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PETITIONER:

RAJ LAKSHMI DASI AND OTHERS

Vs.

RESPONDENT:

BANAMALI SEN AND OTHERSBHOLANATH SEN AND OTHERSV.RAJ LAKSHMI

DATE OF JUDGMENT:

27/10/1952

BENCH:

MAHAJAN, MEHR CHAND

BENCH:

MAHAJAN, MEHR CHAND

AIYAR, N. CHANDRASEKHARA

BHAGWATI, NATWARLAL H.

CITATION:

1953 AIR 33 1953 SCR 154

CITATOR INFO :

F 1960 SC1186 (8)

R 1961 SC1457 (12)

R 1964 SC1013 (16)

R 1965 SC1153 (5,51,52)

D 1971 SC 664 (19)

RF 1977 SC1268 (21)

RF 1986 SC 500 (6,7)

R 1987 SC2205 (8)

D 1991 SC 264 (4)

ACT:

Res judicata-Land -acquisition proceedings-Dispute as to

title between rival claimants-Decision after contest-Whether

operates as res judicata in subsequent suit-Effect of

decision on mortgagees.

HEADNOTE:

Where the right to receive compensation for property

acquired in land acquisition proceedings as between rival

claimants depends the title to the property acquired and

the dispute as to title is raised by the parties and is

decided by the Land Acquisition Judge after contest, this

decision as to title operates as res judicata in a

subsequent suit between the same parties the question of

title. The binding force of a judgment delivered under the

Land Acquisition Act depends general principles of law and

not s. 11 of the Civil Procedure Code, and the decision of

a Land Acquisition Judge would operate as res judicata even

though he was not competent to try the subsequent suit.

If a mortgagee intervenes in land acquisition proceedings

and makes a claim for compensation, and any question of

title arises about the title of the mortgagor in respect to

the land acquired which affects the claim for compensation,

he has every right to protect that title and if he defends

that title and the issue is decided against his mortgagor,

the decision would operate as res judicata even as against

the mortgagee.

Certain premises which formed part of the estate of a de-

ceased person were acquired in land acquisition proceedings.

There was a triangular contest about the right to the

compensation money between A and B, two rival claimants to a

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four annas

155

share in the estate of the deceased, and C, a mortgagee from

one of the claimants. The three parties required the

question of apportionment to be referred to the Court and a

Special Judge who was appointed decided the question of

title to the four annas share upon which the right to

receive the compensation depended and made an award. The

Land Acquisition Judge and High Court found the title in

favour of B after due contest between the parties but the

Privy Council reversed the decision and decided the question

of title in favour of A. In a subsequent suit between the

-same parties the question of title was again raised:,

Held (i) that the decision of the Privy Council the ques-

tion of title in the land acquisition proceedings operated

as res judicata as against B &a well as C, even though the

Land Acquisition Judge was a Special Judge who would have

had no juris diction to try the subsequent suit;

(ii)that the rule of res judicata was applicable even though

the subject matter of dispute in the land acquisition

proceedings was the compensation money and not the property

which was in dispute in the subsequent suit ;

(iii)the fact that the mortgagee did not appear at the

hearing before the Privy Council was immaterial as the

judgments in the first two courts were given after full

contest.

Ramachandra Rao v. Ramachandra Rao [1922] 49 I.A. 129, and

Bhagwati v. Ram Kali [1939] 66 I.A. 14 applied.

JUDGMENT:

CIVIL APPFLLATE JURISDICTION: Civil Appeals Nos. 110 and 111

of 1951. Appeals from the Judgment and Decree dated May 6,

1946, of the High Court of Judicature at Calcutta (Biswas

and Chakravartti JJ.) in Original Decree No. 43 of 1942 with

Civil Rule 399 of 1945, arising out-of Judgment and Decree

dated June 30, 1941,, of the Second Court of Additional

Subordinate Judge, 24 Parganas, in Title Suit No. 63 of

1938.

N. C. Chatterjee (Saroj Kumar Chatterjee and A.

N. Sinha, with him) for the appellants in Civil Appeal

No. 110.

Panchanan Ghose (S. N. Mukherjee and Benoyendra

Prasad Bagehi, with him) for Respondents Nos. I (a) and 1

(b) in Civil Appeal No. 110 and the appellants in Civil

Appeal No. I I I.

