JUDGMENT
Francis William Maclean, C.J. and Banerjee, J.
1. This appeal arises out of a suit brought by the plaintiffs, appellants, for a declaration of their right by purchase to a 1 anna 15 gandas 2 karas 2 krantis share in certain land, for a further declaration that the right of the defendant No. 1 by purchase extends only to a 6 annas odd gandas share of the said land, and that the defendant No. 1 is therefore entitled to recover from the plaintiffs as rent for the said land only Rs. 5 odd annas annually, and for refund of a certain sum of money which the defendant No. 1 is said to have unjustly recovered by suit from the plaintiffs. The allegations upon which the plaintiffs base their right to the reliefs claimed are shortly these: That the husband of plaintiff No. 1, while living jointly with plaintiffs Nos. 2 and 3, obtained mourasi mokurari pattas, or permanent leases at fixed rent, of the land in dispute, which is revenue-free land, from the former proprietors thereof, namely, defendants 2—25; that subsequently some of those proprietors sold their 8 gandas odd karas share in the said land to the husband of plaintiff No. 1 and to the plaintiffs Nos. 2 and 3; that on the 26th Jaistha 1288 (corresponding to same day in June 1881) one of the former proprietors, namely, defendant No. 21, mortgaged his 1 anna 6 gandas 2 karas 2 krantis share to the husband of plaintiff No. 1, and that share was purchased by the plaintiffs on the 6th August 1888 in the name of the mortgagee at a sale in execution of the decree obtained on the mortgage; that the defendant No. 1, in execution of a certificate against some of the other defendants, purchased their shares in the said land on the 12th October 1882; that thereafter defendant No. 1 sued the plaintiffs for the entire rent of the mourasi mokurari tenure, and notwithstanding the objection of the plaintiffs that defendant No. 1 was not entitled to the entire 16 annas of the rent, the suit for rent was decreed in full and the entire rent has been recovered from the plaintiffs; and that though the plaintiffs’ purchase of the 1 anna 6 gandas 2 karas 2 krantis was subsequent to the purchase by defendant No. 1, their purchase should prevail, as being in satisfaction of their prior mortgage.
2. The defence of defendant No. 1 was that the matter in dispute was res judicata by reason of the decision in the previous rent suit, and that the plaintiffs were not entitled to the share claimed by them.
3. The first Court over-ruled the plea of res judicata, and on the merits held that, though the purchase set up by the plaintiffs of the 8 gandas odd share was not made but, they were entitled to a declaration of their right to a 1 anna 6 gandas 2 krantis 6 dantis share as purchasers under their mortgage decree, and a further declaration that the defendant No. 1 was entitled only to Rs. 6 odd annas annually as rent, and to refund of a certain sum.
4. Against the decree of the first Court, defendant No. 1 preferred an appeal, and the lower Appellate Court, without going into the merits of the case, has dismissed the suit on the ground that it is barred as res judicata by reason of the decision in the previous rent suit.
5. In second appeal it is contended for the plaintiffs that the decision of the lower Appellate Court is wrong in law, as the question of title, if tried at all in the rent suit, was tried only incidentally and not directly, and the judgment in the rent suit could not therefore make the master res judicata. It is conceded now, as it was conceded in the lower Appellate Court, that the decree for refund of money granted by the first Court cannot stand.
6. The question whether the plea of tes judicata is good in any case must depend for its answer upon the circumstances of the case.
7. The former suit, upon the judgment in which the plea of res judicata is based in this casa, was one for arrears of rent for certain years, due in respect of land now in dispute, brought by the present defendant No. 1 against the present plaintiffs. The issue raised upon the question of title was as follows:
8. For what share is plaintiff entitled to rent ?” The decision of the first Court upon that issue was this:
The plaintiff purchased under the certificate procedure for arrears of rent due to him. That was in 1882. In 1883 the defendant No. 1’s husband sued one of the old proprietors, Dinabundhu Chuckerbutty, on a mortgage bond, but did not make plaintiff a party. He brought the property to sale and purchased himself. But Dinabandhu was a party to the certificate case, and plaintiff had purchased that right.
The defendants do not show how and when they acquired title to Golap Sundari’s share. I find plaintiff entitled to the whole rent.
