Mookerjee, A.C.J:— This is an appeal under Cl. 15, Letters Patent, from the judgment of Newbould, J., in a suit for an injunction to restrain the defendant from cutting trees on her holding.
2. The determination of the controversy between the parties defends upon the ascertainment of the precise status of the plaintiff and the defendant.
3. It appears that for the purpose of the decision of this question, reliance was placed upon the result of a previous litigation between the parties as conclusive of the matter in dispute. The primary Court held that the previous decision operated as res judicata; the Subordinate Judge adopted a contrary view which has not met with the approval of Newbould, J. We are now invited to decide which of these conflicting opinions is correct in law.
4. In the previous litigation, the plaintiff endeavoured to eject the defendant on the allegation that be himself was a raiyat and the defendant herself was an under-raiyat. The claim for ejectment failed, because the Court found it established that the defendant had a “protected interest” within the meaning of Section 160 of the Ben. Ten. Act. That conclusion was no doubt sufficient for the determination of the question then in issue, but really it cannot conclude the decision of the question of status involved in the present litigation. Indeed, in the previous suit the claim of the plaintiff could be successfully defeated merely on proof that the defendant had some higher status than that of an under-raiyat, and it would be immaterial to determine the precise status of the defendant, namely, whether he was a tenure-holder, a raiyat at fixed rates, an occupancy raiyat or a non-occupancy raiyat; consequently, we cannot hold that the question now directly and substantially in issue was directly and substantially in issue in the previous suit.
5. We find that the Courts below decided the question of res judicata merely with reference to the judgment in the previous suit. This was manifestly erroneous, for, as has been repeatedly pointed out, the question of res judicata must be decided with reference to the pleadings, the issues and the judgment. Reference may, in this connexion, be made to the decisions of the Judicial Committee in Kali Krishna v. Secretary of State (1), Jagatjit Singh v. Sarabjit Singh (2), Mirza Kurratulain v. Peara Saheb (3), and of this Court in Surjiram Marwari v. Barhamdeo Persad (4), Gurdeo Singh v. Chandrika Singh (5) and Raja Ranajit Sinha Bahadur v. Basanta Kumar Ghosh (6), which accord with the rule recognized in Robinson v. Duleep Singh (7), May, In re (8), and Houstoun v. Sligo (9).
6. The result is that the appeal is allowed, the decree of Newbould, J., set aside and the case remitted to the Court of first instance so that it may be retired on such evidence as may be adduced by both parties.
7. Costs will abide the result.
Fletcher, J.:— I agree.
V.B/R.K
8. Appeal allowed.