Ram Krishna Pal (guardian ad litem) for responded No. 5 (3)

in Civil Appeal No. 110 and No.4 (3) in Civil Appeal No.

111,

156

1952. October27. The Judgment of the court wag delivered

by

MAHAJAN J.-These two connected apeals from the judgment and

decree of the High Court of Judicature at Calcutta in appeal

from Original Decree No. 43 of 1942 dated the 6th May, 1946,

arise out of Title Suit No. 63 of 1938, instituted the

21st September, 1938, in the Court of the Second Additional

Subordinate Judge of Alipore, by Rajlakshmi against the Sens

and the Dasses for possession of the properties which

represent a four anna share of the estate once held by one

Raj Ballav Seal.

the 8th June, 1870, two days before his death, Raj Ballav

Seal, a Hindu inhabitant of the town of Calcutta governed by

the Bengal School of Hindu law, executed a will giving

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authority to his widow Mati Dassi to adopt a son and

appointed her and three other persons as executors and

trustees of the estate and gave them elaborate directions

for the administration and distribution of his extensive

properties. Raj Ballav was one of those persons who believe

0in leaving detailed instructions about their property and

the manner in which it is to be managed and taken after

their death and expect their wishes to be dutifully carried

out by those who survive them. How his wishes have been

respected by his descendants is now a matter of history.

Since the year 1890 this is the eighth or ninth litigation

concerning the construction of the testament he made that

fateful &ay, and if by any means Raj Ballav could be

informed of the result of these litigations and was told

that it had been held that he had died intestate, he would

surely rise out of the ashes and lodge an emphatic protest

against what has happened.

Raj Ballav died the 10th June, 1870, leaving him

surviving his widow Mati Dassi and three grandsons, who were

sons of a predeceased daughter by another wife and one of

whom died in 1880 unmarried. The grandsons' line will be

referred to in this judgment as the Sens. On Raj Ballav's

death, Mati Dassi entered

157

into possession of the estate and adopted one Jogendra Nath

Seal in 1873 under' the authority conferred her. Jogendra

married Katyayani, and Rajlakshmi, the plaintiff in the suit

out of which these appeals arise, is their only child. She

was less than one year old when Jogendra died in 1886.

Shortly after the death of Jogendra, Mati Dassi adopted

Amulya Charan, a brother of Katyayani in further exercise of

the authority conferred her. Mati Dassi died in 1899 and

the Sens then appeared to have taken possesion of the

estate. During the lifetime of Mati Dassi, the two

grandsons commenced a suit 22nd July, 1890, against Mati

Dassi and the other executors then living, Amulya and

Katyayani, for a declaration of the rights of the parties

under the will, administration of the estate, accounts and a

declaration' as regardit their quarter share of the net

income. Trevelyan J. declared that the grandsons were

entitled to an onefourth share of the estate absolutely and

directed accounts to be taken. This declaration was granted

against Mati Dassi alone, the suit having been dismissed

against the other defendants. The two grandsons having

taken possession of the whole estate after the death of Mati

Dassi, Amulya brought a suit the 9th October, 1901,

against them and Katyayani for construction of the will and

a declaration that he was the duly adopted son and heir of

Raj Ballav and that as such, he was entitled to a three-

fourth share of the estate and the Sens were entitled only

to the remaining one-fourth share. By a judgment dated 5th

January, 1903, the trial court dismissed the suit the view

that under the will the first adopted son had acquired an

absolute right, Pitle and interest.in the share -of the

estate left by the will of his adoptive father and he having

left a widow and a daughter, Mati Dassi had no authority to

make a second adoption. This decision was affirmed

appeal. [Amitlya Charan Seal v. Kalidas Sen(1)].

13th January, 1903, eight days after the decision -of the

trial, court dismissing Amulya's suit,

(I) (1905) I.LR. 32 Cal. 361

158

Katyayani commenced suit No. 11 of 1903 against the Sens,

Amulya and the receiver appointed in Amulya's suit, for

construction of the will, declaration of title, partition

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and accounts. In, the plaint as originally filed, Katyayani

admitted the title of the Sens to an one-fourth share of the

estate and claimed only a three-fourth share for herself as

the widow of Jogendra. The Sens claimed the whole estate

for themselves as the heirs of Raj Ballav. They pleaded

that the will was not genuine and that even if it was

genuine, the bequests in favour of the adopted son and for

the worship of the deity were invalid and that even if they

were valid, Jogendra having died before attaining the age of

20 years had taken nothing under the will.

