Meredith, J.:— This is an appeal by defendants 1st party, under the Letters Patent, from a decision of Das, J., sitting singly. The suit was for a declaration of title to and recovery of possession over 11 bighaa and odd of land in village Raghopur Diara. In this village there are three tauzis, of which we are concerned with 11843. This tauzi is divided into four pattis of which one is called Sheikhain Patti, which in turn is divided into Bari Sheikhain and Chhoti Sheikhain. The plaintiffs and defendants second party are owners by purchase of the Chhoti Sheikhain Patti, and defendants 1st party, defendants 3rd party and some of defendants 2nd party are the owners of Bari Sheikhaia Patti. Two thousand bighas and odd accreted to the lands of the village some time about 1897, and, according to the plaintiffs, thereafter there was a partition, and the suit lands with others were allotted to the Chhoti Sheikhain Patti. According to the plaintiffs, these lands were settled with defendants 1st party on a rental of Rs. 34-8-0 some time thereafter. In 1933 the plaintiffs brought a rent suit (2760 of 1933) for the years 1337 to 1340 against defendants 1st party, who alleged in defence that there had been no partition, but simply occupation of separate portions of the lands by mutual arrangement for convenience amongst the maliks, and accordingly they or their predecessors in interest had been in possession all along not as tenants, but as co-sharer maliks. This suit failed. It was dismissed by the learned Munsif on the ground that no relationship of landlord and tenant existed, and this decision was upheld in appeal on 20th November 1935. On 17th November 1938, the present title suit was brought for ejectment, based on the repudiation of the landlord's title in the rent suit of 1933.

2. The learned Munsif held that the plaintiffs' case of partition and allotment of the lands to their patti was correct, but he dismissed the suit as barred by res judicata and limitation. The learned Subordinate Judge on appeal agreed with the Munsif on the merits. He held that the rent suit decision was not res judicata on the question of title, and as the defendants' possession only became adverse when they denied their landlord's title in 1933, and the suit was brought within 12 years of that date, there was no question of limitation. Accordingly he decreed the suit. This decision has been upheld in second appeal by Das, J. The two points argued before him were with regard to res judicata and limitation, and upon both these points the learned Judge took the same view as the Subordinate Judge, The same two points have been argued before us in Letters Patent appeal. I agree with Das, J., on the point of res judicata, and, as he has examined the question exhaustively, I do not consider it necessary to add much to what he has said, or to refer to the numerous decisions cited by him. The legal position is, in my opinion, quite clear. The decision in a rent suit is not res judicata on the question of title unless the question of title had to be decided, was expressly raised, and was expressly decided between the parties and in each case it is necessary to examine carefully the decision in the rent suit before any opinion can be formed as to whether it operates as res judicata on the question of title or not. Ordinarily the decision would be res judicata only with regard to the existence of the relationship of land-J lord and tenant. The difference in the two classes of cases is very well illustrated in two Privy Council decisions, namely, Run Bahadoor Singh v. Mt. Lucho Koer, 12 I.A 23 : (11 Cal. 301 P.C). where it was held that the decision was not res judicata as the question of title had been gone into only incidentally and collaterally, and Radhamadhub, Holdar v. Manohar Mookerji, 15 I.A 97 : (16 Cal. 766 P.C.), where the question of title was directly decided in a rent suit, and the decision was held to be res judicata. In the present case I have carefully perused the decisions of the two Courts in the rent suit, and I find that the decision was expressly confined to the) relationship of landlord and tenant, and the question of title was gone into only incidentally in order to decide the other question. The learned Subordinate Judge who heard the appeal has expressly stated that the only point raised before him was whether the defendants held the rent claimed lands as tenants of the plaintiffs, and he winds up by saying:

“Having thus considered the facts and evidence in the case I hold that the plaintiffs failed to establish the relationship of landlord and tenant between them and the defendants.”

3. It is also noteworthy that no attempt was made to decide the status of the defendants. Thera were three possibilities, namely, that the defendants were in possession as tenants, that they were in possession as co-sharer maliks, or that they were in possession as trespassers. The decision was that they were not tenants, but the question whether they were co-sharer maliks or trespassers was left entirely open.

