ASMATULLAH PRAMANIK Vs. GAMIR PRAMANIK

JUDGEMENT

(1.) The facts here are as follows: The land in suit was a non-transferable occupancy holding belonging to one J.N. Moitra and held under him by two brothers Jadab and Madhab in equal shares. The holding was brought to sale by the landlord for arrears of rent and purchased by himself in 1915. In 1916 Jadab mortgaged his 1/2 share to plaintiff. In February 1917 the two brothers sold a portion of the jote to defendant 1 and defendant 2 in the present suit. In 1918 plaintiff sued on his mortgage against Jadab making defendant 1 and defendant 2 also parties: the suit was decreed in March 1919 on compromise against Jadab and ex parte as regards defendant 1 and defendant 2. On 22 June, 1921 Jadab's half share was brought to sale in execution and purchased by the plaintiff. Upon his going to take possession he was resisted by defendant 1 and defendant 2 on the ground that they had taken a settlement from the landlord in January 1918. Hence the present suit. This settlement has been found as a fact by the lower appellate Court, which dismissed the suit with costs.

(2.) The main argument before us has been upon the question whether defendant 1 and defendant 2 are not now estopped from raising this question of paramount title in the settlement of 1918 seeing that they failed to raise it in the previous mortgage suit brought by the plaintiff against Jadab to which defendant 1 and defendant 2 were also made parties, though they did not appear. The question was not argued in the lower appellate Court for it was there conceded that no estoppel existed in the present case. The rule of res judicata is set out in Section 11, Civil P.C., 1908, which provides that no Court shall try any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties litigating under the same title, in a Court competent to try such subsequent suit, and has been heard and finally decided. If this part of Section 11 were in itself exhaustive it would be impossible in the circumstances of the present case to support the plea. But then comes Expln. 4 which lets in the principle of constructive res judicata by explaining that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. In the circumstances of the present suit it is conceded that the matter of the paramount title might have been made a ground of defence in the previous mortgage suit, and the dispute is narrowed down to the question whether it ought so to have been.

(3.) It is clear enough that as a general rule the proper scope of a mortgage suit is to cut off the equity of redemption and bar the rights of the mortgagor and those claiming under him; the only proper parties to such a suit being the mortgagor and the mortgagee and those who have acquired an interest under them subsequent to the mortgage. In such a case a stranger setting up an adverse claim of title cannot be made a party for the purpose of litigating that in the mortgage suit: Jaggeswar Butt V/s. Bhuban Mohan Mitra [1906] 33 Cal. 425. In Nila Kant v. Suresh Chandra [1886] 12 Cal. 414 certain defendants impleaded in a mortgage suit as being interested in the equity of redemption subsequent to the mortgage set up a title paramount and claimed not to be proper parties ; they were accordingly dismissed from the suit, and the Judicial Committee agreed that that was the correct view; otherwise it was said, the suit would have been multifarious and confused in the highest degree if it had gone on in that shape, as the defence raised was quite foreign to the scope of a mortgage suit. Certain other decisions are to be found in the reports bearing upon this question where, as in the present case, the person subsequently setting up a claim of paramount title is a party to the former litigation in another capacity which brings him within the legitimate arena of the mortgage suit.