During the pendency of this suit, the 25th September,

1903, the Sens mortgaged the whole sixteen annas of the

estate to one Shib Krishna Das in order to secure a loan of

Rs. 7,000. The mortgagee and his representatives in

interest will be described in this judgment as the Dasses.

Amulya's appeal against the judgment of the trial court

dated 5th January, 1903, was decided in 1905, during the

pendency of Katyayani's suit No. 1 1 of 1903 instituted

the 13th January, 1903, and after the Dasses as mortgagees

had entered into possession. the 26th September, 1905,

after the decision of the High Court in Amulya's suit,

Katyayani applied for an amendment of the plaint so as to

include a claim for the whole estate in accordance with that

decision. This application was allowed. To this amended

plaint no further written statement was filed by the Sens.

By a judgment dated 21st December, 1905, the trial Judge

decreed the claim of Katyayani for,the whole of Raj Ballav's

estate and a decree for recovery of possession of the whole

estate was passed in her favour. It was held that the whole

of the corpus of the estate had vested in Jogendra and the

provisions of the will whereby a fourth-share had been

bequeathed to the grandsons were void and ineffectual. The

plea of adverse possession and limitation taken by the Sens

was abandoned at the trial,

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Against this decision an appeal was taken to the District

Judge. The mortgagee Shib Krishna Das was also added as a

party in the appeal. The appeal was compromised and under

the compromise Katyayani was to get a six anna share in

absolute right in the estate, Kanai, her father, was to get

another six anna share for his supposed troubles and

expenses in connection with the litigation and each of the

Sons a two anna share, their shares to be subject to the

mortgage. charge. The compromise decree was passed 9th

January, 1907, and the suit was remanded to the trial court

in order that a partition might be effected and a final

decree passed. A partition was made in due course and final

decree was passed 10th September, 1907.

On the 18th April, 1907, after the consent decree had been

made by the appellate court in Katyayani's suit, Rajlakshmi,

daughter of Katyayani and the next reversioner to the estate

of Jogendra, commenced suit No. 59 of 1907 'against the

parties to the compromise for a declaration that the

compromise and the consent decree were void and inoperative

and that they were not binding her. The trial court held

that the compromise was binding Rajalakshmi but that she

was entitled to a declaration that Katyayani had taken only

a widow's estate 'in the six annas share given to her.

appeal by Rajlakshmi, the High Court 8th August, 1910,

reversed the trial court's decree and declared that the

consent decree was void and inoperative as against

Rajlakshmi and that she was in no way bound by the partition

proceedings which had taken place in execution thereof. The

appeal was not contested by the Sons but was contested by

the representatives of their mortgagees (the Dasses) who

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asserted the title of their mortgagors to an one fourth-

share of the estate both under the compromise decree and the

will. (Bajlakshmi Dassee v. Katyayani Dassee(1).

In the year 1919, two cross suits were commenced by the

grandsons and by Katyayani and Rajlakshmi

(I) (1911) I.L.R 38 Cal. 639.

160

for recovery of the twelve annas share and the four annas

share respectively in the possession of the respective

parties. Katyayani brought suit No. 115 of 1919 for

recovery of the four anna share against the Sens and the

Dasses, while the Sens brought suit No. 112 of 1919 for

recovery of the twelve annas share of the estate against

Katyayani and Rajlakshmi. Both these suits were dismissed

by the trial judge and his decision was affirmed appeal

21st July, 1925. Before the commencement of this suit, the

Dasses had brought a suit the foot of their mortgage and

had obtained a mortgage decree which was made final 23rd

November, 1918.

