Miabhoy, J.:— The question has got to be decided with reference to s. 11 of the Civil Procedure Code. It is not disputed by the learned advocate for the plaintiff that except the ingredient, presently to be mentioned, all the other ingredients, which are necessary for the application of s. 11, are present in the present case. One of the ingredients, which is necessary to be established in order that a matter may be res judicata, is that the matter in issue in the second suit must have been directly and substantially in issue in the previous suit. Another ingredient, which is necessary, is that the matter must have been heard and finally decided in the previous suit. It is not disputed before me by the learned advocate for the plaintiff Saraswati that the issue regarding the fact whether Chanbasappa was joint with Shivashankar and the character of the suit property was directly and substantially in issue in the previous litigation. It is also not disputed that particular issue was heard and decided in the previous litigation. But the point which is urged is that, although the matter was heard and decided, it was not finally decided in the previous litigation. Therefore, the question for consideration is whether the aforesaid issue No. 1 in the previous litigation was finally decided in that litigation; in other words, whether the finding which was arrived at in the previous litigation on issue No. 1 was a final decision.
2. Several authorities were cited at the Bar. It is not necessary for me to examine all the authorities which have been cited on this point. From the aforesaid facts, it is quite clear that the question has got to be decided with reference to the case of a plaintiff whose suit has been dismissed and against whom finding of more than one matter has been given in the previous litigation. The contention of the learned advocate for the plaintiff is that the decision which was arrived at in that litigation by the learned trial Judge about the heirship of the plaintiff Saraswati and the maintainability of the suit was a decision which was finally given in that suit, but that the finding which was recorded on issue No. 1 was not a final decision. It was contended that the learned trial Judge in suit No. 54/50 having arrived at the conclusion that the plaintiff was not an heir of Chanbasappa, and that the existence of Neelawa debarred her from claiming as the heir of Malkappa, it was not necessary for the Court in the previous litigation to decide the further point as to the character of the property and the point as to whether Chanbasappa and Shivashankar were joint or not. It was urged that the test of finality of decision was whether the issue, which had been decided in the previous litigation, was an issue which was material for reaching a final conclusion and for granting a decree in favour of the plaintiff or dismissing the suit of the plaintiff.
3. The learned appellate Judge has come to the conclusion that the issue regarding the heirship of Saraswati and the existence of Neelawa was the main issue on which a final decision was given in the previous litigation, and, consequently, the decision given by the trial Court as regards the character of the property and the status of Chanbasappa was an incidental finding and was not necessary for arriving at the final decision in the previous litigation. In my opinion, in so far as the learned appellate Judge came to the conclusion that the issue was not a material issue and that the finding was incidental, the conclusion cannot be supported. As already stated by me, there is no doubt that the issue regarding the status of Chanbasappa vis a vis the property in suit was one of the material issues which had to be tried by the trial Court in suit No. 54/50. The main question for consideration is whether the finding on that issue was a final decision or not. Of all the authorities which were cited before me, the authority which is on all fours with the facts of the present case is the ruling reported in Peary Mohun Mukerjee v. Ambica Churn Bandopadhya . 1897 I.L.R 24 Cal. 900.. In that case, a suit was brought by A against C for damages for not removing certain offensive matter from his land. That suit was resisted by C on two grounds: The first ground was that the suit was not maintainable because a notice, as required by a certain Bengal Statute, was not given, and the second ground was that C was not bound to remove the filth from the plaintiff's property. The trial Court reached the conclusion that the suit was not maintainable because the requisite notice was not given. The trial Court did not stop there. It proceeded further to decide the question about the liability of the defendant C to remove the filth from the plaintiff's property. The Court reached an adverse conclusion against the plaintiff, and held that the defendant was not bound to remove the offensive matter from the plaintiff's land. On these two grounds, the suit of the plaintiff was dismissed. The plaintiff subsequently brought another suit against the same defendant and claimed the same relief as in the previous suit. The defendant C again resisted the suit on the merits on the ground that he was not liable to remove the filth from the plaintiff's property. The defendant contended that the latter point was res judicata between the parties by virtue of the decision arrived at in the previous suit. The decision of the Calcutta High Court was that the matter was res judicata. The principal judgment was delivered by Banerjee, J., and the reasoning in support of the decision is to be found at pages 905-906. The relevant passage is as follows:—
