Lakshmikanta Jha, C.J:— This appeal by defendant no. 1 arises out of a suit for partition. The plaintiffs, who are the grand-sons of one Nath Sahay Singh, allege that they own 7 dams and odd share in tauzi no. 2542 in village Kendua, which has been included in Register D in the share, recorded in the names of (1) defendant no. 1, (2) defendants nos. 2 to 5(a), and (3) defendants nos. 21 to 23(a) and 31 to 34, and their prayer is that a separate takhta of their share be allotted to them after partition. They have also claimed Rs. 449-12-0 as compensation for the period antecedent to the suit and future mesne profit's till possession it delivered to them of their takhta in case they are found to be out of possession.

The trial court has decreed the claim in favour of the plaintiffs against defendant no. 1 and defendants nos. 2 to 5(a) with costs, but dismissed it against other defendants. A preliminary decree for partition has accordingly been made.

The plaintiff's grandfather, Nath Sahay, owned 7 dams 3 kauris 12 bauris and odd share in tauzi no. 2542 in mauza Kendua and he was in possession of his share as co-sharer malik till he gave his share inijara on the 5th of January, 1904, to two persons, Lal Mohammad and Mullick Turab Ali. This ijara was redeemed in 1920. One Mahendra was also a co-sharer malik of this tauzi and his interest was 7 dams and odd, equal to the share of Nath Sahay, and one Janki Prasad Singh also held 5 dams and odd share in this tauzi as a co-sharer malik. Thus the total interest of Nath Sahay, Mahendra and Janki was 1 anna and odd in this tauzi. There were other co-sharer landlords also, but we are not concerned with them in this suit. On the 3rd of September, 1906, the 1 anna and odd share, representing the total interest of these three persons, was sold for arrears of cess and auction, purchased, by one Jugeshwar Dayal, Mukhtar, at a certificate sale, and he got his name mutated in register D in respect of the share purchased by him. According to the trial court, he did not get possession over this property, and this finding has not been challenged before us. Subsequently, Jugeshwar sold 6 dams and odd share, which he described as the interest of Mahendra, and the entire 5 dams and odd share of Janki (total 11 dams and odd), to Gokaran Prasad Singh, who is defendant no. 1 in the present action. He also sold the remainder, describing it as the entire 7 dams and odd share of Nath Sahay and the remaining 1 dam and odd share of Mahendra, to one Ramsaran Singh, ancestor of defendants 2 to 5(a). But Mahendra, notwithstanding the certificate sale, sold his entire 7 dams and odd interest to one Masoom Ali in 1909, who, in his turn, sold this share to one Waris Ali, ancestor of defendants nos. 31 to 34, and in 1913 Waris Ali sold one fourth of the interest purchased by him from Masoom Ali to one Manzur Ali, predecesor-in-interest of defendants nos. 21 to 23(a).

On the 30th of August, 1918, Waris Ali and Manzur Ali brought Title Suit no. 290 of 1918 in the court of the Munsif 3rd Court, Gaya, for a declaration that the sale held in execution of the certificate is illegal and void and also for recovery of possession if they were held by the court to be out of possession. This suit was dismissed by the trial court, but the judgment of the trial court was reversed by the appellate court and it was held that the certificate sale was illegal, void and inoperative. The judgment of the appellate court was also upheld by the High Court in Second Appeal no. 215 of 1920 [Ext. A1(1)]. Now the successors-in-interest of Waris Ali and Masoom Ali are in possession of 7 dams and odd share in accordance with the abovementioned transfers.

