1. The facts here are as follows: The land in suit was a non-transferable occupancy holding belonging to one J. N. Moitra and held under him by two brothers Jadab and Madhab in equal shares. The holding was brought to sale by the landlord for arrears of rent and purchased by himself in 1915. In 1916 Jadab mortgaged his half share to plaintiff. In February 1917, the two brothers sold a portion of the jote to defendant No. 1 and defendant No. 2 in the present suit. In 1918 plaintiff sued on his mortgage against Jadab making defendant No. i and defendant No. 2 also parties; the suit was decreed in March 1919 on compromise against Jadab and ex parte as regards defendant No. 1 and defendant No. 2. On the 22nd June, 1921, Jadab's half share was brought to sale in execution and purchased by plaintiff. Upon his going to take possession he was resisted by defend-ant No. 1 and defendant No. 2 on the ground that they had taken a settlement from the landlord in January, 1918 Hence the present suit. This settlement has been found as a fast by the lower Appellate Court which dismissed the suit with costs.

2. The main argument before us has been upon the question whether Defendant No. 1. and defendant No. 2 are not now estopped from raising this question of paramount title in the settlement of 1918, seeing that they failed to raise it in the previous mortgage suit brought by the plaintiff against Jadab to which the defendant No. 1 and defendant No. 2 were also made parties, though they did not appear. The question was not argued in the lower Appellate Court, for it was there conceded that no estoppel existed in the present case. The rule of res judicata is set out in Section 11 of the Code of Civil Procedure, 1908, which provides that no Court shall try any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties litigating under the same title in a Court competent to try such subsequent suit, and has been heard and finally decided. If this part of Section 11 were in itself exhaustive it would be impossible in the circumstances of the present case to support the plea, But then comes Explanation IV which lets in the principle of constructive res judicata by explaining that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. In the circumstances of the present suit it is conceded that the matter of the paramount title might have been made a ground of defence in the previous mortgage suit, and the dispute is narrowed down to the question whether it ought so to have been. It is clear enough that as a general rule the proper scope of a mortgage suit is to cut off the equity of redemption and bar the rights of the mortgagor and those claiming under him; the only proper parties to such a suit being the mortgagor and the mortgagee and those who have acquired an interest under them subsequent to the mortgage. In such a case a stranger setting up an adverse claim of title cannot be made a party for the purpose of litigating that in the mortgage suit. Jaggeswar Dutt v. Bhuban Mohan Mitra 33 C. 425 : 3 C.L.J. 205. In Nilakant Banerjee v. Sureshchandra Mulick 12 I.A. 171 : 12 C. 414 : 9 Ind. Jur. 439 : 4 Sar. P.C.J. 685 (P.C.) certain defendants impleaded in a mortgage suit as being interested in the equity of redemption subsequent to the mortgage set up a title paramount and claimed not to be proper parties : they were accordingly dismissed from the suit, and the Judicial Committee agreed that that was the correct view; otherwise it was said, the suit would have been multifarious and confused in the highest degree if it had gone on in that shape, as the defence raised was quite foreign to the scope of a mortgage suit. Certain other decisions are to be found in the reports bearing upon this question where, as in the present case, the person subsequently setting up a claim of paramount title is a party to the former litigation in another capacity which brings him within the legitimate arena of the mortgage suit. Thus Hare Krishna v. Robert Watson & Co. 8 C.W.N. 3658 C.W.N. 365 is a case where the question of paramount title had been raised by a defendant whom the mortgagee had made a party as being interested in the equity of redemption : the plaintiff accepted the issue on that footing, and was not allowed subsequently to maintain that it should not have been raised. In Girija Kanta Chakrabutty v. Mohim Chandra Acharjya 35 Ind. Cas. 294 : 23 C.L.J. 587 : 20 C.W.N. 675 the facts were that three brothers A, B and C were owners of the disputed property. A and B executed a mortgage of the entire property to the plaintiff. Then A died and subsequently the mortgagee sued B and C to enforce his security. B was made a party as an original mortgagor and as one of A's representatives: C only as the representative of his deceased brother A. There was no suggestion that the mortgage was operative otherwise against C. A decree was then made ex parte in the mortgage suit and the property was brought to sale and purchased by the plaintiff: He failed to get actual possession and sued to eject B and C. It was held that C was entitled to plead his paramount title and was not bound by the doctrine of res judicata that as C was a party to the previous suit only as representing his brother A the question whether the mortgage was operative against him in his personal capacity was not and could not have been raised in that litigation, as the suit was framed. The principle of this case was followed in Gobardhan v. Manna Lal 46 Ind. Cas. 559 : 40 A. 584 : 16 A.L.J. 639 where a puisne mortgagee holding also a paramount title in one instance did not appear, and in the other attempted to set up his paramount title but was not allowed to do so See also Yennamani Rammanna v. Masunari Venkatarayana . In the case' of Srimanta Seal v. Bindubasini Das the facts were very similar to those in the present case, and the position is thus summarised, that " the plaintiff was joined as a defendant in the suit instituted by the mortgagees to enforce their security: At that time he had a two-fold character.... He was, no doubt, joined as a defendant as the purchaser of the equity of redemption. But he could also set up his title paramount derived from the landlords." The learned Judge [who was also a party to the decision in Girija Kanta's case 35 Ind. Cas. 294 : 23 C.L.J. 587 : 20 C.W.N. 675 above cited then refers to the case of Hare Krishna v. Robert Watson & Co. 8 C.W.N. 365 and continues " Here the plaintiff was a defendant in the mortgage suit. He had a two-fold character. As purchaser of the equity of redemption he was properly before the Court; as settlement-holder from the superior landlord, he could set up a defence that the mortgage could not be enforced against the property in his hands. He did not take that defence and the result was that a decree was made for sale of the mortgaged property in his presence. The decree is operative against him and he will be bound by the result of the sale in execution. In the present litigation, he seeks to avoid the decree and to make it inoperative, though it was passed in his presence and is obligatory upon him. Clearly such a course is not permissible; if this suit were allowed to be maintained, the only possible result would be a multiplicity of litigation."