“The judgment in the former suit, which is here made the basis of the plea of res judicata, determines each of the two questions raised, namely the question of notice and that of the defendant's liability against the plaintiff; and the question of the defendant's liability was raised directly and substantially in the former suit as it is in this. So that it cannot be said, either that the decision in the former suit upon the question of the defendant's liability was superseded by the decree by reason of the decree being in spite of that decision, or that the question was not a direct and substantial question in the case. If the question of notice had been found for the plaintiff, the question of the defendant's liability would clearly have been a direct and substantial question in the case. Can it then be said that it ceased to be so by reason of the decision upon the question of notice which came to be considered prior to the question as being prior in point of logical order? Having regard to the language of explanation II of section 13, quoted above, which makes any matter which might or ought to have been made ground of attack or defence come within the description of matter directly and substantially in issue, I find it very difficult to say that this question should be answered in the affirmative. It may no doubt be argued that as the plaintiff could not have taken advantage of any favourable finding in the former judgment on the question of the defendant's liability by reason of the decree being in spite of such finding, he ought not to be held bound by any unfavourable finding on that question. But the answer to that argument is this, that the plaintiff might well have avoided the effect of an adverse finding on the question of liability by asking the Court to determine first the question of notice, and not to go into the question of liability if the question of notice was found against him. If instead of doing that, the plaintiff led the Court and his adversary to go into the whole question of the liability of the defendant, presumably at considerable expense of time to both, it is too late now for him to complain of the result; and we should not be keeping in view the reason for the rule of res judicata, which is to give finality to litigation, and to prevent any one from being twice vexed for the same matter, if we were to hold that the decision in the former suit does not operate as res judicata.”.
4. Therefore, the main ground on which the Calcutta High Court reached the aforesaid conclusion was that, in the previous litigation, the plaintiff had invited the Court to give a decision on the aforesaid point in issue. The assumption in the aforesaid ruling is that a litigant is entitled to invite a Court to decide matters in issue piecemeal. It is difficult to splice the aforesaid reasoning with the practice which is prevailing in the State of Bombay. This Court has always taken the view that the trial Court, as far as possible, should decide all the issues, which are material to be decided, and invariably should not decide a suit on preliminary points. This practice is followed in order that a litigation may not become protracted if the higher Court takes a different view regarding a preliminary point which may have arisen before the trial Court. Moreover, if a litigant were to ask a trial Court to decide an issue as a preliminary issue, or if he were to lay down the order, in which issues should be tried and found I doubt very much, whether the trial Court would ever accede to the request. Therefore, so far as the trial Court is concerned, in my opinion, it cannot reasonably be stated that the litigant had the power, even if he had the will, to invite the Court to give decisions on particular issues only and in a particular order. Under the aforesaid circumstances, in my opinion, the aforesaid test is not a proper and just test to be applied for the purpose of determining as to whether an issue has been finally decided or not. Another case which is relevant is the Privy Council case reported in Midnapur Zamindary v. Naresh Narayan Roy . 1924 26 Bom. L.R 651, P.C.. In this case, in a suit, instituted in 1891, in the Court of the Subordinate Judge, Nadia, (No. 6 of 1891), the plaintiff's mother, in 1899, obtained a decree for possession of certain Chur lands against Robert Watson & Co. predecessors-in-interest of the Midnapur Zamindari Co. Ltd. Robert Watson & Co. thereupon appealed to the High Court contending, inter alia, that the Subordinate Judge, having held that it was necessary to enquire whether they had jotedari rights in the lands in suit, had erred in decreeing possession in favour of the plaintiff; that they, the appellants, had jotedari rights and could not be evicted without their tenancy being determined in the manner prescribed by law. The High Court dismissed the appeal, and confirmed the decree of the Subordinate Judge, holding that Robert Watson & Co. had no such jotedari rights. In execution of the decree, the Court delivered possession to the plaintiff. Subsequently, the plaintiff sued the Midnapur Zamindari Co., the successor in title of Robert Watson & Co., for partition ejectment and other incidental reliefs in respect of the same land. One of the contentions of the defendants was that the judgment of the Court in Suit No. 6 of 1891, inasmuch as it bore on a question which was not necessary or proper for trial in that