JUDGMENT
R.C. Patnaik, J.
1. This is a second appeal by defendant No. I against the decision of the Additional Subordinate Judge, Cuttack in Title Appeal No. 30/5 of 1975/79 reversing the decision dated 16-1-75/24-1-75 of the Additional Munsif, Cuttack in Title Suit No. 97 of 1971 and decreeing the suit declaring the defendant No. 1 as a licensee and directing recovery of possession and permanent injunction restraining the said defendant from interfering with the right, title and possession of the plaintiff in regard to the suit property.
2. Pursuant to a gift made by her father under registered deed of gift dated 13-5-1939,
the plaintiff alleged to have acquired title to the property and remained in enjoyment thereof. She constructed two houses on the land which was lying fallow, occupied one and allowed the defendant No. 1 to occupy the other on payment of Rs. 10/- per month as rent or licence fee for use and occupation of the said house. She got her name mutated and obtained a lease from the Khasmahal. Though initially the property in dispute was mutated in the name of defendant No. 1, ultimately mutation was made in the name of the plaintiff. With a view to evict the said defendant from the property, she instituted a proceeding under the House .Rent Control Act (H.R.C. Case No. 63/64, Ext. 10) and got an order of eviction but in appeal (H.R.C. Appeal No. 18/70, Ext. N) she lost on a finding that defendant No. I was not a tenant. Thereafter the plaintiff asked defendant No. I to vacate the house and when he turned a deaf ear, she instituted the suit, for the-reliefs stated above.
3. Defendant No. 1 alleged that one Choudhury Chakradhar Mohapatra who was the exclusive trustee of Sri (sic) Mahadev to whom the property belonged, in the year 1934 inducted him as a tenant in respect of the vacant land on receiving salami of Rs. 100/-and at an annual rental of Rs. 1.26. He made construction of the houses, got himself assessed by the Municipality and was in possession as a permanent tenant. He took an alternative plea that if the lease was a void one, he acquired title by his adverse, open, peaceful and continuous possession for more than the statutory period. Gift in favour of the plaintiff was denied and it was further pleaded that the plaintiff had filed Title Suit No. 126 of 1966 alleging the defendant No. I to be a monthly tenant but allowed the suit to be dismissed. He specifically pleaded estoppel against the plaintiff having regard to his stand in the previous litigation before the House Rent Controller as well as in the earlier suit and incompetency of the suit by reason of res judicata.
4. On the materials placed by the parties, the trial Court dismissed the suit holding that defendant No. 1 was a permanent tenant and
acquired title by adverse possession and he was not a licensee and further holding that the plaintiff had not acquired any right, title and interest over the property by virtue of the deed of gift.
Each of the findings of the trial Court was reversed by the appellate Court, the specific findings being that defendant No. 1 had failed to establish that he had constructed the house and hence he was a licensee and was evictable.
5. Two questions have been urged by Mr. S.S. Das, the learned Counsel for the appellant:
(a) if the decision of the appellate authority under the House Rent Control Act, a Court of competent jurisdiction but competent to decide issues, in H.R.C. Appeal No. 18/70, would operate as res judicata in the suit? And
(b) is” defendant No. I a lessee or a licensee?
6. Mr. R.K. Mohapatra, the learned Counsel for the respondents, has contended that the appellate authority under the House Rent Control Act dismissed the application of the plaintiff holding that there was no relationship of landlord and tenant between the plaintiff and defendant No. 1. The finding on the issue as to the relationship of landlord and tenant would operte as res judicata but not the reasons supporting the finding and (b) it was the stand of the defendant No. 1 and the observation of the appellate authority which forced the plaintiff to institute the present suit. Hence, defendant No. 1 was estopped from alleging that he was not a licensee.
