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Sitaram Sakharam Mangle v. Laxman Vishnu Ketkar
Structured Summary of the Provided Opinion
Factual and Procedural Background
The plaintiff sued to recover the value of Mamul (inam) dues claimed to be due from the defendant for the years 1915–1916 and 1916–1917. The plaint (as described in the opinion) alleges that the plaintiff and certain co-sharers (Bhanbands) acquired a moiety of the village of Kasar Kolwan from the original Inamdars, that the plaintiff held a four-annas share in the Inam, and that the defendant was managing khot interests (eight annas for the first year, four annas for the second year) and so was liable to pay the Mamul rent which had historically been paid in Mamul.
The defendant pleaded that the plaintiff, being an Inamdar of the royal share, was entitled only to recover the survey (assessment) share because a survey settlement had been introduced into the tillage of the village (the survey settlement is said to have been introduced in 1885–1886).
At first instance the Trial Court found (1) that the defendant's contention was barred by res judicata by a previous decision (the opinion records a prior suit number variously as Suit No. 160 of 1892 and Suit No. 100 of 1892 in different passages); (2) that the introduction of the survey settlement did not affect the plaintiff's right to receive Mamul dues and that the survey had been introduced without the Inamdar's consent; and (3) that the plaintiff was an Inamdar of the soil. The Trial Court decreed the plaintiff's suit. The District Court on appeal confirmed the Trial Court's decision.
The matter proceeded to a Second Appeal before a three-judge Bench (Macleod, C.J., Shah, J., and Fawcett, J.). The Full Bench gave notice to Government and heard argument; the Bench analysed issues of res judicata, the construction of section 216 of the Bombay Land Revenue Code, and factual material as to the nature of the Inam grant and subsequent settlements.
Legal Issues Presented
- Whether the question of the plaintiff's entitlement to recover Mamul dues (as opposed to survey assessment) was barred by res judicata by reason of the earlier litigation (the 1892 proceeding referred to in the opinion).
- How section 216 of the Bombay Land Revenue Code is to be construed in the circumstances of a Sharakati village (a village divided between Government and Inamdar but not by metes and bounds) — specifically, whether Government could introduce a survey settlement into such a village and thereby limit the Inamdar to his share of assessment rather than Mamul dues.
- Whether, as a matter of fact on the record, the present Inamdars are grantees of the soil (entitled to a definite area) or merely grantees of a share of revenue (and the consequences of that status for the right to Mamul dues).
Arguments of the Parties
Plaintiff's (Respondent in the appeal) Arguments
- The plaintiff maintained he was not bound by the survey rates and that the issue of entitlement to Mamul dues had already been decided in his favour in an earlier suit (the 1892 proceeding in which the defendant was a party).
- The plaintiff relied on prior judgments (as recorded in the earlier litigation) to support entitlement to Mamul rates despite the introduction of survey settlement.
Defendant / Appellant's Arguments (including submissions of Mr. Desai)
- Mr. Desai argued that the point decided in the 1892 suit could not operate as res judicata because the earlier decision was based upon a misapprehension as to what was decided in an even earlier suit, and therefore the prior decision was not a correct adjudication on the merits of the legal question now raised.
- He contended that a question of statutory construction (specifically construction of section 216) could not be res judicata; the causes of action in the two suits were different and related to different periods, and the doctrine of res judicata should not apply to recurring liabilities or to disputes where the factual basis had changed (arguments included that the revision survey settlement introduced later might alter the position).
