JUDGMENT
1. This is an appeal against the order of the learned Subordinate Judge of South Malabar at Calicut remanding O.S. No. 373 of 1924 to tae District, Munsif of Vayitri for disposal.
2. The 9th respondent in appeal who is the legal representative of the 1st defendant is the appellant. The facts relating to this remand are these: The 1st defendant, the kanomdar of a house site, had demised it to the 3rd defendant; the latter built a house on it and hypothecated it to the 1st defendant. The 1st defendant brought a suit, O.S. No. 464 of 1922 upon the hypothecation bond, obtained a decree and in execution of it purchased the house himself. When he tried to obtain delivery of possession of the house he was obstructed by the plaintiffs in the present suit who stated that the house was built with the tarward fund of the plaintiffs and of the 3rd defendant, and not by the 3rd defendant alone out of his own funds. The 1st defendant then applied for the removal of the obstruction in M.P. No. 905 of 1924 and the obstruction was ordered to be removed. As a consequence of this order the plaintiffs instituted the suit which has now been remanded for a declaration that the house was built with the tarward funds of the plaintiffs and defendants Nos. 2 to 8, that the decree obtained by the 1st defendant in O.S. No. 464 of 1922 is not binding upon them and that the order removing the plaintiffs’ resistance should be set aside.
3. In the meanwhile, the superior jenmi who had demised the land on kanom to the 1st defendant had brought O.S. No. 484 of 1925 on the file of the Principal District Munsif’s Court of Calicut for redeeming the land, making the present plaintiffs and the present 1st and 3rd defendants parties to the suit and obtained a decree for redemption. The present 3rd defendant was the 1st defendant in that suit; the present 3rd defendant was the 31st defendant and the present plaintiffs were defendants Nos. 32, 34 and 35. It was held in that suit that the present 1st defendant was entitled to get the value of the house before redemption. It is now contended by the 1st defendant and by his legal representative that the plaintiffs’ claim to the suit house is res judicata by reason of the decision in O.S. No. 484 of 1923. The District Munsif agreed with this contention and dismissed the plaintiffs’ suit. The learned Subordinate Judge disagreed with the view of the District Munsif and remitted the suit for disposal on the merits.
4. The only question for consideration in this appeal is whether this plea of res judicata, can be maintained. It is not disputed that the plaintiffs and the 1st and 3rd defendants were ranged as co-defendants in O.S. No. 484 of 1923. It is well-settled that for the decision in a suit to operate as res judicata between co-defendants therein it is necessary (1) that there should be active controversy between the co-defendants and (2) that an adjudication inter se between the co-defendants should be necessary to give the appropriate relief to the plaintiff. See Sankaramahalingam Chetty v. Muthulakshmi 43 Ind. Cas. 860 : 33 M.L.J 740. It is argued by the learned Advocate for the appellant that in O.S. No. 484 of 1923 there was active controversy between the plaintiffs and the defendants who were co-defendants as to who was entitled to the value of the improvements i.e., of the house which necessarily involved a consideration of the question as to whether the house was built by the 3rd defendant with his own funds or by the plaintiffs and defendants 2 to 8 with the funds of the tarwad and that this decision as to who was entitled to the value of improvements was necessary in order to give relief to the plaintiff in that suit. He also argues that, even if this decision was not necessary to give a proper decree to the plaintiff, inasmuch as the decision against the present plaintiffs is incorporated in the decree it was their duty if they wanted to dispute it, to prefer an appeal against that decree and since they did not do so, they are now barred by the plea of res judicata from raising the same contention again in the present suit. The answer of the respondent is that the validity of the decree in O.S. No. 464 1922 of was not considered in O.S. No. 484 of 1923 and so, there was no active controversy regarding it between the co-defendants in that suit, that the value of the house was awarded to the 1st defendant not on the ground that he was a “tenant” under the Malabar Tenants Improvements Act but only on the ground that he was the auction-purchaser and so the adjudication on his claim for the value of the house was not necessary to give relief to the plaintiff in that suit. Lastly that, even if the adverse decision as regards the value of the improvements is incorporated in the decree, it was not in law necessary for the plaintiffs to appeal against it as that decision related to a controversy between co-defendants and not to one between the plaintiff and the defendants.