action, was not res judicata precluding the defendants from pleading the existence of jotedari rights in the land. It appears that, in the trial Court in suit No. 6 of 1891, the plaintiff's pleader had, on December 28, 1893, made a statement to the effect that the plaintiff claimed only a right to the settlement of the disputed land and no other right. On the same day, the defendants' pleader also made a statement, and asserted that, in any event, khas possession could not be given because the defendants had jotedari rights in the land. As a result of the statement made by the plaintiff's pleader, the learned Judge did not decide the issue regarding the jotedari rights claimed by the defendants. The learned Judge stated: “The plaintiffs do not ash for khas possession. Hence it is not necessary to enquire whether the defendants have a jotedari right in the lands.” In spite of the aforesaid view of the learned Judge, Robert Watson & Co. preferred an appeal and claimed that the jotedari rights, which they were claiming, should be decided in the appeal. The appellate Court, therefore, considered the question about the jotedari rights and came to the conclusion that there was no evidence in support of jotedari rights claimed by the defendants. The appellate Court drew up a decree, but did not incorporate the aforesaid decision in the decree. The appellate Court confirmed the first Court's decree. On the aforesaid facts, it was contended before the Calcutta High Court, that the decision regarding the jotedari rights which the defendants had claimed was res judicata. The defendants contended that this was not so in view of the decision of the Subordinate Judge that it was not necessary to enquire whether the defendants had jotedari rights in the lands or not. The Calcutta High Court's judgment, which has been re-produced by their Lordships of the Privy Council and approved, has dealt with this particular point in the paragraph which has been reproduced at page 660 of the aforesaid report. The ratio decidendi is that the defendants, having invited the decision of the High Court, on the issue regarding the jotedari rights of the defendants, the matter must be taken to have been directly and substantially in issue and the decision must be said to be a decision which was finally reached by the Court. The Calcutta High Court expressed itself as follows (p. 660):—
“Now, had the matter rested where the Subordinate Judge left it, no such question as we have to discuss would have arisen. Whether the suit might and should have been properly determined without entering into the question of the tenancy right as the plaintiff apparently wished to do, we need not now enquire. For, in fact (as we have seen), the present appellants directly insisted on the point being tried, and alleged that the First Court should have done so. It was contended before us that whatever the appellants might have done in this respect, the issue in fact was not a necessary or proper one to be tried in that suit, and that it is open to us to say so. But we must see first whether this Court adjudged otherwise, that is, whether this Court having the question before its mind decided that the issue did arise. If so, that decision would be as much res judicata as the final determination of the issue on the merits. If we are of opinion that the Court did so decide, we are not concerned to see whether it did so rightly or not, and indeed cannot do so.…”
5. Therefore, the ratio decidendi of the aforesaid case was that the test which is to be applied is to see whether the Court, which adjudged the issue, considered that the issue was a material and essential issue and whether it determined the particular issue finally. On the facts of the aforesaid case, having regard to the fact that the defendants had invited the Appellate Court to decide the issue regarding the jotedari rights, their Lordships came to the conclusion that the matter was not only directly and substantially in issue, but that it was also finally decided. This subject also appears to have been considered in a ruling of our High Court reported in Dinkar v. Anant . 1928 30 Bom. L.R 902.. In this case, the plaintiffs were the alienees of a mortgagor. They first sued to redeem the mortgage. The suit was dismissed on the main issue that the plaintiff's sale-deed was hollow and fraudulent. The suit was also resisted by the mortgagee on the ground that the plaintiffs were not agriculturists. That point was also decided by the Court against the plaintiffs in the first litigation. Subsequently, a second suit for redemption was brought by the plaintiffs. The defendant raised a contention that the issue regarding the hollowness of the sale-deed which the plaintiffs had taken from the mortgagee was res judicata between the parties. The answer of the plaintiffs was that having regard to the decision reached by the previous Courts, that the plaintiffs were not agriculturists, the aforesaid issue regarding the hollowness of the sale transaction could not be said to have been finally decided. Mr. Justice Patkar held that the matter was res judicata. The basis of his decision is to be found in the following passage (p. 905):—
“If the previous suit had been dismissed principally on the ground that it was premature, it could have been said that the decision on the other points including the point as to whether the plaintiff's sale-deed was hollow or fraudulent was not necessary in the previous suit and the finding on that point would not operate as res judicata….”
