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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,                            159 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.                            161 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. 162 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.                            163 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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                          165 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 169 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 170 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. 171 ,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. 172 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.                            173 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                            175 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 176 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. 177