5. The first defendant’s written statement in O.S. No. 484 of 1923 is not before us, but Ex. III a copy of the present plaintiffs’ written statement has been filed In that statement they have set forth the present contentions and claimed the value of the house as being the persons entitled to the value of the improvements. On this contention issue No. 4 was framed by the Court. This issue is as follows: “What is the value of improvements and to whom is it due?” It is clear that the issue did raise the question as to whom the value of the improvements should be given whether to the present 1st defendant or to the plaintiffs. It is true that we do not see in the judgment any discussion as regards the validity of the decree in O.S No. 464 of 1922. If the plaintiffs were entitled to the value of the house it could only be on the ground that the decree, in O.S. No. 464 of 1922 was not binding on them and that the house was built with the funds of the tarwad. It would have been more satisfactory if the Court had raised specific issue, viz. “Is the decision in O.S. No. 464 of 1922 binding upon the present plaintiffs who were defendants Nos. 32, 34 and 35 in that suit and considered that question separately in the judgment. But the omission to do so cannot, in our opinion, help the respondents for it cannot be denied that the question is impliedly raised and included in the latter part of issue No. 4–“to whom is it (the value of improvements) due Explanation IV to Section 11. Civil Procedure Code, says: “Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” The present plaintiffs could have satisfied the Court that the decision in O.S. No. 464 of 1922 was not binding on them; and if they had done so they would have been given the value of the improvements in O.S. No. 484 of 1923. Since they failed to do so they must now be held to be precluded from raising the same question again provided of course, that the decision on the question of the value of improvements was necessary for giving relief to the plaintiffs in that suit. On this point the appellant is supported by the recent decision of Jackson, J. in Etathil Chand Kutti v. Viayathen Mahadevi 110 Ind. Cas. 738 : A.I.R. 1928 Mad. 534 : 55 M.L.J. 450 : 28 L.W. 704. In that case it was held that in a suit for redemption brought by a jenmi, if there is a contest as to which of the defendants is entitled to get the value of improvements it is the duty of the Court to decide the contest and declare as to who should be given the value of improvements instead of leaving that question to be fought out in a separate suit between the defendants. Applying this decision it is clear that in O.S. No. 484 of 1923 it was necessary for the Court before giving relief to the superior jenmi to decide the question as to who was entitled to the value of the improvements the 1st defendant or the plaintiffs. The correctness of the decision in Etathil Chand Kutti v. Viayathen Mahadevi 110 Ind. Cas. 738 : A.I.R. 1928 Mad. 534 : 55 M.L.J. 450 : 28 L.W. 704 is not challenged by the learned Advocate for the respondents but he says that that decision does not apply to this case inasmuch as the 1st defendant cannot be considered to be a “tenant” within the meaning of the term as used in the Malabar Tenants Improvements Act but there can be no doubt that in that case he was treated as a “tenant in possession” and the value of improvements was given to him on that ground. As a matter of fact it is admitted that at the time the decree was passed he was in actual possession of the house. It is, therefore, clear that the decision in O.S. No. 484 of 1924 is a bar to the plaintiffs’ claim in the present suit.
6. As we agree with this part of the appellant’s argument it is not necessary to consider the last argument advanced by his learned Counsel, viz., that even if the decision as to whom the value of improvements should be given is not a necessary part of the decree in O.S. No. 484 of 1923 inasmuch as that decision is against the present plaintiffs and is incorporated in the decree they should have appealed against it, and since they did not do so the present claim is barred by res judicata.
7. In the result the order of the lower Court is set aside and the decree of the District Munsif is restored with costs here and in the Court below.