In 1928 the plaintiffs brought Title Suit no. 97 of 1928 in the court of the Munsif, 3rd Court, Gaya, impleading, among others, the heirs of Ramsaran Singh as defendants nos. 1 to 4, who are represented by defendants nos. 2 to 5(a), Gokaran Singh as defendant no. 5, who is defendant no. 1, the heirs of Manzur Ali as defendants nos. 20 to 22, who are represented by defendants nos. 21 to 23(a) and the heirs of Waris Ali as defendants nos. 31 to 34, who are represented by defendants nos. 31 to 34. This suit of the plaintiffs was for a declaration of their title and recovery of possession with mesne profits in respect of Nath Sahay's 7 dams and odd share. It may be stated that the plaintiffs claimed 6 dams and odd share from Gokaran (defendant no. 1), 16 kauris and odd share from the heirs of Ramsaran, and the remaining; 2 kauris and odd interest from the heirs of Waris Ali and Manzur Ali. The trial court decreed the suit for possession with mesne profits against Gokaran in respect of 6 dams and odd share, but in respect of the remaining share the plaintiffs' title only was declared. There were two appeals, one by the present plaintiffs and the other by Gokaran. Gokaran's appeal was dismissed, but the plaintiffs' appeal was allowed and they got a decree for joint possession with mesne profits for the entire 7 dams and odd share of Nath Sahay. The plaintiffs have accordingly instituted the present suit by impleading all the co-sharer maliks of the tauzi and have sought partition and allotment of separate takhta of 7 dams and odd share belonging to Nath Sahay. They have also claimed, as already stated, mesne profits on the ground that since the year 1343 Fasli defendants nos. 1 to 5(a) in collusion with defendants nos. 21 to 23(a) and 31 to 34 realised the plaintiffs' share of the produce rent from the tenants but did not give them their hakmi share of the produce rent in spite of repeated demand, and also prevented the plaintiffs from cultivating their proportionate share of the bakasht land.

Several sets of written statements have been filed, but the suit was contested only by defendants nos. 1, 21 to 23(a) and 31 to 34. As the appeal is only by defendant no. 1, we are not concerned with the defence of other defendants. The defence of defendant no. 1 is inter alia, that he is in possession as a cosharer malik of 3 annas and odd share in the tauzi in his own right and that he is not in possession of any share belonging to the plaintiffs. Accordingly, his case is that the plaintiffs are not entitled to any takhka being carved out from the share which stands recorded in Register D in his name, nor to any compention or mense profits from him. The trial court has as Already stated held that the plaintiffs are entitled to 6 dams and odd from out of the 3 annas and odd share in the possession of the defendant no. 1 which stands recorded in his name in Register D in excess of his legitimate share. It has accordingly ordered recovery of possession of this 6 dams and odd share from, defendant no. 1, with mesne profits. There is also a decree against defendants nos. 2 to 5(a) in respect of 16 kauris and odd share, with mesne profits, but the trial court has dismissed the plaintiffs' claim in respect of the remaining shares against defendants nos. 21 to 23(a) and 31 to 34. There is no appeal by defendants nos. 2 to 5(a). Therefore, the decree in respect of 16 kauris has become final. There was, however, a cross objection in respect of 2 kauris and odd claimed from defendants nos. 21 to 23(a) and 31 to 34, but the cross objection has not been pressed. The present appeal is only by defendant no. 1 and is directed against the decree for recovery of 6 dams and odd share from out of the 3 annas interest in the tauzi which stands recorded in Register D in his name.

The following points emerge for our consideration:—

(1) Whether the plaintiffs are entitled to claim 6 dams and odd share from the defendant no. 1?

(2) Whether the plaintiffs are entitled to claim any compensation or mesne profits from defendant no. 1?

(3) Whether the plaintiffs' claim is barred by limitation?

All the three points for decision in the present appeal are inter-connected and may, therefore, be conveniently taken up together. It may be recalled that Nath Sahay's 7 dams and odd share in the tauzi was in the possession of the ijaradars as usufructuary mortgagees from 1904 to 1920. The certificate sale took place on the 3rd of September, 1906, while the usufructuary mortgagees of Nath Sahay were in possession. The certificate sale, however, was held to be illegal, void and inoperative in Title Suit no. 290 of 1918. Later on the plaintiffs brought Title Suit no. 97 of 1928 for possession and mesne profits against the present defendants or those who represented their interest. This suit was also decreed, and the writ of delivery of possession (Ext. 3) and the: order sheet (Ext. 4) show that the plaintiffs recovered possession over 7 dams and odd share now claimed by the plaintiffs in the present suit. The subject matter of dispute in the two suits is identically the same, and the plea of the appellants is also identically the same. In spite of the plea of the appellants it was held in the previous suit that the plaintiffs were entitled to 6 dams and odd share which stands recorded in the name of the appellant, and the plaintiffs were given a decree for mesne profits against Gokaran Prasad Singh in respect of this share. P.W 1 has stated in his evidence that delivery of possession was given to the plaintiffs in his presence. D.W 1 has, however, stated that delivery of possession was not taken by the plaintiffs but he had to admit that the plaintiffs realized mesne profits but not from him. He has further admitted that there was a proceeding against him under section 107 of the Code of Criminal Procedure regarding the disputed shares at the instance of the plaintiffs, and he gave an undertaking not to disturb the plaintiffs in their possession. Therefore, in my opinion, on the evidence in the case, there is no manner of doubt that the plaintiffs recovered joint possession in January, 1934. The trial court has held that the evidence of P.W 1 that mesne profits were realized from the appellant and Kabir Mian is not worthy of credence. In my opinion, in view of Gokaran's own admission that mesne profits were realised by the plaintiffs (but not from him) there is no reason why the evidence of P.W 1 on this point also should not be accepted. The plaintiffs have proved by documentary evidence (Exts. 3 and 4) that they got joint possession in January, 1934. Therefore, it is not necessary to decide whether the plaintiffs or their mortgagees were dispossessed prior to 1928 when the Title Suit no. 97 of 1928 was instituted, or whether dispossession of the mortgagees can, in the eye of law, operate as dispossession of the mortgagors. As the present suit was instituted on the 8th of September, 1934, within twelve years of the suit, the question of limitation, in my opinion, does not arise.

