JUDGMENT

Sadasiva Aiyar, J. — The defendants 1 to 4 are the appellants. The suit was brought for the redemption of plaint lands alleged to have been mortgaged with possession by the plaintiff's predecessor in title in March 1875 for Rs. 20. The suit was brought on the 4th December 1913.

In a previous suit O. S. No. 211 of 1908, the present plaintiff sued the same defendants 1 to 4 in ejectment on the allegation that the defendants trespassed upon the land sometime in 1900. The defendants contended that the plaintiff's predecessor in title and the plaintiff were never owners and they set up title in themselves as usufructuary mortgagees from a third person whom they set up as owner. The District Munsif found in that suit that the mortgagor of the defendants had only othi right in the property under the plaintiff's predecessor in title and though the defendants' case that their mortgagor was the owner was false, they could resist the plaintiff's claim to eject them as trespassers as they were entitled to be paid what was due to their mortgagor (as mortgagee) before possession could be given to the plaintiff in redemption. (The plaintiffs' case in that suit was that though there was a mortgage for Rs. 20 in favour of the defendants' mortgagor, that mortgage had been redeemed long ago by the plaintiffs' predecessor in title. That alleged redemption was found against in that suit. Against the decree of the District Munsif dismissing that suit on those two findings namely (1) that the plaintiff was the owner of the land bat he was not entitled to possession, as the lands were outstanding on mortgage and the suit was not brought for redemption of the mortgage and (2) that the defendants were not the mortgagees from an owner but could only claim to be paid the original mortgage amount due to their mortgagor before parting with possession, there were two appeals 898 and 925 of 1911 filed in the Subordinate Judge's Court of Ramnad by the plaintiff and the defendants respectively, the plaintiff contending in his appeal that the first conclusion of the Munsif that the plaintiff was bound to bring a suit for redemption, because the original mortgage had not been yet redeemed was erroneous, and the defendants contending in their cross-appeal that the finding that their mortgagor was not the owner but only was himself a mortgagee under the plaintiff's predecessor in title and that therefore the defendants were liable to be redeemed was erroneous. The Subordinate Judge by his judgment, Ex. G, paragraphs 7 and 9 upheld both the findings of the District Munsif and dismissed both the appeals.

It was under these circumstances that the present suit was brought to redeem the original othi made by the plaintiff's predecessor in title to the defendants' mortgagor, the defendants mortgagor having mortgaged to the defendants for more than the original mortgage amount of Rs. 20 and hence having practically assigned his original mortgage right to the defendants for far more than its value.

The Lower Appellate Court considered that the defendants having appealed in the former suit to establish that they were Hot liable to be redeemed and that the plaintiff had no right to redeem and having failed in that appeal, they were barred by res judicata from again setting up that the plaintiff was not entitled to redeem them. It therefore passed a decree for redemption on payment of the amount of Rs. 20 due under the original othi of 1875, that othi having been held as existing unredeemed in the former suit.

The contentions in the present second appeal are found in grounds 2 and 3 namely, “2. The Lower Appellate Court should have found that the decree in O. S. No. 211 of 1908 does not operate as res judicata against the 1st defendant.”

“3. The Lower Appellate Court ought to have found that the suit is barred by limitation by reason of adverse possession”.

As regards the 3rd ground, relating to adverse possession, a mortgagee cannot set up adverse possession and hence there is nothing in that ground. The learned vakil for the appellant set up that though there may not be limitation by adverse possession, there might be limitation under Art. 131 of the Limitation Act. But that article was not relied on in the Lower Court and that article could only apply if the mortgage to the defendants was made by the original mortgagee Irulappa Pillai purporting to act as owner and not as mere mortgagee. The document, Ex. 5 of 1898 in favour, of the defendants does not so purport and we are also not bound to allow a point to be argued not expressly raised in the memorandum of second appeal, unless the plaint in its own. allegations shows the suit to be barred by limitation which is not the case here.

The contention most strenously argued was the other question of res judicata. It was argued that though the defendant expressly appealed in the former suit to get rid of the finding of the District Munsif in that litigation, the finding namely that the defendants were only mortgagees and that the plaintiff could redeem them by paying up the original mrotgage amount, and though they failed in that appeal, they need not and even could not have appealed against the District Munsif's judgment which dismissed the suit, and therefore the decision against them was not res judicata. But their Lordships of the Privy Council in Soorjomoni Dayee v. Suddanund Mohapatter held that where the defendant filed an appeal against a finding notwithstanding the suit itself had been dismissed, that finding on appeal was res judicata in a second suit between him and the plaintiff. There is therefore nothing in this argument.

