Case: Raj Lakshmi Dasi And Others Vs. Banamali Sen And Othersbholanath Sen And Othersv.Raj Laksh

does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction like revenue Courts, land acquisition Courts, administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute. We have not been able to appreciate the distinction sought to be made out by Mr. Ghose that had this matter been decided by a District Judge, then the decision of the Privy Council would have been res judicata but as it was by a special Judge the effect was different. The District Judge when exercising powers of a Court under the Land Acquisition Act, in that capacity is not entitled to try a regular suit and his jurisdiction under the Land Acquisition Act is quite different from the jurisdiction he exercises on the regular civil side.(21) Next it was urged that the decision given by the Privy Council was ex parte, and it had not the force of res judicata unless the subject-matter of the two proceedings was identical. Reliance for the proposition was placed on certain observations contained in the decision of the House of Lords in New Brunswick Rly. Co. v. British and French Trust Corporation,1939 A.C.1. In that case a view was expressed that in the case of a judgment in default of appearance, a defendant is only estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment, and it was said that if a writ is issued for a small claim, the defendant may well think it is better to let judgment go by default rather than incur the trouble and expense of contesting it and that in such cases the default judgment on one bond cannot be used as governing the construction of 992 other bonds even if identical in tenor as it would involve a great hardship were the defendant precluded from contesting the last case. These observations have no apposite app1ication to the circumstances of the present case where the judgment of the first two Courts were given after full contest and then a party defaulted in appearing before the privy Council after saying obtained judgments in his favour in the Courts below.(22) A new point was taken for the first time before us which had not been taken in express terms in the written statement and which had not been argued either before the Subordinate Judge or before the High Court. The point was that the present suit of Rajlakshmi was barred by S. 47, Code of Civil Procedure inasmuch as she obtained a decree for possession of the whole estate including the four anna share now in dispute in her suit No. 11 of 1903 and having obtained a decree for possession, her remedy to recover possession of that share along with the twelve anna share was by executing that decree and not by a separate suit. The plea has no substance in it. The decree given in suit No. 11 of 1903 became un-executable by reason of the compromise arrived at in appeal in that case in 1907, which compromise was given full effect by actual partition of the property. When that decree was declared null and void at the instance of Rajlakshmi, it still remained binding inter parts during the lifetime of Katyyani and that was the reason why Katyayanis suit brought in 1919 for recovery of possession of the four anna share was dismissed. That suit, however, was held to have been instituted by Katyayani for protection of her personal rights and not as a representative of Jogindras estate. It was for this reason that the privy Council in the 1928 land acquisition case held that it had not the effect of res judicata on Rajlakshmis suit claiming title in the four anna share of Raj Ballavs estate which under the partition decree had gone to the Sens. Katyayani in view of the compromise decree had no right to execute the decree as a different situation had arisen after the decree had been passed. She had a fresh cause of action to bring a new suit for possession by setting aside the compromise. This she did but failed. As against Rajlakshmi the plea of s. 47 in these circumstances can have no validity. Even as against Katyayani it was untenable and it seems it was for this reason that this plea was never taken either in the earlier suit of 1919 or in the present suit. For the reasons given above this contention of Mr., Ghose also fails.(23) Mr. Ghose raised a question of limitation and urged that Rajlalshmis suit was barred by time inasmuch as the cause of action to sue for possession of the four anna share accrued to Jogindra and he having failed to file a suit, both Katyayani and Rajlakshmi must be taken to have lost the title to the part of the property in the possession of the Sens. The premises on which this contention is based is erroneous. Jogindra died long before the Sens took possession of the property and therefore Jogindra before his death had no cause of action against the Sens to eject them as they were not in possession. On the other hand, the trustees were holding the property on his behalf. The pleas of limitation and adverse possession were abandoned by the Sens on a former occasion, as already stated in the earlier part of this judgment, and they were negatived by the Privy Council in the land acquisition proceedings. It is evident that the possessions of the Sens during the lifetime of Katyayani could not confer any title on them as against Rajlakshmi, the next reversioner, whose title to the estate could only arise on the death of Katyayani.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds](14) These two decisions, in our opinion, are conclusive on the point of res judicata raised in the present case and in these circumstances it has to be held that the question of title to the four annas share was necessarily and substantially involved in the land acquisition proceedings and was finally decided by a Court having jurisdiction to try it and that decision thus operates as res judicata and estops the Sens and the mortgagees from reagitating that matter in thisThe High Court held that there can be no question that this decision is binding on the Sens and concludes them on the question of their title as against Rajlakshmi and that there could be no question also that it is binding on the mortgagees who were parties to the proceeding. In the concluding part of the judgment they observed as follows :"Our conclusion, therefore, is that there is nothing in the decision of the Privy Council which can operate as rej-judicata against the Dasses, either directly or constructively, on the question of the title of the Sens to the mortgaged properties. They are bound by the decision so far as it goes: just as the Sens can no longer say that the decision in suit No. 11 is not res judicata against them in a question with the plaintiff, both as regards title and the right to possession, so cannot the Dasses say that the decision is not res judicata against the Sens. But their own right to prove the title of the Sens against the plaintiff is in no way affected. This may look anomalous but such anomaly is inherent in the doctrine of res judicata which does not create or destroy title but is only a rule of estoppel."With great respect it seems to us that the conclusion reached as regards the mortgagees is neither illuminating nor sound. The anomalous result arrived at is on account of a wrong approach to the solution of the problem and is not the result of any anomaly inherent in the doctrine of resview of the provisions of Ss. 9, 10, 18 and 30. Land Acquisition Act, it is evident that