The next question for consideration is whether the appellant can resist the plaintiffs' suit for possession. It appears that 3 annas 7 dams and odd share has been recorded in register D in the name of the appellant under serial no. 99. Admittedly, the appellant purchased from Jugeshwar 6 dams and odd share of Mahendra and Ramsaran purchased 7 dams and odd share of Nath Sahay and 1 dam and odd share of Mahendra from him. It was held by the appellate court, as well as by the High Court, in Title Suit no. 290 of 1918 that the certificate sale was illegal and inoperative. Therefore the purchasers from Jugeshwar acquired no title and they were in possession of the properties purchased by them as trespassers. It was held in Title Suit no. 97 of 1928 that 6 dams and odd share now claimed by the plaintiffs in the present suit from the appellant was in his possession and the plaintiffs were held entitled to recover possession from him. The trial court has held that the 6 dams and odd share claimed by the plaintiffs from the appellant is in his possession and is included in 3 annas and odd share recorded in his name in Register D. I see no reason to differ from its view. Moreover, it is not open to the appellant to resist the claim of the plaintiffs for recovery of possession because the matter is res judicata. Identically the same point was raised in Title Suit no. 97 of 1928 before the learned Munsif, and he gave his decision in favour of the plaintiffs. In my opinion, the learned Munsif who decided the former suit was competent to decide the present suit in so far as it relates to the particular relief as to the title of the plaintiffs. Though the present suit has been valued at Rs. 11,000 for the purpose of jurisdiction and partition (being the value of the entire 16 annas of the tauzi under partition in 1944) the relief as to the declaration of title and recovery of possession as against the appellant must be deemed to have the same value in 1944 as it had for the purpose of jurisdiction before the learned Munsif in 1928 in Title Suit no. 97 of 1928, 11A higher value has been put, due partly to the rise in the price of the property and partly because the entire 16 annas share has been valued for the purpose of partition. But the matter directly and substantially in issue in both the suits is identically the same. Therefore, in my opinion, the judgment of the appellate court, which finally heard and decided the matter, in the former suit (Title Suit no. 97 of 1928) operates as res judicata in the present suit. Mitter, J. in Gopi Nath Choubey v. Bhugwat Pershad has observed that the words “in a court of jurisdiction competent to try such subsequent suit” must refer to the jurisdiction of the court at the time when the first suit was brought, that is to say, if the court which tried the first suit was competent to try the subsequent suit if then brought, the decision of such court would be conclusive, although on a subsequent date. By a rise in the value of such property or from any other cause the said court ceased to be the proper court, so far as pecuniary jurisdiction is concerned, to take, cognizance of a suit relating to that property. The principle enunciated in Gopi Nath Choubey's case, has been followed in the case of Sarupa v. Khem Lal, Lalmohan Dhupi v. Ramlakshmi Dasee(3) and Debendra Kumar Dutta Bhaumik v. Pramada Kanta Lahiry Chaudhuri(4). It has been held in the case of Drupad Chandra Naskar v. Bindhumoyi Dasi(5) that if a particular relief claimed in the subsequent suit was adjudicated in the previous suit, the previous court having jurisdiction to try, that relief would be barred in the subsequent suit. The same view has been reiterated in the case of Priyanath Chakravarty v. Kalicharan Chakravarty, and it has been held that where a decision has been given by a competent court in a previous suit, regarding part of the claim in the subsequent suit, and where both the suits are between the same parties and the causes of action relating to part of the claim are the same, that much part of the claim should be excluded from the subsequent suit, being barred by the principle of res judicata.