9. And the judgment of the District Judge upon this point on appeal was as follows:
In the next place it does not appear that the twenty-one maliks are registered in Register B under the Land Registration Act (Bengal Act VII of 1876), and under Section 78 the defendants are not bound to pay those unregistered, if they subsequently demand rent. Then defendants allege two purchases of two shares of their superior landlords. They only produce one sale certificate, and that is of date subsequent to the plaintiff’s purchase, and therefore is of no avail and was rightly rejected by the lower Court. Hence the defendants do not substantiate their plea.
10. These being the judgments of the Original and Appellate Courts upon the issue as to shares in the former suit for rent, the question is whether they operate as res judicata in the present suit for declaration of the plaintiff’s title to the share purchased by them in execution of their mortgage decree. We are of opinion that the question ought to be answered in the negative.
11. To make the judgment in the former suit conclusive in this, it must be shewn that the matter directly and substantially in issue in the present suit was directly and substantially in issue in the former. Now the matters directly and substantially in issue in this suit (leaving out of consideration points which have been given up and confining our attention to the only points to which the claim is now limited) are—whether the plaintiffs are entitled to the share of defendant No. 21, Dinabandhu, and to what share is defendant No. 1 entitled; while that in the former suit was as to what the share was for which the present defendant No. 1, the plaintiff in that suit, was entitled to rent. And though the share of the rent of a tenure to which a party is entitled depends generally upon the extent of his share in the property in which the tenure is included, or in other words, upon the extent of his title, yet, having regard to the frame of the issue and to the judgments’ of the Original and Appellate Courts in the former suit, the question of title can be said to have been in issue in that suit only incidentally and not directly, and it could not have been entertained in the form in. which it is now raised, nor was the question in that form decided in the former suit.
12. The issue in the rent suit was “for what share is the plaintiff entitled to rent” and not to what share of the property is the plaintiff entitled as owner.” And the judgment of the Court of Appeal rested upon considerations based on the provisions of the Land Registration Act, and on the fact of the purchase of the present plaintiffs being subsequent to that under which the present defendant No. 1 claimed; considerations which were necessary and sufficient for the determination of the rent suit, but which are not conclusive in a suit like the present, which is for determination of title to land, as distinguished from title to recover rent, and in which the plaintiffs claim a preferential right, notwithstanding that their purchase was subsequent to that of the defendant No. 1, by reason of that purchase being in satisfaction of a decree on a prior mortgage. Section 78 of Bengal Act VII of 1876, and Section 60 of Act VIII of 1885, bar inquiry in a rent suit into any question of title independently of the Land Registration record, while clause (a) of Section 89 of the former Act reserves the right to obtain a declaration of title independently of such record by a regular suit. And the cases of Nanack Chand v. Teluckdye Koer I.L.R. 5 Cal. 265, Dirgopal Lal v. Bolakee I.L.R. 5 Cal. 269 show that the right to possession, and therefore the right to recover rent by suit, belongs to the prior purchaser, though the subsequent purchaser in satisfaction of a prior mortgage may raise the question of priority of his title in a suit properly framed for the purpose.
13. The view we take on the question of res judicata is fully supported by the decision of the Privy Council in Run Bahadur Singh v. Lucho Koer I.L.R. 11 Cal. 301; L. R. 12 I. A. 23.
14. It was contended for the respondents that this view is opposed to the decision of the Privy Council in Radhamadhuv Holdar v. Monohur Mukerji I.L.R. 15 Cal. 756; L. R. 15 I. A. 97. We do not think that this contention is correct. In the case just referred to, the decision in the previous suit, which was no doubt one for rent, did not, and could not, rest upon any consideration based on the Land Registration Act or the Bengal Tenancy Act, because those Acts were passed subsequently; and the precise question of title that was raised in the subsequent suit bad been heard and decided in the rent suit. See the case of Rajkishen Mookerjee v. Radhamadhuv Holdar 21 W. R. 349. That case therefore is quite distinguishable from the present.
15. For the foregoing reasons we think the Court of Appeal below was wrong in holding that the suit was barred as res judicata. The judgment appealed against must therefore be set aside, and the case remanded to the lower Appellate Court to be tried on the merits. Costs will abide the result.