7. To appreciate the question as to whether the decision of the appellate authority under the House Rent Control Act (Ext. N) operates as res judicata, it is necessary to bear in mind the principles embodied in Section 11 of the Code of Civil Procedure. In order that Section 11 would be attracted, the Court in which the subsequent suit is filed, should not try an issue which had been directly, and substantially in issue in a former suit between the same parties and has been heard and finally decided by that Court. Hence 5 questions arise for consideration :
(a) what is an issue;
(b) if the issue directly and substantially in issue in the suit was also directly and substantially in issue in the H.R.C. proceeding;
(c) if the principles of res judicata contained in Section 11 is applicable to a final decision of an authority, original and/or appellate under the House Rent Control Act;
(d) if the reasonings of the decision would operate as res judicata; and
(e) if defendant No. 1 is a licensee or tenant. Order 14, so far as relevant, reads as under:
“Framing of issues.– (1), Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute
his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds :
(a) issue of fact (b) issue of law XX XX XX" 9. I have, therefore, to consider what were the issues, either of law or of fact, in the House Rent Control proceeding. Pleadings are
essential to assess what were the matters in issue in the earlier suit or proceeding. From the recitals in the judgment also the pleadings of the parties can be gathered.
10. It is also not necessary that to be a matter in issue, a distinct issue should have actually been struck. Even without an issue having been framed, if the parties have joined issue and the Court has given a decision, such decision would operate as res judicata. In Rohini Nandan v. Jadunandan, AIR 1926 Cal 1022, it has been held (at page 1028):
“. . . even if a particular matter be not included in a formal issue, if it is directly and
substantially in issue between the parties, and if there be a decision thereon, it will operate as res judicata…”
It has been held in Obla Suboier v. Rama-swamy Konar, AIR 1927 Mad 643, as follows (at page 644):
“… if an issue has been directly raised and decided, and is not manifestly incidental or irrelevant, the Court which is considering whether that decision amounts to res judicata should not import nice questions as to whether the issue had been absolutely necessary to the determination of the suit; it is sufficient to find that the Court and parties thought so, and proceeded on that assumption…”
Jackson, J. while making the aforesaid observation considered the meaning of ‘Substantial’ in ‘the expression ‘substantially in issue’ and observed that it meant ‘of real importance or value’ and further observed that to say that substantial meant necessary put in rather too high, and referred to the decision of the Privy Council in Midnapur Zamindari Company Ltd. v. Naresh Narayan Roy, AIR 1922 PC 241, where the following observation of the Calcutta High Court was approved:
“It is contended that the issue was not necessary, or a proper one to be tried in that suit, and that it is open to us to say so. But we must see first whether this Court adjudged otherwise,, that is, whether this Court having the question before its mind decided that the issue did arise. If so, the decision would be as much res judicata as the final determination of the issue on the merits. If we are of the opinion that the Court did so decide, we are not concerned to see whether it did so rightly or not, and indeed cannot do so. Now this is not a case, as it infrequently happens, where incidentally some point is decided which is not necessary, which was not of first-rate importance or specially brought to the notice of the Court.”
In Krishna Chand Gajapati Narayana Deo v. Challa Ramanna, AIR 1932 PC 50, it has been held (at page 51):
“Where a point is not properly raised by the plaint, but both parties have without protest chosen to join issue upon that point, the decision on the point would operate as res judicata between the parties.”
11. It has been contended by the counsel for the appellant that the nature of possession of defendant No. 1 is vital for the decision of this case. If he was a tenant, the suit is not maintainable. If he had constructed the house, the plaintiff is liable to be non-suited, it being his case the party allowed defendant No. 1 to occupy the house as a licensee. Hence no matter in issue which was of fact before the Civil Court and before the House Rent Controller was if defendant No. 1 had constructed the house in question. The plaintiff had affirmed that she had constructed the house whereas defendant No. 1 had denied it. Therefore, the issue of fact before the Civil Court as well as before the House Rent Controller was if the plaintiff or defendant No. 1 had constructed the house. Mr. R.K. Mohapatra, learned Counsel for the respondents, has, however, submitted that the matter in issue before the House Rent Controller was if there was relationship of landlord and tenant between the plaintiff and defendant No. 1. Any finding on the said question would operate as res judicata but not the reasonings in support thereof and he has relied upon Mysore State Electricity Board v. Bangalore Woollen, Cotton and Silk Mills Ltd., AIR 1963 SC 1123, where it has been said:
“… It is indeed true that what becomes res judicata is the ‘matter’ which is actually decided and not the reason which leads the Court to decide the ‘matter’….”
In the Province of Bombay v. The Municipal Corporation of Ahmedabad, AIR 1954 Bom I, Chagla, C. J. speaking for the Full Bench, has obsered at page 28 :
“… what becomes’res judicata’is the matter which is decided and not the reason which leads the Court to decide the matter. Neither the reasoning nor the mental process can operate as ‘res judicata’. What could not be challenged and what had become conclusive
was the actual decision given in the former
suit.”
