BATHULA PITCHI REDDI Vs. YELLEPEDDI BHARATA SASTRI

JUDGEMENT

(1.) THE question raised in this case is one of res judicata. THE appellant represents the interests of one Pitchi Reddi. THE respondent represents the interests of one Rami Reddi. Rami Reddi and Bapi Reddi brought a suit, O.S. No. 372 of 1904, and got it declared that certain alienations by the widow in possession to Pitchi Reddi and to some others respectively were not binding upon the reversioners. In that suit Pitchi Reddi and the other defendants raised the question that the property did not belong to the widow's husband, and therefore the reversioners had no right to the properties. THEy also raised the question that the suit was barred by limitation. THEre were the two main questions raised in that case. THE District Munsif came to the conclusion that the siifit was barred by limitation and dismissed the suit express, by on the ground of limitation. He also gave a finding on the issue as to title against the plaintiffs-reversioners, holding that the properties did not belong to the estate of the deceased last male holder as alleged by them. But after coming to that finding he stated in his judgment that he recorded that finding for the purpose of preventing a remand, but that he really based his judgment upon the finding on limitation. It is the finding of the District Munsif in that suit on the question of title that is now claimed to make that question res judicata between the present parties. THEre was an appeal from the judgment of the District Munsif by one of the reversioners, Bapi Reddi; the other reversioner Rami Reddi was joined as the 5 respondent. So far as the second set of alienees were concerned the District Munsif's decree was confirmed on the finding that the suit was barred by limitation by the appellate Court. But the appellate Court expressed no opinion on the matter regarding Pitchi Reddi's claim as the matter ended in a compromise by which the decree of the first Court was set aside and the suit was decreed in appeal as per terms of the compromise, under which Pitchi Reddi agreed that Bapi Reddi should take the properties on the death of the widow, on the footing that the alienation to him did not cover more than the life-estate of the widow. THEre was a second appeal in the matter by Pitchi Reddi in the High Court in which this compromise decree seems to have been set aside and so far as Bapi Reddi was concerned the decree of the first Court was restored, Rami Reddi not being a party to the second appeal. This is how the matter stands. Now the Lower Court has held that the finding in the previous litigation as to title is not res judicata in the present litigation on the ground that the finding of the first Court as to title had been by implication set aside by the appellate Court and the High Court's decree restoring the first Court's decree was not binding upon Rami Reddi, because he was not a party to the second appeal. As-suming for a moment that this view is not correct and the first Court's findings are still subsisting, we must still hold that the question of title has not been made res judicata by those findings. THE finding of the first Court on the question of title was only a tentative decision, a sort of opinion expressed by that Court that the title was not in the person whom the rever-sioners put forward. THE District Munsif said, after finding on the question of title in favour of the alienee in paragraph 17 of his judgment, that the finding on the first, issue was beside the point and that he ought not to have recorded the finding, but for saving the suit from being remanded in case the appellate Court disagreed with him in his finding on the other issue. He then considered the question of limitation and found that the plaintiff's suit was barred by limitation and dismissed the suit. It is clear after this statement of the Munsif that he did not intend to base his judgment at all upon the question of title, his finding therefore can only be treated as an obiter dictum and not as res judicata at all. For a finding to become res judicata it is necessary that the points should have been heard and finally determined. When a Court merely for the purpose of preventing a remand records a conclusion on an issue not necessary for the decision, we cannot hold that it has finally determined the question. This point was decided by the Madras High Court in D. Narasamma V/s. D. Kannaya (1881) ILR 4 M 134. THEir Lordships held : " THE words in Section 13 of the Civil P. C. has been heard and finally decided by such Court, do not apply to an opinion expressed in the judgment on other issues not material for the purpose of the decree, though properly determined under Section 204 of the Civil P. C. by the Court of first instance. " That is, if the decree is not based upon a particular finding that finding cannot be treated as res judicata., We therefore agree with the Subordinate Judge in thinking that there is no res judicata in this case and dismiss the appeal with costs.