The Subordinate Judge of Gya raised, inter alia, the following issue : "Whether sections 2 and 3, Act VIII of 1859, apply to this case, and with what result?" He said as follows:-" On a reference to the decision of this Court, dated the 24th February 1864, in the case of this very plaintiff against Inderkumari Dai and others, it appears that this very plaintiff instituted the suit mentioned in the said decision, in respect of the property now in suit, alleging it to be the estate of his maternal uncle, Sitaram, deceased. In the said case, this issue was laid down, viz., whether, as alleged by plaintiff, it is true that, after the demise of his maternal uncle, Sitaram Meherwar, the right to succeed ⚫ him devolved, by the dharm shastras prevailing in the province ' of Behar, on plaintiff; or, as alleged by defendant, Inderku'mari Dai, is it true and correct that, during her life-time, no right accrues to a sister's son according to the shastras prevailing in the countries of Benares and Mithila?' The former Judge of this Court, by the said decision, made a decree in favor of plaintiff in these terms:- Mussamat Inderkumari Dai, defendant, should, during her life-time, hold possession of the 'decreed property, the estate of Sitaram Meherwar, without power to waste, and, after the demise of the said lady, 'plaintiffs will be entitled to hold possession of the estate of the said deceased person." 6 "On a reference to a copy of a judgment of the High Court, dated the 1st September 1864, in a case in which Mussamat Inderkumari Dai, the defendant in the case mentioned in the decision of the 24th February 1864, was appellant, and this very plaintiff, respondent, it appears that the Honorable Judges held that the plaintiff, that is, Mohan Lal, did not establish his right of action; that the lower Court's findings regarding the character of the defendant's estate, and further as to the plaintiff being, after the demise of the widow, entitled to obtain possession, were extrajudicial, and that the proper order was one of dismissal instead of decree; and accordingly they admitted the appeal, that is, reversed the decision of the first Court. "With reference to the features of the case, the allegations in 1870 BABOO MOHAN v. LACHMAN 1870 the previous and present suits of plaintiffs, the subject-matter of BABOO MOHAN the suit, and the facts that, in the previous suit, the disputed pro LAL BHAYA v. LAL. GYAL perty was the estate of Sitaram; that the disputed property in LACHMAN the present suit is (according to the examination of plaintiffs' pleader in Court) represented to be the estate of the said Sitaram; that in the previous case, the present plaintiff was plaintiff, and Mussamat Inderkumari Dai, defendant; and that in this case, the said plaintiff is plaintiff, and the locum tenens of defendant, Inderkumari Dai, is defendant." He accordingly dismissed the suit with costs. Baboo Mahes Chandra Chowdhry, for the appellant, contended that section 2, Act VIII of 1859, did not apply, and cited Sudanund Mohapattur v. Soorjo Monee Debee (1), Mahima Chandra Chuckerbutty v. Rajkumar Chuckerbutty (2), Mussamut Edun v. Mussamut Bechun (3), Kanhya Loll v. Radha Churn (4), Kriparam v. Bhagawan Das (5), Ooma Churn Dutt v. Beckwith (6), Janeswar Das v. Gulzari Lal (7), (1) 8 W. R., 455. (4) 7 W. R., 338. (5) 1 B. L. R., A. C., 68. (6) 5 W. R., Act X Rul., 3. several pleas raised by them, was untrustworthy. The decision of the Court of first instance was therefore affirmed. The first point taken in special appeal is that the question of whether the tenure purchased by the plaintiff was a mokurrari tenure or (7) Before Mr. Justice Kemp and Mr. Justice not having been adjudicated upon by the Glover. JANESWAR DAS v. GULZARI LAL. The 8th March 1869. KEMP, J.-In this suit the plaintiff, special respondent, sues for confirmation of title and declaration of possession under a deed purchasing the mokurrari rights of the defendant, No. 3. Defendants Nos. 1 and 2 alleged that the deed, under which the plaintiff claims, is a fraudulent deed, and that the holding is a khasht-kari one. The Judge holds that the deed under which the plaintiff claims, viz., a mokurrari sanad, has been sufficiently and clearly proved; and that the plea in bar set up by the defendants Nos. 1 and 2, that the suit of the plaintiff is beyond time, was untenable, and that the evidence adduced by defendants Nos, 1 and 2, in support of the Revenue authorities, no suit will lie in the Civil Court to set aside the decision of the Revenue Court. On this point we find that there was no adjudication in an issue raised in the Act X suit upon the validity of the mokurrari tenure. The decision of the Revenue authorities was conclusive of the cause of action then heard and determined, and nothing further. The issue tried by the Collector was the amount of rent for which the defendant in the Act X suit was liable. The mokurrari potta may have come collaterally in issue in the Act X suit for the purpose of enabling the Court to adjudicate upon the question of the amount of rent due by the defendant in that suit. But there was no decision upon the validity or otherwise of the mokurrari by which the plaintiff is estopped, Tekaitni Gowra Kumari v. The Bengal Coal Company (1). (1) Before Mr. Justice Kemp and Mr. Justice E. Jackson. TEKAITNI GOWRA KUMARI (PLAINTIFF) v. THE BENGAL COAL COMPANY (DEFENDANTS). 