6. After making these observations, Mr. Justice Patkar examined the contentions in the previous litigation and, ultimately, he reached the following conclusion (p. 907):—
“I think, therefore, that it cannot be said that the finding on that issue was a finding on an unnecessary issue. In fact, the plaintiffs invited the two Courts to give a decision on that issue, and as has been held in Midnapur Zamindwri Company v. Naresh Narayan Roy a decision invited on an unnecessary issue might operate as res judicata….”
7. It is in the light of the aforesaid authorities that it is to be determined whether the issue regarding the status of Chanbasappa vis a vis the suit property was finally decided in the previous litigation. In this connection, the defendants lay emphasis upon the fact that was the first issue which was raised and answered by the trial Court in suit No. 54 of 1950. It was, therefore, contended that it was the principal issue which the trial Court had been called upon to decide and was so decided. I do not think that it would be proper to infer, merely from the fact that an issue has been numbered as issue number one and tried first from out of the several issues raised in the trial Court that it was necessarily the principal issue and that the decision on it was a final decision, nor could it be said from the position occupied by an issue that the party had invited the Court to give its decision on that issue first. In this connection, it is necessary to bear in mind the following passage from the judgment delivered in suit No. 54 of 1950, which has been quoted by the learned appellate Judge:
“Even if my finding on issue No. 1 is not correct, still it has come in evidence that the mother of Shivshankar and Chanbasappa and grandmother of Chanbasappa's son Malkappa was alive…”
8. Therefore, there is intrinsic evidence in the judgment itself from which one can come to the conclusion that the principal issue which the trial Court, in Suit No. 54/50, had in mind was about the question of the heirship of Saraswati and Parvati. In my opinion, there is no doubt whatsoever that issue went to the root of the matter. If once it is held that the plaintiff is not the heir of Chanbasappa or Malkappa, and that the preferential heir was Neelawa, the decision regarding the status of Chanbasappa vis a vis the suit property becomes of minor importance. After the aforesaid decision is reached, the plaintiff may think that, during the life-time of Neelawa, she has no right to the aforesaid property and may acquiesce in the aforesaid part of the judgment. From this, it cannot be said that the plaintiff had invited a decision on the aforesaid point, and, therefore, was concluded by that decision for ever. In my opinion, having regard to the facts of the present case, if the plaintiff Saraswati and/or her sister Parvati had preferred an appeal from the aforesaid judgment, most probably, the appellate Court would have thrown off the claim of the plaintiff Saraswati on the ground that she was not the heir of either Malkappa or Chanbasappa, and, consequently, would have come to the conclusion that it was not necessary to take a decision as to the status of Chanbasappa vis a vis the suit property. The question for consideration is whether the plaintiff is precluded from re-agitating the aforesaid question simply because she did not prefer an appeal from the aforesaid decision. The contention of the learned advocate for the defendants was that the test which should be applied in all such cases is not whether an appeal has or has not been filed. It was contended that the true test is whether an appeal could have been filed by the plaintiff Saraswati. However, it is conceded that if the appellate Court had upheld the decision of the trial Court on the issue regarding the heirship