The property described as 2, Deb Lane, Calcutta, forming

part of Raj Ballav's estate and which had' been allotted

under the compromise to the share of the Sens was notified

by a declaration under the Land Acquisition Act for

acquisition the 16th January, 1921. the 27th April,

1928, Ajit Nath Das, mortgagee, made an application'

claiming the entire amount of compensation money and

contended that the mortgagee decree-holders were entitled to

the whole of it. Rajlakshmi claimed the entire amount as

owner of the sixteen anna share of Raj Ballav's estate.

the 7th July, 1928, a joint award was made in favour of 'all

the claimants. Rajalakshmi asked for a reference to the

court the point of apportionment of compensation by a

petition made by her the 18th July, 1928. She asserted

that the Sens and the Dasses were not entitled to any

portion of the compensation money. Ajit Nath Das,

mortgagee, also made an application for reference the 18th

August, 1928. A similar petition was made by Jogender Mohan

Das. Bholanath Sen filed a statement of the claim 8th

June, 1929. A special judge was appointed under the Land

Acquisition Act to try the matter. He disallowed

Rajlakshmi's claim and held that the Sens were entitled to

the entire compensation money. Both the Sens and the Dasses

were represented by their respective counsel and made common

cause against Rajlaksbmi.

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Rajlakshmi appealed to the High Court against the decision

of the special judge but without any success. Her appeal

was dismissed 8th March, 1935. She preferred an appeal to

the Privy Council. This was allowed and Rajlakshmi was

declared entitled to the entire compensation money.

(Rajlakshmi v. Bholanath Sen) (1).

Within two months of the decision of the Privy Council, the

suit out of which these appeals &rise was commenced, as

already stated, by Rajlakshmi 21st September, 1938,

against the Sens and the Dsses for possession of the

properties which represented the four anna share of the

estate allotted to the Sens, and possession of which was

delivered to them in pursuance of the terms of the final

decree in suit No. 11 of 1903. A portion of these had since

then been purchased by the Dasses in execution of the

mortgage decree. This suit was dismissed by the trial

judge. Rajlakshmi appealed to the High Court against the

dismissal of her suit. The High Court allowed the appeal

in part, the judgment and, decree of the trial court in so

far as they dismissed the plaintiff's suit as against the

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Sens were set aside and the suit was decreed against them

and the plaintiff's title to the properties in suit was

declared as against them. It was ordered that she should

recover possession from them, as also from defendant 14 as

receiver but that her title and possession were subject to

the rights of the defendants-respondents 3 to 13 (Dasses) to

proceed against the properties in execution of their

mortgage decree the basis that these properties were in

the possession of and dealt with by defendantsrespondents 1

and 2 as representing the four anna share of the estate to

which they had title. An enquiry was also ordered as to the

amount of the mesne profits. The appeal was dismissed as

against respondents 3 to 13, the Dasses. The correctness of

this decision has been impugned before us in these appeals

by the respective parties to the extent that it goes against

them.

(I) (1938) 65 I.A. 365.

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In order to appreciate the contentions raised in the two

appeals it is necessary to determine the true scope and

effect of the decision of the Privy Council in the land

acquisition case of 1928 (Rajlakshmi v. Bholanath Sen) (1).

The premises acquired in those proceedings admittedly formed

Part of the estate of Raj Ballav Seal, which under the

compromise decree of 1907 had by partition fallen to the

four anna share allotted to the Sens. There was a

triangular contest about the award of the compensation and a

joint award was made in their favour after notice to all the

parties interested in the property acquired including the

mortgagees. That the mortgagees were within the definition

of the phrase " person interested" is plain from the

language of section 10 of the Act and perhaps it would have

been unnecessary to mention this elementary fact by

reference to the provisions of the Act had not the High

Court thought otherwise. As already stated, the Sens, the

Dasses and Rajlakshmi required the question of apportionment

of compensation to be referred to the determination of the

court and they stated the grounds which their claims were

based. The dispute that arose between the parties is

apparent the face of those proceedings and in the words of

Lord Thankerton who delivered the decision of the Board, the

matter in controversy was whether Rajlakshmi was entitled to

the compensation money awarded in respect of the acquisition

of part of the premises, 2 Deb Lane, in the town of Calcutta

as successor to the estate of Raj Ballav Seal of which the

said premises formed part. The claim to compensation made

by the respective parties was founded the assertion of

their respective titles in that part of Raj Ballav's estate

which under the partition decree of 1607 had been allotted

to the Sens subject to the charge of the Dasses, and the

decision the question of apportionment depended the

determination of that title. The land acquisition court had

thus jurisdiction to decide the question of title of the

parties in the property

(I) (1938) 65 I.A. 365.