4th February 1870. JACKSON, J.-The plaintiff brought this suit to recover possession of Kuldia Gadi Karbarbari, Pergunna Kharrakdea, from the defendants. The plaintiff stated that the defendants, Piru Kumari and others, were in possession of this estate under temporary leases, the term of which had expired, and that she was consequently entitled to dispossess them; but the defendants had got up in a former rent suit a false mokurrari tenure of the estate, and had granted a sub-lease to the other defendants, the Bengal Coal Company, and under color of the said false mokurrari were preventing her from obtaining possession of Mauza Kuldia. The plaintiff, accordingly, sued to oust the defendants, and to obtain mesne profits from them. The defendants, Piru Kumari and others, in answer stated that they and their ancestors had held the village of Kuldia in mokurrari for generations, and that Bahadur Sing, an ancestor of the plaintiff, had confirmed their mokurrari rights by the grant of a potta in the year 1201, to their ancestor, Kripal Sing, and that they had all along held possession, and had given a sub-lease to the Bengal Coal Company. The Bengal Coal Company were made defendants in the suit, and put forward their claims to possession of the village under their lease from the mokurraridar defendants. The Deputy Commissioner of Hazaribagh was of opinion that neither the temporary leases set up by the plaintiff, nor the mokurrari potta set up by the defendants, were valid or genuine, but that it was proved to his satisfaction that the defendants had held this village, Kuldia, at a fixed rent, for more than 12 years anterior to the institution of the suit, and that such holding was adverse reference to the next point raised by Mr. Paul, I am of opinion that the judgment in the rent suit passed by the Moonsiff in the year 1860, and confirmed on appeal by the Principal Assistant Commissioner of Hazaribagh in the year 1861, is not conclusive evidence in the present suit. The subject-matter of that litigation was the question whether any arrears of the rent were due to the plaintiff from the defendants. It was alleged that, for the three years 1264, 1265, and 1266, a few rupees of rent had remained unpaid in each year. In order to decide this question, it became necessary to enquire into the validity of the leases now set up by the plaintiff, and which he then set up, and also into the validity of the mokurrari potta which the defendants now set up, and which they then brought into Court. The contest as to whether the alleged arrears of rent were due, in fact turned upon the question of these documents. In order then to decide as to the arrears of rent, the Courts went into evidence as to the genuineness of the documents. But the decision which they then arrived at is not conclusive in the present suit in which the plaintiff claims to recover the village, a property valued at nearly two lakhs of rupees. It is stated that this decision forms what in English law is called an estoppel. I think it is very doubtful whether any decision is an estoppel, except such as would come within the provisions of Section 2, Act VIII of 1859. If any subsequent suit had been brought for the alleged arrears of rent for the years 1264, 1265, and 1266, the decision in the former suit would prevent its being heard, supposing that the cause of action was the same. But if a suit had been preferred for the rent of the year.1267, I am not satisfied even upon the English law books that the decision for the former years would be what in English law is called 1870 BABOO MOHAN v. LACHMAN 1870 Baboo Mahendralul Shome contended that section 2, Act VIII BABOO MOHAN of 1859, barred the present suit. In the former suit against LAL BHAYA GYAL v. LACHMAN an estoppel. It would be evidence and most important evidence, and it might be a question whether it was not to be considered by the Court conclusive evidence; but I am not prepared to say that no evience could be offered to prove any fact which had been found against on the former occasion. But the case before us is much stronger than that. It has always been held that, for a decision to be conclusive evidence, it must not be passed by an inferior Court. If the judgment of an inferior Court is offered to prove the same facts, but for a different purpose, it is admissible in evidence, and the proceedings can be looked at; but the decision is not conclusive evidence. This rule is very distinctly laid down in Starkie's Law of Evidence. It was also laid down by Peacock, C. J., in the case