of Malkappa only and had not determined the issue regarding the status of Chanbasappa regarding the suit property, then the matter would not have been res judicata. The argument was that as the plaintiff Saraswati did not prefer an appeal and allowed the aforesaid decision to rest intact, she was precluded from re-agitating this matter. Having regard to the practice prevailing in this State, to which I have made a reference, namely, that the trial Courts in this State give their decision on all points in spite of the fact that the suit can be decided on a preliminary point, I am unable to give effect to the aforesaid argument of the learned advocate for the defendant. In my opinion, having regard to the aforesaid practice prevailing in this State, each case has got to be answered with reference to its own facts, and one of the tests which is to be applied for determining this question is to find out whether the Court, which adjudged the issue, considered the issue to be material and essential. In my opinion, having regard to the facts of the present case, and having regard to the observations made by the Court in suit No. 54 of 1950 which I have quoted in this paragraph, the issue regarding heirship was one which was regarded by the determining Court as essential and which went to the root of the plaintiff's (Saraswati's) case, and the moment an adverse finding was reached on that issue, the suit of Saraswati became premature. Under the aforesaid circumstances, in my opinion, the previous litigation must be taken to have been decided more on the ground that the suit of Saraswati was premature, and, consequently, in my opinion, the issue regarding the status of Chanbasappa vis a vis the suit property was not finally decided and the same can be re-agitated by the plaintiff Saraswati over again. Therefore, in my opinion, the conclusion which was arrived at by the learned District Judge was correct.
9. Defendant No. 2 appealed under the Letters Patent.
10. Sharad Manohar, for the appellant.
11. T.N Walavalkar, for respondent No. 1.
12. Tarkunde, J.:— This Letters Patent Appeal arises from a suit for possession of an agricultural land filed by the plaintiff Saraswati. The trial Court held on a preliminary issue that the suit was barred by res judicata and dismissed the suit. In appeal, the District Court found that the suit was not so barred and remanded it to the trial Court for disposal on the remaining issues. An appeal from this order was filed in this Court and was heard by Miabhoy, J., who confirmed the decision of the District Court. The present appeal was then filed on a certificate granted by Miabhoy, J. under cl. 15 of the Letters Patent.
13. The previous suit, the decision in which is claimed to operate as res judicata was filed in 1950 by the present plaintiff Saraswati and her step-sister Parvati. In both the suits, Saraswati claimed that the property in dispute originally belonged to the joint family consisting of her father Chanbasappa and his brother Shivshankar, and that on a partition between Chanbasappa and Shivshankar, the property had fallen to the share of Chanbasappa. Chanbasappa died in 1942, leaving behind his son Malkappa, his daughters Saraswati and Parwati, and his widow Ambawa. Shivshankar died in 1946, and the defendants in, the suit of 1950 as well as the present suit were the widow and the son of Shivshankar. Saraswati claimed in the former suit, as she was done in the present suit, that after the death of Chanbasappa in 1942, the property went to his son Malkappa, who died in 1943; that after Malkappa's death, the property was vested in his mother (Chanbasappa's widow) Ambawa, who remarried in 1944; and that on the remarriage of Ambawa, the property was inherited by the daughters Saraswati (the present plaintiff) and Parwati.