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acquired and that title could not be decided except by

deciding the controversy between the parties about the

ownership of the four anna share claimed by the Sens and

Rajlakshmi.

The Land Acquisition Court and the High Court appeal held

the title of the four annas share proved in the Sens. But

their Lordships of the Privy Council held otherwise and

found that the Sens had no such title, and that Rajlakshmi

alone was entitled to the whole of the estate of Raj Ballav

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Seat including the four anna share that was in possession of

the Sens and which their mortgagees had a charge. This is

how their Lordships settled the matter in controversy:-

"It is important to get a clear view of the position of the

estate after the decision of the High Court of 8th August,

1910, the effect of which (inter alia) was to annul the

consent decree of the District Court in No. 11 of 1903, and

to leave the decree of the Subordinate Judge, dated December

21, 1905, which has been already quoted, as final and

binding. This decree declaring Katyayani's title to the

whole estate, was clearly a decree in Katyayani's favour as

representing the whole interests in the estate, and it has

rightly been so regarded by both the courts below in the

present case; and it formed res judicata in any I question

with the Sens. As regards possession of the estate, while

the decree made an order for recovery of possession, the

possession given under the partition of 1907 continued, the

Sens being in possession of the four annas. It seems clear

that possession under an agreement which was not binding

the reversionary heirs could not avail the Sens in a

question with a reversionary heir, whose right to possess

could not arise until the succession opened to such heir."

The above is a clear determination of the question of title

between the Sens and Rajlakshmi in regard to the four anna

share. It was argued behalf of the Sens before the Privy

Council that in any case

164

the decision in suit No. 115 of 1919instituted by Katyayani

against the Sens and their mortgagees for recovery of the

four anna share operated as res judicata the claim of

Rajlakshmi. This plea was Inegatived and it was held that

the decree in suit No. 115 of 1919 could not and did not

affect Rajlakshmi's right to possession. There can thus be

no doubt that the determination of the question of title to

this part of Raj Ballav's estate was within the scope of the

land acquisition proceedings and the title was finally

determined in those proceedings.

In order successfully to establish a plea of res judicaia or

estoppel by record it is necessary to show that in a

previous case a court, having jurisdiction to try the

question, came to a decision necessarily and substantially

involving the determination of the matter in issue in the

later case. It was at one time a matter of doubt whether

the determination of a court to which a matter had been

referred by the collector was such a decision and that doubt

was resolved by the judgment of the Privy Council in

Bamachandra Bao v. Ramachandra Rao(1), which decided that

where a dispute as to the title to receive the compensation

had been referred to the court, a decree thereon not

Appealed from renders the question of title resjudicata in a

suit between the parties to the dispute. In that case it

was observed as follows:-

"The High Court appear only to have regarded the matter as

concluded to the extent of the co'mpensation money, but that

is not the true view of what occurred, for, as pointed in

Badar Bee v. Habib Merican Noordin(2) it is not competent

for the court, in the case of the same question arising

between the same parties, to review a previous decision no

longer open to appeal, given by another court having

jurisdiction to try the second case. If the decision was

wrong, it ought to have been appealed from in due time. Nor

in such circumstances can the interested parties be heard to

say that the value of the subject-matter

(1) (1922) 49 I.A. 129.

(2) [1909] A.C. 623.

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which the former decision was pronounced was comparatively

so trifling that it was not worth their while to appeal from

it. If such a plea were admissible, there would be no

finality-in litigation. The importance of a judicial

decision is not to be measured by the pecuniary value of the

particular item in dispute. It has been suggested that the

decision was not in a former suit, but whether this were so

or not makes no difference, for it has been recently pointed

out by this Board in Hook v. Administrator-General of

Bengal(1) that the principle which prevents the same matter

being twice litigated is of general application, and is not

limited by the specific words of the Code in this respect."