if the mortgagee actually intervenes in the land acquisition proceedings and makes a claim for the compensation, and any question of title arises about the right of the mortgagor in respect to the land acquired which affects the claim for compensation he has every right to protect that title. In the proceedings commenced in 1928, for the acquisition of 2, Deb Lane, Calcutta as already stated, the mortgagees actually intervened and defended the title of their mortgagors but without success. In those circumstances, the view taken by the High Court that they had no locus standi to make the claim, as it was not based on their own title cannot be sustained because a mortgagee has no other title than the title of his mortgagor. The judgement of the High Court when it says that the Dasses claimed it on the footing that they being creditors of the Sens, with a lien on the property, were entitled to receive the money towards the satisfaction of their debt and their claim therefore was not a claim of title, but only a claim to receive the compensation money, is clearly erroneous as the claim could be established only by proving the title of their mortgagors as against Rajlakshmi. We have further not been able to follow the judgment of the High Court when it says that the land acquisition Court must be presumed to have dismissed the mortgagees claim on the proper and legal ground that the mortgagees being mere mortgagees had no locus standi to lay claim for the compensation money. It would have been more accurate if it was said that the land acquisition Court having held the title of the Sens proved to the premises acquired, presumed that the compensation money to which the Sens were entitled would be paid in due course to their mortgagees as both of them were sailing together and had a common Cause against Rajlakshmi. The High Court further observed that the mortgagees were bound by the decision of the Privy Council so far as it goes against them. We are not able to see to which part of the decision this remark relates. The only decision that the Privy council gave was on the question of the title at the Sens. The award of compensation to Rajlakshmi was a mere consequence of it, and it the Sens had no title in the four anna share at Raj Ballavs estate, the mortgagees obviously can have no lien on any Part at the property included in that share. The strangest part of the judgment of the High Court is when it says that the right at the Dasses to prove the title of the Sens against the plaintiff was in no way affected by the Privy council decision. It seems to have lost sight of the fact that that right was advanced by the Dasses more than once. It was exercised by them in the litigation of the year 1907 which ended in the decision of the High Court in 1910. It was exercised by them in the 1919 litigation and was again exercised by them in the land acquisition proceedings at 1928. In these circumstances, it appears to us that they had no further right left to establish the title of their mortgagors in the four-anna share of Raj Ballavs estate claimed bycontention is directly opposed to the provisions of s. 58, T. P. Act and the clear provisions of s. 73 which only states the law that prevailed even before then The result is that we are of the opinion that the High Court was in error in holding that the decision of the Privy Council in the land acquisition case of 1928 was not binding on the mortgagees on the question of the title of the Sens to the four anna share of Raj Ballavs estate as againstof his arguments, however, was convincing and might well have been summarily rejected but we think that it is due to Mr. Ghose and his long standing at the Bar that the arguments are noticed andour opinion, this argument is untenable and was negatived by their Lordships of the Privy Council in Bhagwati v. Ram Kali, 66 I. A.145 cited above, in clear and emphatic terms. In that case, in a regular suit which concerned the rest of the property the plea of res judicata was upheld by reason of the decision in the land acquisition cases which concerned another part of the property which had been acquired and for which compensation was payable. The quotation already cited earlier from this decision brings out that point clearly. The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the twocondition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by s.11of the Code and has application to suits alone. When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction like revenue Courts, land acquisition Courts, administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute. We have not been able to appreciate the distinction sought to be made out by Mr. Ghose that had this matter been decided by a District Judge, then the decision of the Privy Council would have been res judicata but as it was by a special Judge the effect was different. The District Judge when exercising powers of a Court under the Land Acquisition Act, in that capacity is not entitled to try a regular suit and his jurisdiction under the Land Acquisition Act is quite different from the jurisdiction he exercises on the regular civilplea has no substance in it. The decree given in suit No. 11 of 1903 became un-executable by reason of the compromise arrived at in appeal in that case in 1907, which compromise was given full effect by actual partition of the property. When that decree was declared null and void at the instance of Rajlakshmi, it still remained binding inter parts during the lifetime of Katyyani and that was the reason why Katyayanis suit brought in 1919 for recovery of possession of the four anna share was dismissed. That suit, however, was held to have been instituted by Katyayani for protection of her personal rights and not as a representative of Jogindras estate. It was for this reason that the privy Council in the 1928 land acquisition case held that it had not the effect of res judicata on Rajlakshmis suit claiming title in the four anna share of Raj Ballavs estate which under the partition decree had gone to the Sens. Katyayani in view of the compromise decree had no right to execute the decree as a different situation had arisen after the decree had been passed. She had a fresh cause of action to bring a new suit for possession by setting aside the compromise. This she did but failed. As against Rajlakshmi the plea of s. 47 in these circumstances can have no validity. Even as against Katyayani it was untenable and it seems it was for this reason that this plea was never taken either in the earlier suit of 1919 or in the present suit. For the reasons given above this contention of Mr., Ghose alsopremises on which this contention is based is erroneous. Jogindra died long before the Sens took possession of the property and therefore Jogindra before his death had no cause of action against the Sens to eject them as they were not in possession. On the other hand, the trustees were holding the property on his behalf. The pleas of limitation and adverse possession were abandoned by the Sens on a former occasion, as already stated in the earlier part of this judgment, and they were negatived by the Privy Council in the land acquisition proceedings. It is evident that the possessions of the Sens during the lifetime of Katyayani could not confer any title on them as against Rajlakshmi, the next reversioner, whose title to the estate could only arise on the death of Katyayani.