14. In the suit of 1950, the claim of the plaintiffs was opposed by the defendants on two grounds: firstly, that there was no partition between Shivshankar and Chanbasappa, so that on the death of Chanbasappa and Malkappa, the property went by survivorship to Shivshankar and thereafter to the defendants; and secondly, that even supposing that the property was the separate property of Chanbasappa and then of Malkappa, the plaintiffs Saraswati and Parwati were not the nearest heirs of Malkappa. In dismissing the suit of 1950, the Court accepted both these defences. On the first issue, whether the suit property was the separate property of Chanbasappa, the Court held that the plaintiffs had failed to prove the alleged partition between Chanbasappa and Shivshankar. On the second issue, whether the plaintiffs were the heirs of the deceased Malkappa, the learned trial Judge observed that at the time when the suit was filed, one Nilawwa, the mother of Chanbasappa and Shivshankar, was alive, and that Nilawwa was a nearer heir of the deceased Malkappa, being his grand-mother, than the plaintiffs who were his sisters. Nilawwa, however, died during the pendency of the suit, and this fact was brought to the notice of the learned Judge. But the learned Judge was of the view that Ambawa, despite her remarriage, was the nearer heir of the deceased Malkappa. Hence the second issue was also decided against the plaintiffs.
15. The question which we have to consider is whether the finding given by the Court in the previous suit on the first issue, that the property was not the separate property of Chanbasappa, is res judicata so as to bar the claim made by the plaintiff in the present suit.
16. The only reason why some difficulty arises in deciding this question is that the decree in the previous suit was supported by two findings, and it is claimed for the plaintiff that only one of the findings, but not both, are res judicata. Obviously, a finding can operate as res judicata only if it has resulted in a particular decree or order. Where a decree or order is based on only one finding, there can be no doubt that the finding would have the force of res judicata. Similarly, a finding cannot be res judicata if it has not gone into the making of a decree or order, i.e, if the decree or order was passed inspite of the finding, as where a finding was recorded against a party who succeeded, or in favour of a party who failed, on other issues. In the present case, it is urged by Mr. Valavalkar for the plaintiff that the finding which really decided the former suit was regarding the plaintiffs not being the nearest heirs, and that, therefore, the other issue about the alleged partition was not a matter which was substantially in issue and, at any rate, was not finally decided.
17. There is apparently some conflict of authority on the question whether, in a case where a decree or order is based upon several findings, each one of the findings operates as a res judicata. In Shib Charan Lal v. Raghu Nath, it was observed by a Division Bench (p. 195):—
“…if there were two findings of fact either of which would justify in law the making of the decree which was made, that one of such two findings of fact which should in the logical sequence of necessary issues have been first found, and the finding of which would have rendered the other of such two findings unnecessary for the making of the decree which was made, is the finding which can…operate as res judicata.”
18. The facts of that case, however, show that this observation of the learned Judges was obiter. The plaintiff in that case had filed a previous suit for declaration of his title to a share of the property in dispute, and the Court which decided that suit, while giving a finding in the plaintiff's favour that his joint ownership was proved, had rejected the plaintiff's suit under the proviso to s. 42 of the Specific Relief Act on the ground that the plaintiff, though he was not in possession of the property in question, had failed to ask the further relief of being placed in joint possession. It was held that in the subsequent suit by the plaintiff for joint possession of the property, the finding given in his favour in the previous suit that he was a part-owner of the property did not operate as res judicata against the defendants. The decree by which the previous suit was dismissed was obviously not grounded on the finding that the plaintiff was a part-owner of the property, and the finding could not, therefore, operate as res judicata. It was not a case in which the decree in the previous suit was apparently based upon two findings.
19. Peary Mohun Mukerjee v. Ambica Churn Bandopadhya was a case in which such a question was directly involved. In that case the plaintiff's suit was for damages for the failure of the defendant, who was the chairman of a Municipality, to remove certain offensive matter from the property belonging to the plaintiff. A similar suit had been previously filed by the plaintiff against the same defendant for a similar relief, but that suit had been filed without serving a notice on the defendant as required by a certain local Act. The previous snit was dismissed on the ground that the plaintiff had not proved that he had given notice to the defendant, and also on the ground that the defendant was not liable to remove the offensive matter from the property. Although the subsequent suit was filed after giving notice, it was held by the Calcutta High Court that the finding in the previous suit that the defendant was not liable to remove the offensive matter was res judicata so as to bar the subsequent suit. It was held that although the previous suit might have failed for want of notice, the question of the defendant's liability was properly raised in the former suit, and that the decision thereon formed an additional ground for the dismissal of the suit and had the force of res judicata.