In Bhagwati v. Bam Kali(1) an issue was decided in favour of

B in a land acquisition proceeding that she was entitled to

the whole of the compensation money. In a subsequent suit

by another widow, who was also a claimant in the land

acquisit ion proceedings, for a declaration that she was

entitled to a half share in the estate inherited by her-

husband and his brothers, it was held that her suit was

barred by the rule of res judicata, the District Judge

having in the previous proceeding decided that she had no

title to the land. In that case part of the property in

dispute was, acquired under the Land Acquisition Act and the

Collector by his award apportioned the compensation between

the widows in equal shares. Both the widows raised the

question of title to the compensation. The objections were

referred under the Act to the District Judge and the

District Judge the issue as to whether Bhagwati was

entitled to the entire compensation or whether Ram Kali was

entitled to a half, found in favour of Bhagwati. Ram Kali

then brought a suit' against Bhagwati for a declaration of

her right to a half share of the whole of the property

inherited by the brothers and their mother. The Subordinate

Judge held that the suit was barred by res judicala by the

decision of the District Judge in the reference under the

Land Acquisition Act. The High Court

(1) (1921) 48 I.A. 187.

(2) (1939) 66 I.A. 145.

166

reversed this decision holding that Ram Kali's title ,was

not the subject-matter of the reforence to the ;District

Judge and he was not therefore competent to try it. The

Privy Council reversed this decision and held that the

District Judge did determine the question of the ownership

and his decision was binding upon the parties and the-matter

was res judicata.

These two decisions, in our opinion, are conclusive the

point of resjudicata raised in the present case and in these

circumstances it has to be hold that the question of title

to the four anna 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 re-agitating that matter in this

suit. We are not now concerned with the question whether

the Privy Council was right or wrong.

The High Court held that there can be no question that this

decision is binding the Sens and concludes them the

question of their title as against Rajlakshmi and that

there could be no question also that it is binding the

mortagees 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 res

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judicata against the Dasses, either directly or

constructively, 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 plaint-

iff 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,"

167

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 account of

a wrong approach to the solution of the problem and is not

the result of any anomaly inherent -in the doctrine of res

judicata. The learned Judges posed certain questions and

then attempted to answer them in view of the limited

provisions of section 11, Civil Procedure Code, which in

terms apply only to suits, forgetting for the moment, if we

may say so with respect, that the doctrine of res judicata

is based general principles of jurisprudence. The

questions were: (1) Did the judgment of the Privy Council in

the 1928 land acquisition proceedings decide any question as

to the right of the mortgagees to hold from the Sens a

mortgage of the four anna share, or their right to prove the

title of their mortgagors in a question between themselves

and the reversioners to Jogendra's estate ? (2) Could the

mortgagees have raised these questions in the land acquisi-

tion proceedings and even if they could have, are the

questions such that they ought to have been raised? It is

difficult to appreciate how both these questions were

germane to the issue to be decided in the case. Here it is

worthwhile repeating what was said by Sir Lawrence Jenkins

in delivering the judgment of the Board in Sheoparsan Singh

v. Ramnandan Singh(1):"

`` In view of the arguments addressed to them, their

Lordships desire to emphasize that the rule of res judicata

while founded ancient precedent, is dictated by a wisdom

which is for all time. 'It hath been well said' declared

Lord Coke, 'interest reipublicaeut sit finis litium-

otherwise, great oppression might be done under colour and

pretence of law' (6 Coke 9a). Though the rule of the Code

May be traced to an English source, it embodies a doctrine

in no way opposed to the spirit of the law as expounded by

the Hindu commentators. Vijnaneswara and Nilakantha include

the plea of a former judgment among those allowed by law,

each citing for this purpose the text of

(i) (1916) 43 I.A. 91 at p. 98

168

Katyayana who describes the plea thus: If a person, though

defeated at law, sue again, he should be answered, "you were

defeated formerly". This is called the ple a of former

judgment. And so the application of the rule by the courts

in India should ,',be influenced by no technical

considerations of form, but by matter of substance within

the limits allowed by law."

The binding force of a judgment delivered under the Land

Acquisition Act depends general principles of law and not

upon section 11 of the Act. If it were not binding, there

would be no end to litigation,

The- mortgagees had been fighting about the title of the

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mortgagors from - the year 1910. When Rajakshmi lost her

suit instituted 18th April, 1917, to contest the

compromise decree in suit No. 59 of 1907 and preferred an

appeal to the High Court, that appeal was not contested by

the Sens at all, but was contested by the representatives of

their mortgagee who asserted the title of the mortgagors to

one-fourth share of the estate both under the compromise

decree and under the will. In the year 1919 when the two

cross suits above mentioned wore commenced, the mortgagees

were impleaded as parties and took an active interest in the

cases. When the proceedings under the Land Acquisition Act

were commenced in the year 1928 a joint award was made in

their favour along with the Sens and Rajlaksmi. As parties

interested in the property acquired they asked for a

reference and gotit. They were represented by counsel

before the land acquisition court and got a decision the

question of title as to the four anna share of the estate of

the late Raj Ballav in favourofthemortgagorsandthemselves.

