PAIKU Vs. MT. KAMALJI

JUDGEMENT

(1.) 1. I have heard counsel for the plaintiff-appellant in this case but find myself in full agreement with both the lower Courts in their finding that the judgment in Suit No. 275 of 1925, was necessarily res judicata in the present case, for there cannot be the slightest doubt but that in that suit the present plaintiff could and should have joined the relief which he now claims. It is equally clear to me that a decision on the question of the appellant's title to the house had necessarily to be made in that suit, as the then defendant directly raised the question of title, and that was found against the present plaintiff. The facts in Gopala v. Ania [1906] 2 N.L.R. 94 were very different. In it, in a previous suit the decision in which the lower Courts had held to operate as res judicata, the question of title was neither put in issue nor adjudicated upon. In the case quoted, the cause of action in the previous suit on a lease arose ex contractu; here, on the other hand, the causes of action, although relating to different details, viz., in the previous suit the materials of the house, and in this suit the site of the house, both arose out of precisely the same title, viz., the plaintiff's claim was that he had acquired the property under the sale-deed of 12th August, 1908. The question of alleged res judicata discussed in Govind v. Jijibai [1912] 2 N.L.R. 94 was an entirely different one, nor is the decision in Ramaswami Ayyar v. Vythinatha Ayyar [1903] 26 Mad. 760 which has been quoted by counsel for the appellant, at all apposite to the facts of, or the principles involved in the present case.

(2.) I am in full agreement with the decisions of the Judges of the two lower Courts and dismiss the present appeal without notice to the respondent.