20. In Vencataraju v. Ramanamma, it was held that where a judgment is based on the findings on two issues, the findings on both the issues will operate as res judicata, though the finding on only one would have sufficed to sustain the judgment. The defendant in that suit had filed a previous suit against the plaintiff for possession of certain properties, and that suit was dismissed on two grounds, viz., that the properties had been purchased by the defendant (plaintiff in the prior suit) Benami for the plaintiff, and that the plaintiff had acquired a title to the properties by prescription. A subsequent suit was filed by the plaintiff for possession from the defendant of another property which was covered by the same sale-deeds as the properties in the previous suit, Although the decision in the former suit was based on the additional ground of prescription which was not available to the plaintiff in the subsequent suit, it was held that the finding with regard to the sale-deeds being Benami for the plaintiff was binding on the defendant in the subsequent suit.
21. There are, however, a number of cases where, out of several findings on which a previous decision was based, one finding only was held as decisive and the others were held not to operate as res judicata. Ahmedbhoy Habibhoy v. Sir Dinshaw M. Petit . 1909 11 Bom. L.R 366. was a suit for the specific performance of a contract of purchase, and the suit was decided by a single Judge on the Original Side of this Court. The question which arose for decision in that case was whether the plaintiff had cleared his title to the property which he had agreed to sell. The plaintiff's sons were parties to the suit, and they denied the plaintiff's right to sell the property. A previous suit filed by one of the plaintiff's sons against the plaintiff for partition of the property had been dismissed primarily on the ground that, according to the customary law governing the parties, the plaintiff's son was not entitled to enforce a partition during the father's life time. The Court in the previous suit—it was a decision of the Privy Council—after saying that this finding was sufficient to dispose of the case, observed that it was “advisable to express an opinion” on the question whether the property was joint family property, and found that it was not proved to be so. The learned Judge who heard the subsequent suit for specific performance held that the prior suit was really decided on the finding that the son had no right to partition, and that the further finding with regard to the property not being of the joint family was an obiter dictum, not amounting to res judicata.
22. In Irawa v. Satyappa,5 a previous suit between the parties had been dismissed both on the merits as well as on the ground that the plaintiff had refused to pay the requisite additional Court-fee. It was held that the failure of the plaintiff to pay the necessary Court-fee was sufficient by itself for the dismissal of the suit, and that, therefore, the findings on the merits, not being necessary for the decision of the suit, did not have the force of res judicata.
23. In Shankarlal v. Hiralal,6 the Privy Council approved the decision of the Calcutta High Court that the findings in a certain prior suit did not operate as res judicata. In the prior suit it was held that the suit did not lie because the notice required by s. 80 of the Civil Procedure Code was not given, but while dismissing the suit, the Court had also given findings on the merits against the plaintiffs. The Calcutta High Court had held that the learned Judge who had dismissed the prior suit was bound to dismiss it under O. VII, r. 11, of the Civil Procedure Code, and that the findings given by him on the merits were obiter and could not support the plea of res judicata. This view was found by the Privy Council to be correct.
24. In Dinkar v. Anant,7 the plaintiffs who were alienees from a mortgagor, had filed a previous suit for redemption of the mortgage, and that suit was dismissed on two grounds—firstly, that the sale deed by which the plaintiffs claimed to have acquired the equity of redemption was hollow and fraudulent, and secondly, that the plaintiffs were not agriculturists and that the suit having been brought before the expiry of the period of redemption was premature. In a subsequent suit filed by the plaintiffs after the expiry of the period of redemption, it was held by a Single Judge of this Court that the finding in the previous suit regarding the bogus and fraudulent nature of the alienation in favour of the plaintiffs was res judicata so as to bar the second suit. The learned Judge, however, observed that if the previous suit had been decided “principally” on the ground that it was premature, the other finding that the plaintiff's sale deed was hollow or fraudulent would not have operated as res judicata.