So far as the plaintiffs claim, for compensation is concerned, I am clearly of the opinion that Article 120 of the Limitation Act governs the present case and that there is no bar of limitation and they are entitled to the relief. See The Midnapur Zemindary Co., Ltd. v. Naresh Narayan Roy, Yerukola alias Penta Jogulu v. Yerukola alias Penta Tatayya, Mahomedally Tyebally v. Safiabai. It may be stated that the decision of the Subordinate Judge on this point was not seriously challenged.

The appeal is, therefore, dismissed with costs.

Reuben, J.:— I agree.

The appeal should, fail on the merits and, also, I think on the ground of res judicata. I would base the latter conclusion on general principles rather than on section 11 of the Code of Civil Procedure. Section 11 enacts that no court shall try any suit or 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 parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The test prescribed by this section is that the court which decided the earlier suit must have been competent to try the subsequent suit. In reliance on certain observations of Lord Davey in Gokul Mandar v. Pudmanund Singh section 13 (now section 11) of the Civil Procedure Code was construed strictly by a Division Bench of the Calcutta High Court in Shibo Raut v. Baban Raut, where a portion of the property forming the subject of the later suit had been the subject of an earlier suit between the same parties in which earlier suit the title to the property had been adjudicated between them. The question whether the earlier decision was binding as regards the subject-matter of the earlier suit was answered in the negative by their Lordships, who distinguished a previous decision of the same Court reported in Bhugwanbutti Chowdhrani v. A.H Forbes decided on the basis that the plaintiff cannot be allowed to evade the provisions of section 13 (now section 11) of the Code of Civil Procedure by joining in one suit several causes of action. The same view of section 11 as in the case of Shibo Raut was taken by a Division Bench of the Lahore High Court in Fazal Hussain v. Jiwan Shah, again in reliance on the observations of Lord Davey. A situation on a far with that in the case of Shibo Raut arose in Drupad Chandra Naskar v. Bindumoyi Dasi. Apparently, the attention of their Lordships was not drawn to the earlier decision and they gave a contrary answer to the question, observing without giving any express reason:—

“We think that as to the properties which measure one and half bighas of land of schedule kha the decision in the previous suit operated as res judicata and the plaintiff cannot succeed so far as this portion of the land is concerned.”

This decision was followed in Priyanath Chakravarty v. Kalicharan Chakravarty. That was a case where different causes of action were combined in the subsequent suit as in the case of Bhugwanbutti Chowdhrani, and the decision in the case of Shibo Raut was distinguished by their Lordships.

I do not think that, in the present case, it is necessary to rely upon section 11 of the Code of Civil Procedure for the purposes of res judicata. That section prescribes certain conditions in which the matter directly and substantially in issue in an earlier suit and heard and finally decided therein may not be tried in a subsequent suit. There is nothing in that section which takes away from the final decree in the earlier suit its finality as between the parties and has the effect of setting it aside. The decree in that suit remains binding, between the parties so far as the subject-matter of that particular suit is concerned, although the issues on which that result was arrived at may, for the purposes of the later suit, be open to trial. In other words, the cause of action has passed into a decree and cannot be reagitated. Unless this was so, there would be no end to litigation and matters decided in suits before Munsifs would be reopened by inclusion in suits of higher valuation. The rule of res judicata which forbids the reopening of matters once decided is an embodiment of the well known maxims “Nemo debt his veari pro eadem causa” and “Interest reipublicae ut sit finis litium,” and the memorable words of Sir Lawrence Jenkins in Sheo Parsan Singh v. Ramnandan Prasad Singh set out the manner in which the question ought to be approached:—

“…………in view of the arguments addressed to them, their Lordships desire to emphasis that the rule of res judicata, while founded on ancient precedent, “is dictated by a wisdom which is for all time.”

“‘It has been well said’ declared Lord Coke, interest reipublicae ut sit finis litium, otherwise great oppression might be done under colour and pretence of law.”—(6 Coke 9a).

Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: ‘If a person though defeated at law sue again he should be answered, you were defeated formerly. This called the plea of former judgment’ [See the Mitakshara (Vyavahana) Bk. II, Ch. I, edited by, J.R Gharpure, P. 14, and the Mayuka, Ch. I., sec. 1, p. 11, of Mandlik's edition].