As regards the other argument based on Run Bahadur Singh v. Lucho Koer, Thakur Magundeo v. Thakur Mahadeo Singh and other Bombay and Allahabad cases following Thakkur Magundeo v. Thakkur Mahadeo Singh. I need only say that I considered the whole question anxiously in Ramakrishna Naidu v. Krishnasami Naidu and came to this conclusion that the Full Bench decision in Niamut Khan v. Phadu Buldia was wrongly dissented from in the subsequent Calcutta cases and that a statement of their Lordships of the Privy Council in Run Bahadur Singh v. Luchokoer was unduly stretched in those subsequent decisions and I followed Varathayyangar v. Krishnasami. In fact, the present case is almost exactly on all fours with Varathayyangar v. Krishnasami which has never been dissented from in this Court. I have had the advantage of reading the judgment to be pronounced by my learned brother in this case and I am glad that he supports the decision in Ramakrishna Naidu v. Krishnasami Naidu.

No decision of this Court subsequent to Ramakrishna Naidu v. Krishnaswami Naidu has been quoted before us dissenting therefrom.

The learned vakil for the appellant adopted the criticism of that judgment in Ramakrishna Naidu v. Krishnasami Naidu found in 37 M. L. J., (Journal) part 3 pp. 1 to 15. Having carefully considered those criticisms, I see no reason to change my view, especially as the learned reviewer after vainly trying to distinguish or explain Varathayyangar v. Krishnasami finally stated in despair that “it must be treated as had law”.

I therefore agree with my learned brother that the second appeal should be dismissed with costs. Time for redemption is extended to three months from this date.

Spencer, J.—The second appeal has been argued on a question of res judicata. The present plaintiff brought a prior suit against the present defendants Nos. 1 to 4 for possession of the northern half of Survey No. 851, which is the subject of the present suit. That suit was dismissed on the ground that the 1st defendant was holding the property as a usufructuary mortgagee and that the suit in ejectment could not be converted into one for redemption. There was an appeal and a cross-appeal, with the result that the first court's decree was confirmed. Now that the plaintiff has brought this suit for redemption, the 1st defendant wishes to deny the original othi mortgage under which he got into possession as sub-mortgagee from the mortgagee and to set up a case of absolute title. The Subordinate Judge has held that he cannot do this, and I have no doubt that the Subordinate Judge is right. Undoubtedly the matter of the mortgage was directly and substantially in issue (to use the words of Sect. 11 of the Code of Civil Procedure) in O. S. No. 210 of 1908 as the finding of the two courts that the mortgage was subsisting led to the dismissal of the plaintiff's suit. It is argued by the appellants' vakil that because the decree in that suit was in favour of the party against whom the finding was recorded, the matter has not been finally decided. It is true that in the former litigation there was no second appeal to the High Court but this was because the question as to the existence of a mortgage right was one purely of fact and consequently the parties had no right of second appeal. In every other sense the matter was finally decided. The decision of this issue was in favour of the defendants in that suit in so far that it had the effect of causing the plaintiff's suit to be dismissed, but it operates against their contentions in this suit in which the relief claimed by the plaintiff is different from what it was before. The rule of res judicata has been described by the Privy Council quoting the maxim interest republicae utsit finis litium and the commentary of Lord Coke thereupon in Sheoparson Singh v. Ram Nandan Prasad Singh as being “founded on ancient precedent and dictated by a wisdom which is for all time.” To allow the defendants to raise this question of mortgage or absolute title which has once been decided by two competent courts and have it decided all over again merely for the reason that it is not now to their advantage, that they should be treated as mortgagees would be to ignore every principle of finality and to treat the doctrine of res judicata as a dead letter. The appellants' vakil has quoted certain decisions of this and other High Courts which he considers to be in favour of his clients, and it will therefore be necessary to deal with them.