25. Several other cases were cited before us, but they are not material to the question which we have to decide. It appears from the decisions mentioned above that it cannot be laid down as a general proposition that where a previous decision is supported on two or more findings, all the findings will necessarily operate as res judicata. Where the previous suit was dismissed on a technical ground which made the suit untenable, findings recorded on the merits would normally be obiter dicta. Similarly, if the Court which decided the prior suit has itself based the decision on only some of the findings recorded by it, or if under the circumstances of the case its decision can be fairly attributed to only some of the findings so recorded, the other findings would not operate as res judicata. In other cases, where the previous decision is based upon, and is attributable to, several findings, all the findings will have the force of res judicata.
26. Turning to the present case, the finding of the Court in the previous suit that the property was not the separate property of Chanbasappa was as completely decisive of the suit as the other finding that the plaintiffs were not the nearest heirs of Malkappa. The major portion of the judgment of the learned Judge who decided the previous suit was devoted to the consideration of the first issue. After finding on the first issue against the plaintiff, the learned Judge observed:
“As plaintiffs have failed to prove the alleged partition, plaintiffs have no right to file this suit and Shivshankar had become owner of all the family properties by survivorship.”
27. This was followed by the following observation:—
“Even if my finding on issue No. 1 is not correct still it has come in evidence that mother of Shivshankar and Chanbasappa and grandmother of Chanbasappa's son Malkappa was alive when this suit was filed…”
28. Mr. Valavalkar, who appeared on behalf of the plaintiff, respondent No. 1, urged that this observation shows that according to the learned Judge himself his finding on the second issue was decisive of the suit. We do not think any such conclusion would be justified. The two sentences taken together make it clear that, according to the learned Judge, the plaintiffs' suit failed on account of his findings on each of the two issues. Obviously, the plaintiffs' suit was liable to be dismissed if either of the two issues was found against them. Under the circumstances, it is not possible to say that the decree in the previous suit was based upon, or is attributable to, only one of these two findings.
29. It seems to have been urged on behalf of the plaintiff in the District Court as well as before Miabhoy, J. that the plaintiffs in the previous suit could not challenge the finding on the first issue by filing an appeal because the finding on the second issue was in any case bound to go against them and was a complete answer to their claim. This argument seems to have found favour with the learned District Judge as well as with Miabhoy, J. With great respect, we find that the finding of the learned trial Judge on the second issue in the previous suit was at least as open to challenge as his finding on the first issue. The reason why the learned trial Judge held that the plaintiffs were not the nearest heirs of Malkappa was that, in his view, Malkappa's mother Ambawa continued to be vested with the property of the deceased Malkappa even after her re-marriage. The learned Judge had himself noted that Aimbawa's remarriage took place after the death of Malkappa. If so, it appears prima facie that, by virtue of s. 2 of the Hindu Widows Re-marriage Act, 1856, Ambawa was divested of such property as she had inherited from Malkappa, and that the property had then passed first to Nilawwa and after her death to Saraswati (the plaintiff in the present suit) and her step-sister Parwati. We, therefore, do not agree that the finding of the learned trial Judge on the second issue was so obviously unchallengeable as to have prevented the plaintiff from filing an appeal from the decree in that suit.
30. In the result, we hold that the learned trial Judge in the present suit was right in dismissing the suit on the ground that it is barred by res judicata. Accordingly, the orders passed by the District Court and by this Court in the appeal from order are set aside, and the decree of the trial Court dismissing the plaintiff's suit is restored.
31. There will be no order as to costs in this Court as well as in the District Court.
32. Orders set aside.