They were impleaded as parties in the appeal preferred by

Rajlakshmi to the High Court and before that court also they

were represented by counsel and were successful in defending

that appeal. They were again impleaded as parties by

Rajlakshmi in the appeal preferred by her to the Privy

Council. They took active part in the proceedings for leave

to appeal and in

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having the papers prepared for the use of the Privy Council.

As a matter of fact, they paid part of the printing cost.

Their non-appearance before the Privy Council at the time of

hearing cannot thus relieve them of the consequence of an

adverse decision given against them by, the Privy Council.

They had every, right in those proceedings to defend the

title of their, mortgagors to the four anna share and they

fully exercised their right except that at the last stage,

possibly having won in the two courts below, they assumed

that the decision in the final court would also be

favourable to them and did not appear before the Privy

Council. It had been held in a number of cases prior to the

amendment made in section 73 of the Transfer of Property Act

by Act XX of 1929 that where the property acquired forms

part of an estate which is mortgaged for an amount larger

than the amount awarded as compensation, the mortgagee is

entitled to the whole of the compensation in liqcuidation of

the mortgage debt. This view was accepted by the

legislature when it added sub-sections (2) and (3) to

section 73. Sub-section (2) is in these terms

"Where the mortgaged property or any part thereof or any

interest therein is acquired under the Land' Acquisition

Act, 1894, or any other enactment for the time being in

force providing for the compulsory acquisition of immoveable

property, the mortgagee shall be entitled to claim payment

of the mortgagemoney, in whole or in part, out of the amount

due to the mortgagor as compensation."

In view of the provisions of sections 9, 10, 18 and 30 of

the 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

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intervened and defended the title of their martgagors but

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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 their own title cannot be

sustained because a mortgagee has no other title than the

title of his mortgagor. The judgment of the High Court when

it says that the Dasses claimed it the footing that they

being; creditors of the Sens, with a lien 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 and

acquisition court must be presumed to have dismissed the

mortgagees' claim 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

Sons 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

the question of the title of the Sens. The award of

compensation to Rajlakshmi was a mere consequence of it, and

if the Sens had no title in the four anna share of Raj

Ballav's estate, the mortgagees obviously can have no lien

any part of the property included in that share. The

strangest part of the judgment of the High Court is when it

says that the right of the Dasses to prove the title of the

Sens against the plaintiff was in no way affected by the

Privy Council decision.

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,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 of 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 Ballav's estate claimed by them.

It may be pointed out that the mortgagees having got a

decision in their favour from the High Court, absented

themselves before us. One of the representatives of the

original mortgagees, Ram Krishen Das, is a minor and was

represented by a guardian ad litem appointed for the suit in

the court below. He appeared and contested the appeal and

urged that the mortgagees had no interest whatever in the

property acquired and that they were interested only in

realising their debt. This contention is directly opposed

to the provisions of section 58 of the Transfer of Property

Act and the clear provisions of section 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 the mortgagees

the question of the title of the Sens to the four anna share

of Raj Ballav's. estate as against Rajlakshmi.

Mr. Panchanan Ghose for the. Sens made a valiant effort to

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escape from the effect of the Privy Council judgment in

Rajalakshmi v. Bholanath Sen(1) a number of grounds.

None of 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 and met.

The first contention raised by :him was that the judgment of

the Privy Council could not operate as

(i) [1938] 65 I.A. 365.

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res judicata against the present contention of the Sens and

the mortgagees,about the title to the four anna share of Raj

Ballav's estate, because the subject matter of those

proceedings was the compensation money, a sum of Rs. 900,

and not the property that is the subject-matter of the

present suit. He argued that when the plea of res judicata

is founded general principles of law, that plea can only

prevail provided the subject-matter in the two cases is

identical. It was conceded that such contention could not

be sustained under the provisions of section 11 of the Code.