3. This decision in Srimanta Seal v. Bindubasini Das has been strongly urged on behalf of the appellant in the present case. It is a matter for observation, however, that throughout the judgment the mind of the Court is directed entirely towards whether the defence of the paramount title " could " be set up in the mortgage suit; nowhere does it appear that the Court applied itself to the consideration of the question whether that was a matter which not only might but also ought to have been made a ground of defence in the former suit, within the meaning of Exp. IV of Section 11, Civil Procedure Coda. Unless both conditions are satisfied the rule will not apply.

4. The question whether a matter ought to have been made ground of defence or attack in a previous suit is one which has been said to depend upon the particular facts of each case; and where matters are so dissimilar that their union might lead to confusion the construction of the word becomes important. Kumeswar Pershad v. Ruttun Koer 19 I.A. 234 : 20 C. 79 : 6 Sar. P.C.J. 241 (P.C.). Nilakant Banerjee v. Suresh Chandra Mulick 12 I.A. 171 : 12 C. 414 : 9 Ind. Jur. 439 : 4 Sar. P.C.J. 685 (P.C.) has been already mentioned as a case of a mortgage suit where a defendant being impleaded as having purchased subsequent to the mortgage set up a title paramount by way of defence, and was dismissed from the suit and their Lordships of the Judicial Committee approved that procedure. It is true that there were other parties in the suit also claiming paramount titles in respect of the other portions of the property, which would have served to accentuate the multifariousness and confusion to which reference is made, but there is no indication that a Court must go into a question of title paramount, even if raised in a mortgage suit by only one defendant who is impleaded in another capacity as having an interest in the equity of redemption. In Radha Kishun v. Khurshed Hossein 55 Ind. Cas. 959 : 47 I.A. 11 : 47 C. 662 : 25 C.W.N. 417 : 18 A.L.J. 401 : (1920) M.W.N. 308 : 38 M.L.J. 424 : 11 L.W. 518 : 22 Bom. L.R. 557 : 28 M.L.T. 425 (P.C.), already referred to, where a prior mortgagee was made a party in a suit on a subsequent mortgage and did not set up his title, their Lordships say, at page 15 Page of 47 I. A. -[Ed.]:

"The rule is clear; the controversy is narrowed down to the question whether the facts invite its application. It becomes necessary, therefore, to see what was the position of (the prior mortgagee) in the former suit."

The position as their Lordships proceed to show was that he was a prior mortgagee with a paramount claim outside the controversy of the suit unless his mortgage was impugned. Consequently to sustain the plea of res judicata it was incumbent on the subsequent mortgagee in the circumstances of that case to show that they sought in the former suit to displace the prior mortgagee's title and postpone it to their own, which meant that it would have been necessary for them as plaintiffs in the former suit to allege a distinct case in their plaint in derogation of the paramount claim of the prior mortgagee.

5. I think these matters above set out afford a guide for the decision here. It must be seen what the position of defendant No. 1 and defendant No. 2 was in the former suit as framed So far as the plaint was concerned there was no case made in derogation of any paramount claim: on the contrary, it was an ordinary mortgage suit, brought for the realization of the mortgage security and the barring of the equity of redemption, the defendant No. 1 and defendant No. 2 being impleaded therein as possessing an interest in the equity of redemption and in do other capacity. They did not appear. In my opinion in order to sustain the plea of res judicata in the present case it would have to be shown that in the previous suit the question of paramount title had been alleged in order to displace it: and that is not the case. Had the defendant No. 1 and defendant No. 2 appeared and endeavoured to raise the question themselves in the suit as framed, it is possible that the plaintiff might have objected and it would have been open to the Court to sustain the objection and refuse to enlarge the scope of the suit. If, as I think, the Court had at any rate the discretion, if not the duty, to refuse, it cannot now be contended that the matter was a ground which ought to have been raised. If admitted, it might open the door to the addition of other parties concerned, in this case, for instance, the landlord through whom the paramount title was claimed. It would have altered the whole character and scope of the suit by the introduction of matters outside the limits assigned to the controversy by the plaintiff himself, within which the relief he sought was confined. Having chosen those limits, I do not think that in the circumstances here existing it is permissible for him to contend, as he does, that because the doctrine of res judicata has its root in the policy of avoiding multiplicity of suits, therefore, it was obligatory on the defendant in the previous suit to raise the question of title which the plaintiff himself might have endeavoured to put in issue by his pleading, had the suit been differently framed and properly framed for that purpose. I would, therefore, reject the contention that in the circumstances of this case the matter is one which ought to have been raised in the previous suit, and hold that the facts do not attract the operation of the principle of res judicata.

6. A further point has been raised in the appeal, that in deciding whether the landlord did or did not recognise the old tenant after the rent sale the Court has wrongly placed the burden of proof. The appellant seems to argue that it was for the plaintiff to get from the landlord's man any explanation of the entry of four annas in the landlord's register. He argues that the entry of four annas was a piece of evidence in his favour and it was for the opposite party to explain it away, inasmuch as it would by itself show recognition by the landlord. What the Judge says is that the so-called payment of four annas only was extremely curious and no explanation was Bought for from the landlord's man who was examined. By this I think the learned Judge means that the fact that only four annas was paid in two years was curious and that plaintiff did not attempt to get from the landlord's man why only four annas was paid. What the plaintiff was asked to explain was not why four annas had been paid which was a fact in his favour but why only four annas had been paid and not more. The important word in the judgment is the word "only." There is no substance in this contention.

7. The result is that the appeal is dismissed with costs, Cuming, J.

8. I agree.