- The defendant also pleaded that the survey settlement had been lawfully introduced and consequently the plaintiff was entitled only to recover according to survey rates and not the Mamul rates.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gangadhar v. Morthat | Earlier Full Court construction of section 216 of the Bombay Land Revenue Code (deciding, in the context, that certain Inamdars were limited to share of assessment and affected the right to Mamul dues). | The Bench treated the decision as the prior authoritative construction of s.216 relied upon in the 1892 litigation. Shah, J. and Fawcett, J. regarded that decision as binding or at least not shown to be wrong; Macleod, C.J. expressed doubts about its correctness but recognized its continuing force and that it had not been legislatively altered. |
| Chamanlal v. Bapubhai | The dictum (Parsons, J.) that a question of law can never be res judicata (as articulated without qualification in that case). | The judges in this Bench qualified or limited that dictum. Macleod, C.J. and Shah, J. treated the statement as dependent on the facts of that case and not a universal rule; Shah, J. rejected the categorical application of the dictum to the present case. |
| Chhaganlal v. Bai Harkha | Authority cited as contrary to the broad proposition that questions of law can never be res judicata. | Shah, J. cited it as supporting the view that legal questions can, in appropriate circumstances, be res judicata under section 11 (CPC). |
| Rajwant Prasad Pande v. Ram Ratan Gir (Privy Council) | Observation that challenging the method of exercise of jurisdiction does not justify denying the existence of the jurisdiction; general rule about finality of adjudication between same parties on same question. | Fawcett, J. relied on these observations to caution against permitting relitigation of the same cause of action or the same question between the same parties; used to show limits on re-opening adjudicated matters. |
| Badar Bee v. Habib Merican Noordin (Privy Council) | Principle that a Court cannot review a previous decision not open to appeal between the same parties; errors should have been corrected by appeal in due time. | Fawcett, J. cited it to support reluctance to allow parties to re-open a question already decided between them. |
| Aghore Nath Muherjee v. Kamini Debi | Judgment (Mookerjee, J.) that where causes of action are distinct, estoppel by prior decision should be restricted to facts or mixed questions of fact and law, so as to avoid irrevocably binding parties to an erroneous proposition of law. | Fawcett, J. discussed this case when weighing whether a prior legal decision should be binding as res judicata; he cited it as supporting a more limited application of estoppel by judgment in some situations. |
| Sree Rajah Bommadevara Venkata Narasima Naidu v. Andavolu Venkataratnam | Reasons (Napier, J.) that where a decision on a point of law settles rights arising directly between parties, such a decision is res judicata. | Fawcett, J. cited Napier, J.'s reasoning as persuasive support for the position that legal questions deciding the rights of parties may operate as res judicata; he acknowledged judicial disagreement on this point and preferred to leave it open. |
| Hardcastle on Statutory Law (textbook) | General proposition that where statutory language is explicit, consequences are for Parliament to correct rather than for courts to re-write — cited in relation to the limits of judicial revision of statutory construction. | The Bench (Fawcett, J.) cited the passage to support the view that where statutory language is clear the proper remedy for perceived error is legislative amendment rather than judicial re-construction that departs from text. |
Court's Reasoning and Analysis
The Full Bench undertook a two-fold analysis: (A) the doctrine of res judicata as applied to the earlier 1892 litigation, and (B) the statutory construction of section 216 of the Bombay Land Revenue Code as applied to a Sharakati village where a survey settlement had been introduced.
A. Res judicata
- The Trial Judge and the District Court had held the question of the plaintiff's entitlement to Mamul dues was res judicata by reason of the earlier suit (referred to in the opinion as the 1892 proceeding). The Full Bench examined the judgments and records of that earlier litigation.
- Macleod, C.J. reviewed the earlier proceedings and observed that, while the Trial Judge in the earlier suit may have been under an erroneous impression about what was decided, the appellate judgment in the earlier litigation referred to the decision in Gangadhar v. Morthat and showed that the question had been decided on the merits in appeal. He discussed the conceptual distinction between a decision on an abstract question of law (statutory construction) and a decision on a concrete issue of title or fact, concluding that although a Full Bench can form its own view of a pure point of law, the principle of stare decisis remains relevant and earlier authorities may be departed from only for cogent reasons. He expressed doubts about the correctness of the prior construction of section 216 but did not feel bound to follow stare decisis if the question arose anew between different parties — while also acknowledging practical considerations (payments made, long-standing adjustments).
- Shah, J. took a narrower textual approach to section 11 of the Code of Civil Procedure (res judicata). He held that the plea of res judicata does not depend on the correctness of the reasons given previously: a matter directly and substantially in issue and finally decided between the same parties is binding, whether the decision was right or wrong. He rejected the broad proposition that questions of law can never be res judicata (as stated in Chamanlal v. Bapubhai) on the ground that such dicta must be read in context and the statutory language of section 11 makes no such distinction. Shah, J. concluded that the issue had been expressly raised and decided in the 1892 appeal and therefore was res judicata.
- Fawcett, J. agreed generally with dismissal of the appeal but expressed reservations about laying down absolutely that abstract questions of law can never be res judicata. He surveyed authorities on both sides, noted the difficulty and divergence of opinions, and preferred to leave the point open because the present case could be decided on other grounds.