12. It is now, therefore, to be seen what were the matters in issue in the proceeding under the House Rent Control Act. The plaintiff sought eviction of defendant No. I alleging that defendant No. 1 being a wilful defaulter was liable to be evicted. She had alleged that she had constructed the house and she had let that out to defendant No. 1 on a monthly rental of Rs. 10/-. He wilfully defaulted in paying rent for three years prior to the institution of the proceeding. Eviction was sought also on that ground. The plea of defendant No. 1 was that he took lease of the vacant land from Chaoudhury Chakradhar Mohapatra in the year 1934 on payment of salami and had himself constructed the house and was in occupation in his own right and was paying municipal tax. On the pleadings, two issues were framed : (1) whether there was relationship of landlord and tenant and (2) whether the opposite party-defendant No. 1 was a permanent lessee under Chou-dhury Chakradhar Mohapatra in respect of the disputed land and occupied the disputed house in his own right. The first issue was answered in favour of the plaintiff and the second issue was decided against defendant No. 1. In appeal, two issues were taken up specifically by the appellate Court, vide para 2 of his judgment, namely, (l) who constructed the disputed house and (2) whether appellant was inducted as a tenant in respect of the suit house by the respondent. In paragraph-4, on an assessment of the evidence, it answered as follows :
“Under the circumstances any reasonable man would be prone to believe that the suit house was constructed by the opposite party and he is not a monthly tenant in respect of the suit house under the petitioner”,
and the second question was answered as under:
“… Therefore, I hold that the opposite party-appellant was not inducted as a tenant in, respect of the disputed house by her or by anybody on her behalf.”
The Appellate Court’s incidental observation
that the opposite party (appellant herein) could be a trespasser or a permissive occupier but could not be a tenant was a mere unnecessary observation not necessary for decision of the case because it had already answered the second issue which it posed to itself for answer,
13. Now let me consider what were the issues in the suit. Apart from the issues of res judicata, the two relevant issues are:
Issue No. 8. Did the plaintiff let out the defendant in the scheduled land as a licensee?
Issue No. 9. Has the defendant No, 1 acquired any right of permanent tenancy or as such acquired title by adverse possession?
In the concluding line of paragraph-10, the trial Court has observed :
“… I have come to hold that the plaintiff did not put defendant No. 1 in the suit house as a licensee and the latter remained there by constructing the house and as such Rama Sahoo ramained in the house continuously for more than 12 years peacefully to the knowledge of the plaintiff…”
and while discussing Issue No. 5, whether there was acquiescence on the part of the plaintiff, has further held:
“… In this suit I have already arrived at the finding that the defendant No. I has constructed the house in question. There is nothing on record to show if the plaintiff had objected to such construction till it was completed. Hence the plaintiff would be deemed to have acquiesced in such construction and has been done by her previous licence. The suit is barred by the principles of acquiescence…”
The appellate Court reversed the finding holding that there was no satisfactory evidence to support defendant No. 1 as to his construction of the suit house, vide para-graph-5.
14. The issues raised in the suit are not pure questions of law. Some are of fact, one is a mixed question of law and fact. The issue whether defendant No. I was a licensee was a
mixed question of law and fact. On the answer to the issue of fact as to whether the plaintiff had constructed the house or defendant No. 1 would depend whether defendant No. 1 was licensee. The plaintiffs positive case was that she constructed the house and permitted defendant No. 1 to occupy the same as a licensee. That was a matter in issue. There was affirmance on one side and denial by the other and on that issue depended the answer to the issue of law as to whether defendant No. 1 was a licensee or not and on the answer to the first part hinged the decision of the case. That was the most important and vital question directly involved for adjudication. That was also a matter in issue directly and substantially involved in the proceeding under the House Rent Control Act. I do not agree with Mr. Mohapatra, the learned Counsel for the respondent, that the finding rendered on the issue as to “whether the plaintiff or defendant No. 1 constructed the house, was the reasoning for the decision of the other issue, namely, whether there was relationship of landlord and tenant between the plaintiff and defendant No. 1. The answer to the second would depend on the answer to the first. Both were in issue — one was an issue of fact and the other one was mixed issue of fact and law. Hence the finding rendered finally that the defendant No. 1 had constructed the house in the proceeding under the House Rent Control Act would operate as res judicata and that issue of fact was not available to be reagitated in the suit.