First there is the decision of the Privy Council in Run Bahadur Singh v. Lucho Koer which has been much quoted and not always quite understood. My learned brother in Ramakrishna Naidu v. Krishnasami has distinguished this case, and I agree with his observations. The Privy Council expressed ah opinion on the facts of that case that the judgment of a District Munsif in a suit to recover rent was not conclusive upon a point, viz., that of title which was only incidental and subsidiary to the main question upon which the suit was decided when the finding upon that issue did not form the basis of the Court's decree, and that the decision was not res judicata in a subsequent suit upon title in the Court of a Subordinate Judge. My learned brother rightly pointed out in his judgment that there is no condition in Sect. 11 of the Code of Civil Procedure that the decision of the particular issue should have been the basis of the decree. But the insertion of the finding in question in the decree or its omission therefrom as also its bearing on the general result of the suit, naturally form elements in the consideration of the question whether the matter has been directly and substantially in issue in the former suit. Thakur Magudeo v. Thakur Mahadeo Singh is one of the cases which purports to follow Run Bahadur Singh v. Lucho Koer. My learned brother and Napier, J., in Ramakrishna Naidu v. Krishnasami Naidu dissented from the view expressed therein by a Bench of the Calcutta High Court. If a landlord sues to eject a tenant and succeeds on the defendant's plea of occupancy right, and if his suit fails for want of a proper notice to quit, the finding on the former issue is res judicata in a. second suit instituted after due notice being given. So it was held in Mota Holiappa v. Vittal Gopal In Thakur Magundeo v. Thakur Mahadeo Singh this contrary view prevailed, but I prefer the Bombay view. With due respect I consider that Kelu Nambiar v. Chathu Nambiar goes too far in laying down that a decision on an issue in an appealable suit when the decree is in favour of the parties against whom that decision is given is not a final decision and in considering that Run Bahadur Singh v. Lucho Koer is an authority for this wide proposition. In Muthaya Shetti v. Kanthappa Shetti it was rightly pointed out by another Bench with reference explanation 2 to Sect. 11 of the Code of Civil Procedure that the test of res judicata does not depend on the right of appeal. In that case the second suit, as in the case before us, was one for redemption and the finding in the first suit whether there had been a mortgage or a sale was held to be res judicata between, the same parties or their representatives in interest. Mr. Justice Seshagiri Aiyar for convenience of consideration divided cases of res judicata into four classes. The fourth class consisted of cases in which the decision upon the issue is necessary for the decision of the suit but the party against whom it is given cannot appeal as the final decree is in his favour. Even so he held that the decision on the issue would be res judicata. The present case would fall in that class. Secretary of State v. Saminatha Kownden died by the appellants' pleader a case to which I was a party is not really an authority on the law of res judicata. The question we had to decide was whether a party who was not adversely affected by a decree could appeal against an adverse finding recorded in the judgment alone. We answered that question in the negative and a similar question was answered in the negative in Achanta Venkatasuryanarayana v. Yellapragadu Shiva Sankara Narayana by the learned Chief Justice and Seshagiri Aiyar, J. Upon the point whether the decision of a question as to the invalidity of an adoption would operate as res judicata there is no discussion of the law but a mere reference to Run Bahadur Singh v. Lucho Koer and Parbati Debi v. Mathura Nath Benerjee. Parbati Debi v. Mathura Nath Banerjee is another of the decisions of the Calcutta High Court upon the doctrine of “basis of the decree” which my learned brother declined in Ramakrishna Naidu v. Krishnasami Naidu to follow. In Anusuyabai v. Sakharam Pandurang it was rightly observed that an appeal would not lie against an unfavourable finding in a suit when the decree was in favour of the party appealing. The further observations in the same ruling as to there being no res judicata except when the party concerned had an opportunity of appealing are difficult to reconcile with those in Muthaya Shetti v. Kanthappa Shetti. In Ghela Ichharam v. Sankalchand Jetha there was a finding on an issue not necessary or material for the determination of the suit and it was held to lack the force of res judicata. This decision is not in point, as in the case before us the finding as to the mortgage being subsisting contributed materially to the dismissal of the former suit. The cases in Gurdeo Singh v. Chandrikah Singh and Kelu Nambiar v. Chathu Nambiar were concerned with the finality of adjudication between co-defendants, which stand on rather a different footing from adjudications between plaintiffs and defendants, whose interests are prima facie conflicting.

The Privy Council case in. Krishna Behari Roy v. Bunwari Lall Roy as to the determination of the status of one party in relation to the other, upon a material issue in a proper suit in a competent court operating as res judicata in a second suit between the same parties is distinctly against the appellants' present contention. I think that we should dismiss this second appeal with costs.

S. S.Appeal dismissed.