B. Construction of section 216 (Bombay Land Revenue Code) and factual findings
- The courts examined documentary exhibits (extracts of Sanad, Barnishi extracts, Inam records) and settlement material. The Sanad itself was not produced, but Exhibit 41 (an extract) appeared to contain words construed by earlier courts as constituting a grant of soil; Exhibit 18 (Inam account extract for 1898–1899) recorded Government having a half share and a net Inam figure; Exhibit 16 showed that Inamdars were considered entitled to a half share of revenue. The Sanad, however, formally granted only one-third and there was no documentary trace of increase to one-half.
- The Bench noted that the village had been surveyed with Khalsa villages and was not excepted from Chapters VIII–X of the Code by section 216. The evidence and circumstances suggested that the present Inamdars had not asserted an entitlement to a definite area (soil) but appeared to be grantees of a share of the revenue.
- The Bench (particularly Shah, J., and Fawcett, J.) regarded Gangadhar v. Morthat as having decided the power of Government under section 216(b) to introduce survey settlement in cases like the present and that earlier decision had guided practical adjustments to rights over many years. Shah, J. concluded that the prior decision was not shown to be wrong and that it was not a fit case for departing from that authority; he emphasized that if Parliament disagrees with the judicial construction it can amend the statute.
- Macleod, C.J. expressed concern that requiring occupants (Khots) to pay both survey assessment to Government and additional Mamul dues to the Inamdar would be undesirable and noted that the Inamdars' consent to the settlement had not been obtained; both lower courts had held that such consent was required and had not been given.
Holding and Implications
HOLDING: The Full Bench dismissed the appeal; the appeal was dismissed with costs.
Implications and direct consequences:
- The Trial Court decree in favour of the plaintiff was affirmed by the District Court and the Full Bench dismissed the appeal — which means the lower courts' findings (including decree for plaintiff on the Mamul dues) stand as between the parties in this litigation as recorded in the opinion.
- On res judicata the Bench was not unanimous on doctrinal points: Shah, J. held the 1892 decision bound the parties under section 11 (CPC) and the matter was res judicata; Macleod, C.J. expressed that abstract questions of statutory construction raise issues about stare decisis and indicated he would not be bound in future disputes between different parties; Fawcett, J. preferred to leave open the question whether abstract legal questions can be res judicata. Thus the opinion does not establish a new, definitive rule resolving that doctrinal controversy — the Bench left aspects of the res judicata/stare decisis relationship open for future consideration.
- The Bench noted practical and policy considerations: that the language of section 216 has given rise to recurring litigation and that if the construction in Gangadhar v. Morthat is thought wrong the proper remedy is legislative amendment rather than judicial re-writing. The Court suggested that Government's attention might be drawn to the difficulty and need for clearer drafting of section 216.
- No binding broader change in law was declared by this Full Bench that would displace the earlier decision in Gangadhar v. Morthat; Shah and Fawcett were prepared to adhere to that decision in the present context, and Macleod declined to treat stare decisis as absolutely binding in future disputes between different parties.
Note: The summary above is strictly confined to the material and arguments as they are presented in the provided opinion. Where the opinion records differing numbers or references in the text (for example, the amount claimed is recorded at one place as Rs. 229-15-6 and elsewhere as Rs. 120-6-0, and the earlier suit number is variously referred to), this summary reports those points as they appear in the opinion without reconciling the inconsistencies.
Macleod, C.J:— The plaintiff filed this suit to recover Rs. 229-15-6 being the value of the Mamal Inam dues in kind as set forth is the plaint for the years 1915–1916 and 1916–1917. He alleged that he and some Bhanbands of his had come to acquire a moiety of the village of Kasar Kolwan from the original Inamdars who were entitled to rant in specie and kind from the body of Khots of the village, that plaintiff had a four-annas share in the Inam, that the defendant was managing Khot of eight annas for the first year mentioned and four annas for the second year and so was liable to pay the rent, which had consistency been paid from Mamul times.
2. The defendant pleaded that plaintiff was an Inamdar of the royal share of the revenue and was therefore only entitled to the survey assessment as the survey settlement had been introduced into the tillage.
