintiff. In Exhibit I the judgment in that case, the District Munsif, in considering the issue as regards title, says : “I am of opinion that this issue is really unnecessary to be decided in this case.” It has also to be noticed that the decision of the question of title as between co-defendants Nos. 2 and 3 in O.S. No. 306 of 1917 was not necessary to give appropriate relief to the plaintiff in that suit. In these circumstances, it seems to me that the question of title cannot be said to have been heard and finally decided in the prior decision. I must, therefore, hold that the plea of res judicata cannot be Sustained. In this connection, two decisions of this Court have been brought to my notice. The decision in Kelu Nambiar v. Chatha Nambiar (1919) 25 M.L.T. 66 relied on by the learned Vakil for the plaintiff is in favour of the view which have indicated above, while the decision in Ramakrishna Naidu v. Krishnaswami Naidu (1919) 36 M.L.J. 641, seems to be against it. Shortly stated, in the latter decision it was held that when a Court comes to a definite conclusion on the issue and gives a finding on that issue, that issue would be res judicata even if the decree in the case is not based n the decision on that issue, provided that such decision is not inconsistent with the decree or with any other decision which is the basis of the decree. The decision in Ramaswami Reddi v. Marudai Reddi A.I.R. 1924 Mad. 469, based upon the decision of the Privy Council in Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy A.I.R. 1922 P.C. 241, seems to be against the view put forward in Ramakrishna Naidu v. Krishnaswami Naidu (1919) 36 M.L.J. 641. The facts of the case in Ramaswami Reddi v. Marudai Reddy A.I.R. 1924 Mad. 469, were as follows : In a prior suit instituted by the plaintiff to eject the defendants, from a certain land, the defendants had pleaded that they had a right of permanent occupancy and that, therefore, they were not liable to be ejected, in the alternative that in the event of their not establishing the right of permanent occupancy, they were at least yearly tenants and that the tenancy had not been determined by a valid notice to quit The District Munsif held that the defendants had failed to establish a right to permanent occupancy but dismissed the suit holding that the defendants had a right of yearly tenancy in the plaint property and that no proper notice to quit was given by the plaintiff. On appeal by the plaintiff, the District Judge without going into the question of the permanent occupancy, upheld the dismissal of the plaintiff’s suit on the ground that no proper notice was given by the plaintiff to the defendants. In a subsequent suit brought by the plaintiff after giving due notice for ejectment, it was held by Krishnan and Waller, JJ., that the decision in the prior suit as regards the right of permanent occupancy set up by the defendants was not res judicata and that it was open to the defendants to raise the same plea in the subsequent suit. In the course of their judgment referring to the case in Ramakrishna Naidu v. Krishnaswami Naidu (1919) 36 M.L.J. 641 and other cases quoted to them, the learned Judges say : “We need not, however, consider these cases, for we think that the matter has been settled by the Privy Council in Midnapur Zemindari Co. Ltd. v. Naresh Narayan Roy A.I.R. 1922 P.C. 241.” In the case before the Privy Council the defendant pleaded a right of permanent occupancy and also that the suit brought against him was premature. The trial Court found that he had no right of occupancy but dismissed the suit on the ground that it was premature. The plaintiff filed an appeal against the dismissal and the defendant filed a cross appeal challenging the finding on the question of permanent occupancy right. The High Court dismissed the plaintiffs appeal holding that the suit was premature and expressed the opinion on the defendant’s cross appeal that the right of permanent occupancy set up by him was not proved. In spite of the defendant’s cross-appeal, in a subsequent suit where the question of the right of occupancy was pleaded as res judicata between the same parties, their Lordships of the Privy Council say : “Their Lordships do not consider that this will found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them.”
5. In my opinion, the principle of the Privy Council decision applies to the facts of this case and the plaintiff is not precluded from agitating the question of title in the present suit. As I have already pointed out, it was not necessary to decide the question of title in the prior suit land it was also not necessary to adjudicate on the question as regards title as between defendants Nos. 2 and 3 in order to give appropriate relief to the plaintiff in that suit. The decision in Veeraswami Mudali v. Palaniappan A.I.R. 1924 Mad. 626, seems to me to be distinguishable on the ground that in that case in the prior suit there was an order as to costs passed against the defendant. In the concluding portion of his judgment Odgers, J., observes as follows. : “This order as to costs against the defendants appears to me to effect a radical distinction between this case and those cited: above for the respondents, and the costs were awarded on the ground that the question of title had been found in plaintiff’s favour. 1, therefore, agree that the matter is covered by Section 11, C.P.C.”
6. As I am of opinion that the plaintiff’s suit is not barred by res judicata, I set aside the decrees of the lower Courts and remand the case to the First Court for disposal according to law.
In S.A. No. 235 of 1922.
7. This second appeal is connected with the previous one and raises the same question on which I have just now given my decision. The decrees here also must be set aside and the District Munsif will take the case on file and dispose of it according to law.
8. In both these second appeals the appellant will have his costs in this Court. The costs in the lower Courts will abide the result. The appellant will also be entitled to get a refund of the Court-fee in both the second appeals.