of Mussamut Edun v. Mussamut Bechun (a). In the ruling there laid down, I entirely concur. "It is quite clear that, in order "to make the decision of one Court final "and conclusive in another Court, it must "be a decision of a Court which would "have had jurisdiction over the matter in "the subsequent suit in which the first deci"sion is given in evidence as conclusive." To rule otherwise would bring about the result that any plaintiff could oust the superior Courts of their jurisdiction by bringing a tentative case in the inferior Courts for some small matter, collateral to the real important fact which is in dispute between the parties. Looking to the constitution of the Courts in this country, it would be making over the most important suits to the decision of the lowest Courts. It may well be that if the plaintiff's story is true, he never heard of the defendant's mokurrari until he had preferred his suit for rent in the Moonsiff's Court, and the defendant had put in his answer. The jurisdiction to try this question now in dis (a) 8 W. R., 175. (b) 5 W. R., Act X Rul., 3. pute finally and conclusively would, in such a case, be given to the Moonsiff by the act of the defendant. The Moonsiff had, as every inferior Court has, jurisdiction to try every matter which is necessary for the adjudication of the point which is in contest before him, whether it involves interests of the largest value or the smallest; but such decision is only final as regards the fact which he is adjudicating upon. It is not a final adjudication for the decision of other facts which are not in contest before him. A decision by Morgan and Shum boonath Pundit, JJ., Ooma Churn Dutt v. Beckwith (b), has been cited in which the law is laid down in different terms, but the question did not on that occasion directly arise. Another decision, Chowdhari Nilkanth Prasad Singh v. Dignarayan Singh (c), has been cited, but it seems there to have been taken for granted that the Court which previously decided the question at issue was a Court of concurrent jurisdiction. At least that point was not debated or taken into consideration, and finally the appeal was decided on another point altogether. A third case, Chunder Shekhur Deb Roy v. Doorgendro Deb (d), has also been cited, but it is not certain that the Judges there intended to lay down a different ruling. That was a question as to the validity of a mokurrari sanad, and they laid down that the validity of the sanad was still open to question in relation to any other matter than the rent suit, though it must be admitted that it is difficult to reconcile the decision in that case with that dictum. Mr. Justice Phear, who was one of the Judges in that case, has recorded his opinion on the point again in the case of Mussamut Edun v. Mussamut Bechun (a). 1870 Inderkumari, the plaintiff, according to the interpretation of the law then prevalent, was held to be no heir to his maternal BABOO MOHAN uncle. The plaintiff's cause of action is the same now as it was in the former suit, viz., the death of his maternal uncle and dispossession by Inderkumari. The former suit was against Inderkumari, the present is against her representative. The parties being the same, the suit is not cognizable. Inderkumari's death gave rise to no fresh cause of action. The plaintiff does not claim as heir of Inderkumari. The plaintiff, having once been declared to have no right to the property in dispute, cannot question the adoption by Inderkumari. Baboo Chandra Madhab Ghose, on the same side, contended that the plaintiff sued in this case to recover the estate of Sitaram upon the title of inheritance. The inheritance opened out to him (if it did so at all) on the death of Sitaram, and his cause of action to recover the estate accrued then and there, and he accordingly brought the previous suit. The decision of the Principal Sudder Ameen in that case, as modified by the High Court, held plaintiff to have no right as heir to Sitaram. The question then arises whether plaintiff can maintain a fresh suit upon the same title of inheritance, which formed the basis of the previous suit. There was a final decision as against the plaintiff in the suit that was brought upon the true and only cause of action, and the death of Inderkumari does not give plaintiff any fresh cause of action whatever. True I am of opinion that they cannot be used as estoppels. It may be difficult to reconcile the different decisions of this Court which were cited by counsel on both sides during the argument; but looking to the established principles which govern rent cases, I have no doubt whatever that we are not precluded from going into all the questions of title raised in the present suit, notwithstanding the decisions in the rent suits. The parties in the rent suits and in this suit are, it is true, the same, but the subject-matter and the cause of action in the rent suits and in this suit are not the (a) 8 W. R., 175. LAL BHAYA GYAL V. LACHMAN LAL |