3. It was found in the Trial Court—
(1) that the contention of the defendant that plaintiff could only recover survey assessment and not Mamul rent in kind or its money value was barred by res judicata by virtue of the decision in a previous Suit No. 160 of 1892;
(2) that the introduction of the survey settlement did not affect the plaintiff's right to get the Mamul dues and it was I introduced without the Inamdar's consent; and
(3) that plaintiff was Inamdar of the soil. Plaintiff's suit was accordingly decreed.
4. In appeal the decision of the Trial Court was confirmed. When the case came before my brother Fawcett and myself in Second appeal we thought it advisable that notice should be given to Government and that the appeal should be argued before three Judges. The suit village is one which is known as a Sharakati village, being divided between Government and the Inamdar, but not by metes and bounds. The survey settlement was introduced in 1885–1886 and it is the policy of Government that the total assessment should be divided between Government and the Inamdar. The assessment is collected by the Khots who are it the position of occupants. They pay that the assessment to Government, but the Inamdars have been hitherto exacting payment of the Mamul dues instead of taking their half, which results to their benefit. We have had the advantage hearing the Government Pleader froe whom we gathered that in such a ??? as this Government consider that the Inamdar is only entitled to his share of the assessment. The difficulty in ??? whether that is the correct view on the facts of this case arises from the ??? wording of section 216 of the Bombay Land Revenue Code.
5. The learned Trial Judge thought that the fate of the case mainly depended ??? whether the plaintiff was Inamdar of ??? soil or of only the share of the revenue.
6. The original Sanad is not produced ??? from the extract from the Barnishi of ??? Sanad (Exhibit 41) it would certainly appear to have contained words which have ??? construed by this Court as constituting grant of the soil.
7. Exhibit 18 is an extract from the ??? of Inam land situated at Kasar Kolwan the year 1898–1899. It is mentioned ??? Government has a half share. ??? deducting Judi, rate and assessment, ??? remaining net Inam was entered Rs. 82-12-11.
8. No report of the Inam Commissioners or any result of the Inam Settlement has been produced, but undoubtedly the village was surveyed with other Khalsa villages, as not being excepted from Chapters VIII to X of the Bombay Land Revenue Code by section 216, and Exhibit 16 shows that it was considered that the Inamdars were only entitled to a half share of the revenue. The Sanad only grants one-third and there is no trace of the increase to one-half.
9. Taking all these circumstances into consideration I should say that whatever may have been the nature of the original rani in Inam, the present Inamdars are grantees of only half the share of the revenue. Clearly they have never asserted their right to a definite area of the village and obviously a suit would not lie against Government for partition.
10. Apart altogether from the merits of the plaintiff's case it would be a most undesirable state of affairs that the occupant, in this case the body of Khots, after paying the survey assessment should have to pay an additional amount to the Inamdar of an undivided share of the village whether he may be considered a grantee of the soil ??? of the revenue only. If the consent of to Inamdar in a Sharakabi village is required before he can be bound by a ??? settlement, then without his consent ??? interests cannot be affected. Both Courts have held that the Inamdars' content in this village was required, and was tot obtained.
11. Both Courts have also held that the ??? whether the Inamdar is entitled to recover Mamul dues is res judicata, by ??? of the judgment in Suit No. 100 of 892 in which the Inamdars sued the ??? defendants for the Inam Mamul ??? on the ground that they were not round by the Jamabandi which had been ??? by Government without their consent, he defendants replied that they had learned the dues according to the Jamabandi id the plaintiffs ware not entitled to the amul rate. The Judge held that it was it necessary ??? determine whether the ??? was introduced with the consent the plaintiffs or not, ??? the plaintiffs are otherwise entitled to claim the amul rats as they had produced a ??? copy of a ??? in Suit No. 367, 1887 filed by them against the managing iota to recover the dues for 1885–1886, in doh they were granted the Mamul rate. We had to adjourn the hearing of the appeal in order to obtain a copy of the judgment in that suit and when it was obtained we found that it was admitted by the defendant's pleader that the survey was not introduced in the suit years. Therefore the question now in issue had not been decided in that suit and the Trial Judge in Suit No. 100 of 1892 was in error in thinking it had. An interesting question might then have arisen whether a decision given not on the merits but under an erroneous impression that the question in issue was res judicata, could itself be res judicata, but for the fact that there was produced before us the judgment in the appeal from the decision of the Trial Court in Suit No. 100 of 1892 from which it appeared that reference was made to the decision of this Court in Gangadhar v. Morbhat, (1) so that this question was decided on its merits in appeal though not in the Trial Court.
