KUB LAL Vs. GULZARI LAL

JUDGEMENT

(1.) This is a plaintiff's appeal in a suit for damages on the allegations that the defendant had wrongfully cultivated the plaintiff's share, a joint holding, and that the defendant had further cut certain trees and taken certain fruit from groves belonging to the plaintiff. We will deal first with the question of joint tenancy. The trial Court held that the plaintiff's joint ownership of the tenancy was res judicata, and decreed the plaintiff's claim, allotting him Rs. 531-10-0 as damages. It is admitted on behalf of both parties that there were two previous suits in 1916 and 1920, in which the question of ownership had been decided in favour of the plaintiff. The lower appellate Court, however, held that the matter was not res judicata because the plaintiff's title was based on his acquisition by sale and foreclosure of a certain share in an occupancy holding, and that such a title was void under the provisions of the Tenancy Act. It further held that a wrong decision of a point of law could not be the basis of a plea of res judicata, and in support of this proposition it relied on the decision of the Madras High Court in Mangalthammal V/s. Narayanswami Aiyar [1907] 30 Mad. 461, in which it was held that it has long been settled by authority in this Court and cannot, we think, now be questioned that the erroneous decision by a competent tribunal of a question of law directly and substantially in issue between the parties in a suit does not prevent a Court from deciding the same question arising between the same parties in a subsequent suit according to law.

(2.) We are, however, usable to concur in this expression of opinion. In our view, the words of Section 11 of the Civil P. C. are clear that no Court shall try any suit in which the matter directly and substantially in issue has....

(3.) There is, in our view, nothing in these words to limit the matter in issue to an issue of fact. On behalf, however, of the respondent a further reason has been urged in support of the plea that the matter was not res judicata. This reason is that while the first suits were within the competency of the Court which tried them, that Court could not have tried the present suit by reason of the fact that the valuation of the suit was in excess of the pecuniary jurisdiction of the Court which tried the earlier suits. The facts as regards the pecuniary jurisdiction of the two Courts are not denied by the appellant. We think therefore, that the respondent's contention must be accepted that the first Court was not competent to try the present suit. It is not sufficient that the first Court should have been competent to try one or other of the issues. Section 11, when split into its two parts, is clear: firstly, 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 or between the parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit and has been heard and finally decided by such Court; and secondly that no Court shall try any issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try the suit in which such issue has been subsequently raised, heard and finally decided by such Court.