In our opinion this argument is untenable and was negatived

by their Lordships of the Privy Council in Bhagwati v. Bam

Kali(1), 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 case 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 two cases.

It was then argued by Mr. Ghose that the judge who decided

the apportionment issue in the land acquisition proceedings

of 1928 was a special judge appointed under the Land

Acquisition Act and not being a District Judge, the two

decisions of the Privy Council., i.e., Bamachandra Bao v.

Bamachandra Rao(2) and Bhagwati v. Bam Kali(1), had no

application, as the special judge had no jurisdiction to

hear the present suit, while the District Judge in those

cases would have jurisdiction to hear the regular suits. It

was urged that to substantiate the plea of resjudicata even

general principles of law it was necessary that the court

that heard and decided the former case should be a court

competent to hear the subsequent case. This contention was

based the language of

(I) [1939] 66 I. A. 145.

(2) [1922] 49 I.A. 129.

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section 11. The condition regarding the competency of the

former court to try the subsequent suit is one of the

limitations engrafted the general rule of res judicata by

section 11 of the Code and has application to suits alone.

When a plea of res judicata is founded 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 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

them by the statute. We have not been able to appreciate

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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 decided 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 the regular civil side.

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 this proposition was placed

certain observations contained in the decision of the House

of Lords in NeW Brunswick Rly. Co. v. British,* French

Trust Corporation(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

(I) (1939] A.C. I.

23

174

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

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 defendat precluded from contesting

the later case. These observations have no apposite.

application to the circumstances of the present case where

the judgments of the first two courts were given after full

contest and then a party defaulted in appearing before the

Privy Council after having obtained judgment in his favour

in the courts below.

A now 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 section 47, Civil

Procedure Code, inasmuch as she obtained a decree for

possession of the whole estate including the four anna share

now in dispute in her suit No. II 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 unexecutable 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

partes during the lifetime of Katyayani and that was the

reason why Katyayani's 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 Jogendra's estate. It was for this reason

that the Privy Council in, the 1928 land acquisition case

held that it

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had not the effect of res judicata Rajlakshmis suit

claiming title in the four anna share of Raj Ballav's estate

which under the partition decree had gone to the Sens.

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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 Raj-

lakshmi the plea of section 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.

Mr. Ghose raised a question of limitation and urged that

Rajlakshmi's suit was barred by time inasmuch as the cause

of action to sue for possession of the four anna share

accrued to Jogendra 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 which this contention is based is

erroneous. Jogendra died long before the Sens took

possession of the property and therefore Jogendra before his

death had no cause of action against the Sens to eject them

as they were not in possession. the other hand, the

trustees were holding the property his behalf. The pleas

of limitation and adverse possession were abandoned by the

Sens 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 possession of the Sens during the lifetime of

Katyayani could not confer any title them as against

Rajlakshmi, the next reversioner, whose title to the estate

could only arise the death of Katyayani.

For the reasons given above we hold that the appeal (No. 111

of 1951) preferred behalf of the

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Sens has no merits and must fail. It is accordingly

dismissed with costs. The appeal preferred by Rajlakshmi

against the mortgagees '(No. 110 of 1951) is allowed with

costs in all the courts and her title to the property in

suit and for possession of the f same is decreed and it is

directed that the defendants do deliver Possession of the

suit properties to the plaintiff. It is further declared

that the plaintiff is entitled to mesne profits from the

defendants. An enquiry will be made as to the amount of

mesne profits due prior and-subsequent to the institution of

the suit and there will be a decree for the amount so

determined.

In conclusion we do express the hope that this judgment will

finally conclude the ruinous litigations which have-been

going in courts since the last 62 years in respect of Raj

Ballav's estate and ingenuity of counsel will no longer-be

pressed into service to again reopen questions which must

now be taken as finally settled.

Appeal No. 110 allowed. Appeal No. 111 dismissed.

Agent for the appellants in C. A. No. 110 and respondent No.

1 in C.A. No. Ill S. C. Bannerjee.

Agent for respondents Nos. 1 (a) and (b) in C.A. No. 110 and

appellants in C. A. No. Ill: Sukumar Ghose.

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