12. But it is contended that a question of law can never be res judicata and certainly in Chamanlal v. Bapubhai (2) Parsons, J., went so far as to lay down this rule without any qualification. But I think that the dictum can only be considered with reference to the facts of the casa than before the Court. There the question was whether the period prescribed by the Indian Limitation Act for a particular kind of relief was three years or twelve years, and it might be said that in cases of recurring liability such as for maintenance or rent, a Court would not be bound by a previous decision on a question of limitation, as the relief asked for would be for a different period and the Court would foe entitled to decide for itself whether the suit was barred by the Limitation Act or nob. The real test appears to me to be not whether the cause of action is the same, as obviously a part of the cause of action in recurring suits for maintenance or rent would be different, but whether the title on which the plaintiff sued in the labor suit had been substantially and directly in issue in the previous suit. Obviously if a plaintiff sued for rent on the basis of a particular lease and succeeded, the tenant would be barred from disputing the plaintiff's title in a later suit for rent for a different period.
13. But when there has been a decision on an abstract question of law, as in this case, namely, what was the proper construction to be placed on section 216 of the Bombay Land Revenue Code and not a concrete question each as the construction of a document entered into between the parties to a suit, it is no longer a question of res judicata as a Court, at any rate a Full Bench, can form its own opinion as to what the law is, but a question whether the principle of stare decisis should be invoked. If in 1892 the Court allowed the plaintiff to charge Mamul dues, considering itself bound by the decision in Gangadhar v. Morthat , I do not think that would her the defendant for good and all from disputing that decision, and asking the Court to hold that the law was not as it was decided to be in the previous suit.
14. Still it must be remembered that the defendants have been paying Mamul dues ever since the decision of Suit No. 100 of 1892, until they disputed the plaintiff's right in this suit. If the decision in Gangadhar v. Morthat had been in the meantime overruled I think the defendants would have been entitled to rely on that fact and I do think that sitting as a Full Bench we are not bound by that decision. Obviously in a similar suit brought by a different plaintiff we would not be bound by it.
15. This makes it all the more clear that the real question is whether we should apply the principle of stare decisis. We need not do so if in our opinion an absolutely wrong construction has been placed on particular words of the legislature, but generally speaking it is desirable that a previous construction should be adhered to, because it is always open to the Legislature if it thinks the Courts have put a wrong construction on the words of an Act to make its meaning clear by amendment.
16. For myself, I have considerable doubts whether section 216 of the Bombay Land Revenue Code was rightly construed in Gangadhar v. Morthat for, although the Legislature may have intended to preserve the Inamdar's right in villages of which a definite share had been alienated, it expressly excepted such villages and not only the unalienated share, from the provisions of the section Still, although Government must have been aware of the decision of this Court, the section has not been amended, so that it may very well be that Government at the time agreed with the construction placed upon it by this Court, although from what the Government Pleader has told us, they do not agree with it now I think, therefore, the attention of Government might be drawn to the fact that section 216 is giving constant ground for argument as to what its proper construction is, and that it stands daily in need of being re-drafted, and speaking for myself I do not think this Court would be bound to follow the principle of stare decisis if the question arose again between different parties.
17. In the course of the argument before us it was ascertained that there had been a revision settlement of this village and that one of the suit years was after that settlement, but I do not think that fact makes' any difference to the application of the above principle.
18. I think, therefore, the appeal should be dismissed with costs.
Shah, J.:— Two questions of law have been argued in this appeal: one relates to res judicata, and the other to the construction of section 216 of the Bombay Land Revenue Code. The plaintiff, who is a four-anna sharer in the Sharakati Inam village of Kasar Kolwan in the Devrukh Taluka sued to recover Rs. 120-6-0 being the amount due to him by the defendant as the Khot of the village at the Mamul rates for the years 1915–1916 and 1916–1917. The defendant pleaded that the survey settlement was introduced into the village in 1885–1886 and that the plaintiff was entitled to recover according to the survey rates and not the Mamul rates. The plaintiff's answer to the plea was that he was not bound by the survey rates, and that the question was decided in his favour in Suit No. 160 of 1892, between the parties to which the defendant was a party. The trial Court found that the question was res judicata and that on the merits the plaintiff was entitled to recover the Mamul rates. In appeal the District Court upheld this view on both the points and the same questions have been raise in the appeal before us.