15. Section 11 of the Code of Civil Procedure is applicable to final decision of the authorities under the House Rent Control Act, after insertion of Explanation VIII to Section 11, which reads as under:
“Explanation VIII– An issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”
There can be no more any doubt that an issue heard and finally decided by an authority
under the House Rent Control Act, which is court of limited jurisdiction and competent to decide an issue, would also operate as res judicata in a subsequent suit. The issue that was decided, namely, if the plaintiff or defendant No. I had constructed the house within the competence of the House Rent Controller as well as of the appellate authority. The answer to the said issue would operate as res judicata and such an issue cannot be reagitated beforee the Civil Court. I close this part with the following observation from Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeojeebhoy, AIR 1971 SC 2355:
“A decision of a competent Court on a
matter in issue may be res judicata in another
proceeding between the same parties; ‘the
matter in issue’ may be an issue of fact, an
issue of law, or one of mixed law and fact. An
issue of fact or an issue of mixed law and fact
decided by a competent Court is finally
determined between the parties and cannot be
reopened between them in another proceed
ing. The previous decision on a matter in issue
alone is res judicata, the reasons for the
decision are not res judicata. A matter in issue
between the parties is the right claimed by one
party and denied by the other, and the claim
of right from its very nature depends upon
proof of facts and application of the relevant
law thereto. A pure question of law unrelated
to facts which give rise to a right, cannot be
deemed to be a matter in issue. When it is said
that a previous decision is res judicata, it is
meant that the right claimed has been adjudi
cated upon and cannot again be placed in
contest between the same parties. A previous
decision of a competent Court on facts” which
are the foundation of the right and the
relevant law applicable to the determination
of the transaction which is the sdurce of the
right is res judicata. A previous decision on a
matter in issue is a composite decision; the
decision of law cannot be dissociated from the
decision on facts on which the right is
founded…”
16. The decision on the matter in issue as to whether the plaintiff or defendant No, I constructed the house was the foundation for
the answer to the issue as to whether there was relationship of landlord and tenant between the plaintiff and defendant No. I. Hence, I negative the contention of the learned counsel for the respondent that the finding on the question of fact was the reasoning for the issue and uphold the contention of the counsel for the appellant.
17. The last contention, namely, whether defendant No. 1 was a tenant or a licencee is rendered insignificant in view of the aforesaid conclusion of mine. But I am of the view that the plaintiff cannot be allowed to blow hot and cold. In the House Rent Control proceeding she alleged that the defendant No. 1 was a tenant on a monthly rental of Rs. 10/-. After dismissal of her case by the appellate Court, she instituted Title Suit No. 126 of 1966 in the Court of the First Munsif, Cuttack. There too she alleged that defendant No. 1 was a tenant under her and he defaulted in payment of rent. Even in her pleadings in this suit, she is not clear as to whether defendant No. I was a tenant or a licencee. In para 3 of the plaint, she has stated that defendant No. 1 resided in the house with her consent and permission and promised to pay rent at the rate of Rs. 10/-. Having throughout pleaded that the relationship between her and defendant No. 1 was that of landlord and tenant, she cannot be allowed to resile from her position and plead licence unless of-course the defendant No. 1 had so pleaded and non-suited her on that ground so that the principle of estoppel would operate against him. On the contrary defendant No. 1 has pleaded title in himself. He did neither admit tenancy nor did he admit his occupation as a licencee. Merely because the appellate Court made an observation incidentally that defendant No. 1 could be a trespasser or a licencee, that could not furnish the plaintiff a ground to plead that defendant No. 1 was a licencee and I need not further advert to this aspect having regard to my conclusion that the decision of the appellate Court under the House Rent Control Act (Ext. N) operated as res judicata and the issue that defendant No. 1 was a licence and the present suit for his eviction on the ground that he had been inducted as a licencee of the house constructed by the plaintiff cannot be
reagitated, the foundation not being available to be decided in the suit.
18. In the result, I allow the appeal, reverse the decision of the lower’ appellate Court, restore that of the trial Court and dismiss the suit. In the facts and circumstances, there would be no order as to costs throughout.