And so the application of the rule by the Courts in India should be, influenced by no technical considerations, of form, but by matter of substance within the limits allowed by law.

Lord Darling considered it worth while to repeat these words in Kalipada De v. Dwyjapada Das. I may also refer to Ramachandra Rao v. Ramachandra Rao in which case Lord Buckmaster observed that

“The principle which prevents the same case: being twice litigated is of general application and is not limited by the specific words of the Code in this respect.”

The observation of Lord Davey in Gokul Mandar's case must be understood in the light of the facts of that case. There, it was argued before the Judicial Committee in reliance on section 13 (now section 11) of the Code of Civil Procedure that a Settlement Officer being empowered to decide questions of status in the course of settlement proceedings under the Bengal Tenancy Act, his decision in such a proceeding was a bar to a civil suit. It was in answer to this argument that his Lordship observed that—

“it is not the province of a judge to disregard or go outside the letter of the enactment according to its true construction.”

As is clear from the subsequent decisions of the Judicial Committee to which I have referred, the dictum of his Lordship cannot be taken to mean that section 13 (now section 11) had the effect of abrogating the general principles of res judicata. As other decisions of the Judicial Committee supporting my conclusion, I may mention Hook v. Administrator General of Bengal, and Ram Kirpal Shukul v. Mussumat Rup Kuari.

The conclusion to which I have come is also supported by the learned and illuminating discourse of Tek Chand, J. on the doctrine of res judicata in Mst. Lachmi v. Mst. Bhulli. His Lordship cites a relevant passage from an ancient Hindu Law giver Harita which I reproduce below:—

“The plaintiff should be non-suited if the defendant, avers: ‘In this very affair, there was litigation between him and myself previously,’ and it is found that the plaintiff had lost his case,”

In my opinion, this passage applies to the present case. His Lordship, having indicated that the doctrine is of universal application and is to be found in various systems of jurisprudence, relates that in some of the ancient systems the operation of the rule was confined to cases in which the plaintiff put forward his claim to “the same subject-matter with regard to which his request had already been determined by a competent Court and had passed into judgment” — this is what is described as the plea of “estoppel by judgment” or “estoppel by record”. This rule of estoppel, he points out, was first enacted in British India by section 16 of the Bengal Regulation III of 1793 and again in section 2 of the Civil Procedure Code of 1859. In other systems of law, and notably in England, his Lordship continues, the doctrine has developed and expanded, and the bar is applied in a subsequent action not only to cases where claim is laid to the same property but also to the same matter (or issue) as was directly and substantially in dispute in the former litigation; in other words, it is the identity of the issue and not the identity of the subject-matter which attracts the operation of the rule. This is what is described as “estoppel by verdict”. According to his Lordship, this extension of the principle was given effect to by section 13 of the Code of 1877, which was substantially on the same lines as section 11 of the present Code. I do not think that the effect of the extension of the principle was to do away with “estoppel by record” and it is this estoppel which I would apply in the present case.

That there was no intention to abrogate “estoppel by record” would also appear from section 13 of the Code relating to foreign judgments. The section provides that a foreign judgment shall be conclusive as to “any matter thereby directly adjudicated upon” between the same parties or between parties under whom they or any of them claim, litigating under the same title, subject to certain conditions, one of which is that the adjudication must be by a Court of competent jurisdiction. If the decision of a foreign Court of competent jurisdiction is given this effect in India, it is not possible that the Code intended to give a lesser effect to the decision of a competent Civil Court of this country. I may also mention Order II, rule 2 of the Civil Procedure Code which shows the anxiety of the legislature to avoid repeated litigation of the same matter between the same parties.

For the reasons which I have set out, I consider that estoppel by record still exists and, with respect, I would suggest that the decision in the case of Shiboo Raut was to this extent incorrect.

Finally, I should like to draw attention to a mistake in the judgment of the learned Subordinate Judge. Having, on a consideration of the evidence, come to the conclusion that the claim against defendants nos. 2 to 5(a) is proved (page 51, lines 41-45 of the paper-books), he goes on in the same paragraph to say that the claim is not proved against them (page 51, lines 58-61). The latter statement is a mistake due to inadvertence and the decree has been rightly passed against these defendants.

Appeal dismissed.

G.N.P