19. It has been brought to our notice in the course of the argument that a ??? survey settlement has been introduce into the village since 1916–1917.
20. Mr. Desai for the appellant has argue that the point decided in the suit of 189 cannot operate as res judicata as the ??? was based upon a misapprehension as to what was decided in an earlier suit of 1387, and that the ??? of the construction of a statutory revision cannot be res judicata. It is also ??? that the causes of action in the two suits are different, that the periods in aspect of which the amounts are claimed re different, and that the doctrine of res judicata cannot apply to such a case.
21. It is clear, however, from the judgment in the suit of 1892 that the point that the plaintiff was entitled to recover the Mamul rates was expressly raised and decided: and it appears from the judgment of the appellate court in that case, which was not filed in the trial Court, but which was referred to with out objection from the other side in the course ??? the argument before us, that section 216 of the Bombay Land Revenue Code was ??? and that the plaintiff was held ??? to the Mamul rates in spite of the introduction of the survey settlement and spite of the provisions of section 216 it was not suggested then, and it is not suggested now, that the introduction of the ??? settlement was due to any application in writing from the Inamdars as ??? by that section.
22. It seems to me that the plea of res judicata is not dependent upon the merits of the reasons given for a particular conclusion. The conclusion, whether right wrong, is binding upon the parties, be binding character does not depend on the correctness of the reasons for the inclusion. If Mr. Dssai's argument were ??? it would strike at the very root ??? the doctrine of res judicata. The words ??? section 11 do not lend any support to ??? suggestion that if an issue is decided ??? any misapprehension of fact, it could ??? re agitated in a subsequent suit.
23. It was suggested that at least after the introduction of the revision survey settlement the parties cannot be said to be ??? under the same title as before, do not think, however, that the argent is sound. The introduction of the vision settlement does not affect in any ??? the titles of the parties. In the ??? suit they claim under the same ??? under which they claimed in the suit 1892. The provisions of the Land avenue Code do not lend any support to suggestion made by Mr. Desai.
24. It is equally clear that the fact of the causes of action being different and of the amount now claimed being in respect of a different period cannot affect the plea of res judicata, in this case. It is enough to invite the application of the doctrine that the matter in issue was directly and substantially in issue and was beard and finally decided in the previous suit.
25. It is urged that a question of law can never be res judicata. The observations in Chamanlal v. Bapubhai , are relied upon in support thereof. The earlier decision in the present case was based upon the construction of section 216; and it is contended that such a question is outside the scope of the rule of res judicata. In the first place I am not satisfied in this case that the question whether the plaintiff was entitled to recover the Mamul rates was a pure question of law. Assuming, however, that it was. I do not see how it could be treated as being outside the scope of section 11 of the cpc. The section does not make any such distinction between issues of law and other issues: it refers generally to questions directly and substantially in issue and heard and finally decided: and I do not think that the distinction could be accepted without restricting the scope of the section in a manner not justified by the words of the section. It would involve the reading of words in the section which are not there. The dictum in Chamanlal v. Bapubhai relied upon by Mr. Desai must be read in the light of the special facts of the case. The proposition, if taken without reference to the context, appears to me to have been boo broadly stated and not wholly justified by the words of section 13 of the Code of 1882 which was then in force. The decision in Chhaganlal v. Bai Harkha (3), appears to me to be opposed to Mr. Dasai's contention.
26. I am, therefore, satisfied that the question was decided between the parties in the suit of 1892, and that it is res judicata.
