SARJU PRASAD SONAR Vs. MAHADEO PRASAD PANDEY

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for money on a mortgage. It would appear that Mahadeo Prasad executed a usufructuary mortgage on 10th June 1899 in favour of Sarju Prasad, who lost possession and has brought the present suit. No question is really material in the matter, except the single question of whether the suit is barred as res judicata. There were two previous decisions which were said to bar the present suit; but in this appeal we are concerned with only one of them that of a Revenue Court. Mahadeo Prasad had brought a suit against Sarju Prasad in the Revenue Court to eject him from a plot. Sarju Prasad pleaded that he was a mortgagee, and his plea was rejected and Mahadeo's suit decreed. It was contended in the present suit that this question of whether Sarju Prasad was a mortgagee or not having been decided against him by the Revenue Court, the matter was res judicata. Both Courts have held that the suit was barred.

(2.) We are of opinion that the answer is to be found in the plain terms of Section 11, and whether or no in some special types of cases a suit may be held to be barred, as it is put sometimes, by an extension of the principle to be found in Section 11, we can see no possible ground for going beyond the section in the present case. A careful reading of Section 11 makes it, in our view, perfectly plain that before a matter can be held to be res judicata it must be found, among other things, that the first Court was competent to try the subsequent suit. Whether we take the words "competent to try such subsequent suit," or the words "competent to try the suit in which such issue has been subsequently raised", it must be found that the first Court was competent to try, not merely a subsequent issue but the subsequent "suit."

(3.) Now it is manifest that in the present case while the Revenue Court was competent to try the issue as to whether Sarju Prasad was a mortgagee or not, it was not competent to try the subsequent suit. One of us, sitting with another Judge, considered this point in Hub Lal V/s. Gulzari Lal We have been referred by counsel for the respondents to the decision in Baru Mai V/s. Sunder Lal A.I.R. 1924 All. 10 We do not consider however that this question was there directly considered. In that case in a previous suit in the Revenue Court the defendant had sued to eject the plaintiff, and the question of proprietary title arose based upon the sale deed which was the basis of the second suit. It was pointed out that the Revenue Court could in the first case have adopted one of two courses: that it might have referred the parties to the civil Court or it might have constituted itself a civil Court and tried the question itself.