27. The other point relates to the merits of the case. It is common ground now that the Inamdars never applied to have the survey settlement or the revision survey settlement extended to this village. The question is whether in virtue of section 216 the Government have the power to introduce the survey settlement in a Sharakabi village, a definite share whereof is alienated, but not divided by metes and bounds, so as to invite the consequences referred to in section 217 of the Bombay Land Revenue Code. This question was decided so far back as 1893 in Gangadhar v. Morthat . Mr. Desai's argument in effect is that decision is wrong. Apart from that decision, the meaning of clause (b), which is applicable to this case, would not be free from difficulty and doubt. But the question was decided after consideration and I am not prepared to hold that the view taken in that case is wrong or that the words used in clause (b) read with reference to the context are not susceptible of the construction pub thereon. The rights of the present parties were adjusted in the earlier litigation on the strength of that decision: and it is not an unreasonable inference that the rights of many parties in similar villages must have been adjusted during all these years on the same basis. The Bombay Lind Revenue Code has received the attention of the Legislature on more occasions than one after that decision but the section has not been amended on this particular point. I do not think that any clear case for a reconsideration of the decision in Gangadhar v. Morbhat is made out. If that decision does not represent the true intention of the Legislature as suggested in the course of the argument before us, it is open to the Legislature to amend the section with a view to give effect to their true intention.
28. I, therefore, agree that the appeal should be dismissed with costs.
Fawcett, J.:— I agree that the appeal should be dismissed with costs, and concur generally in the judgment delivered by the learned Chief Justice, with one qualification. I am against laying down absolutely that the decision in the appeal arising out of Suit No. 100 of 1892 is not res judicata in the present suit. I feel some doubt whether a distinction can be rightly drawn between a decision on an abstract question of law, such as the proper construction to be put on section 216 of the Bombay Land Revenue Code, and on a concrete question, such as the construction of a particular document entered into between the parties to a suit. There can, I think, be no doubt that such a distinction cannot be drawn in cases where parties seek to litigate again the very same cause of action as has been decided against them in a prior suit. This is shown by the observations of their Lordships of the Privy Council in Rajwant Prasad Pande v. Ram Ratan Gir (4), in regard to an attempt of the kind just mentioned. They there say:—
“It is said that the Court below decided the objections wrongly and that the decree was erroneous, Their Lordships think it is very trite and very familiar that a challenge at the method of the exercise of the jurisdiction of a Court can never in law justify a denial of the existence at such jurisdiction.”
29. Also in Badar Bee v. Habib Merican Noordin (5), their Lordships say:—
“It is not competent for the Court, in the case of the same question arising between the same parties, to review a previous decision not open to appeal. It the decision was wrong, it ought, to have been appealed from in due time.”
30. But in Aghore Nath Muherjee v. Kamini Debi (6), Mookerjee, J. holds that, in cases: where the dispute relates to matters which have been already in controversy and formed the subject of consideration in the previous suit, but the causes of action in the two suits are distinct, the estoppel ought to be restricted to questions of fact or mixed questions of fact and law. The reason he gives is that, if it is extended to pure questions of law, a Court may find itself in the position that, so far as certain parties are concerned, it is irrevocably bound to adhere to a proposition of law erroneously laid down in a previous suit. At the same time he admits that the effect of this is to substitute in Section 11 of the Code the phrase “cause of action” ??? “the matter in issue” in so far as his view lays down that where the matter directly and substantially in issue is a matter ??? law, the decision may not be res juiicata if the cause of action in the subsequent suit is different from the cause of action ??? the former ??? and is not this view based on an argumentum at inconvenient. If so, as is said in Hardcastle on Statutory Law, 3rd Ed., p. 101:
“The argument…is only admissible in construction where the meaning of the statute is ??? Where the language is explicit, its consequence are for Parliament, and not for the Court consider.”
31. It seems to me that there is great force in the reasons given by Napier, J. in Sree Rajah Bommadevara Venkata Narasima, Naidu v. Andavolu Venkataratnam (7) for holding that, where a decision on a point of law, whether it be on the construction of a document or of a statute or on common law or on customary law, once settles a question that arises directly out of conflicting views as to the rights of the parties it is res judicata. Sadasiva Aiyar, J. on the other hand in the same case seems to approve of the distinction between a decision on an abstract question of law (say a question of limitation between the parties) and other decisions. It is a difficult question, on which there is considerable difference of judicial opinion and (though I am inclined to the view taken by my brother Shah on the point) I think it is best to leave it open, as this particular case can be decided on other rounds.
32. I do not think the meaning of section 216(b) of the Bombay Land Revenue Code is so clear as to preclude the application of the principle of stare decisis in the case and I agree with the learned thief Justice that the best course is to leave ??? to the Legislature to alter the language ??? in that section, if the construction put ??? it in Gangadhar v. Morthat is considered to be wrong or undesirable.
33. Appeal dismissed.
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