4. I find myself unable, however, to agree with Das, J., on the question of limitation. The question of title being open, the Courts in the present case were free to decide whether the defendants were in possession as co-sharer maliks or as trespassers. The decision of both the Munsif and the Subordinate Judge is that title lay exclusively with the plaintiffs after partition. The view that the defendants were in possession as co-sharer maliks is, therefore, excluded, and there remains only the third alternative that they were in possession as trespassers, and admittedly they had been in possession all along since soon after 1896, and the plaintiffs had never been in direct possession. The Courts below have sought to avoid this conclusion by holding that the defendants were in possession as tenants, but that view was not open to them. They have proceeded on the assumption that the rent suit decision was res judicata only with regard to the non-existence of the relationship of landlord and tenant during the years in suit—1337 to 1340, and that it was open to them to hold that up to the time of that suit the relationship of landlord and tenant existed. But it was nobody's case that there was ever any tenancy except that put forward in the rent suit of 1933, and what they have done in effect is to hold that the decision in the rent suit, though res judicata with regard to the existence of this tenancy, was nevertheless wrong. That is just what it was not open to them to do. The principle of res judicata cannot be whittled down, and the decision of the Rent Court is undoubtedly res judicata on the question as to whether the particular tenancy, which was asserted, did or did not in fact exist. There was a clear decision that it did not exist, and that decision had no reference at all to the years in suit. It was a decision generally, based on an examination of the entire position since 1896 or 1897. It was a decision that the relationship of landlord and tenant had never existed, and, in my view, it is res judicata on that point. If authority be wanted, it is to be found in Bhairab Chandra v. Kadam Bewa, 18 C.L.J 553 : (22 I.C 28). I do not think anything to the contrary is laid down in Mrigendra Nath v. Krishna Chandra, 33 C.L.J 334 : (A.I.R (8) 1921 Cal. 355) and Shyam Lall v. Brindaban, A.I.R (11) 1924, Cal. 460 : (72 I.C 655) because we do not know in those cases what were the exact issues, and what were the allegations and the exact decisions in the previous suits.

5. The position, therefore, is this. The defendants have been in direct possession since about 1897. As a result of the rent suit, it must be held that they were not in possession as tenants. As a result of the present title suit, it must be held that they were not in possession as co-sharer maliks. There remains, therefore, only the third possibility, and they were undoubtedly in possession as trespassers. As such no question of possession becoming adverse in 1933 arises. The plaintiffs are suing in ejectment, and they have to show that they were in possession either directly or through tenants within 12 years of the suit. They have been unable to do so. On the contrary, it is quite clear that the defendants acquired title by adverse possession.

6. I would accordingly allow this appeal but without costs, set aside the decision of Das, J., and dismiss the suit without costs throughout.

7. Manohar Lall, J.:— I have come to the same conclusion.

8. The relevant facts have been sufficiently stated in the judgment of my learned brother.

9. The first contention of Mr. P.R Das is that the decision in the former rent suit also decided the question of title between the parties, and in support of his contention that a decision in a rent suit even on the question of title will be res judicata, he has taken us through every one of a large number of authorities which have been noticed in the elaborate judgment of Das, J. Having perused those authorities, I am in complete agreement with the view of Das, J. taken by him in the judgment under appeal. That conclusion is supported by the two Privy Council decisions of Raja Run Bahadur Singh v. Mt. Luohoo Koer, 12 I.A 23 : (11 cal. 301 P.C) and Radhamadhub v. Monolmr, 15 I.A 97 : (15 Cal. 756 P.C). The later cases of the Calcutta High Court, so strongly relied upon by Mr. Das before us, namely, Panchu Mandal v. Chandra Kant, 14 C.L.J 220 : (12 I.C 9), a case decided by Mookerjee, J. sitting singly, Mrigendra Nath v. Krishnachandra, 33 C.L.J 334 : (A.I.R (8) 1921 Cal. 355) also decided by Mookerjee, J., but in Division Bench where he was sitting as Acting Chief Justice, along with Fletcher, J. and Shyam Lall v. Brindaban, A.I.R (11) 1924 Cal. 460 : (72 I.C 655), do not support the extreme contention advanced by him that in every case it must be held that the question of title has been finally decided between the parties when it is found that the question of title has been somehow decided. In my opinion, the true rule which is deducible from an examination of a large number of cases is that in every case the judgment in the earlier rent Rule should be critically examined to find out whether the question of title was directly and substantially in issue between the parties and was decided, or whether that question was incidentally decided, always remembering that as a rule in a rent suit no issue is struck by the Court, but it has been repeatedly held that it is not at all necessary that an issue should be formally raised. This conclusion was reached by Mookerjee, J. even in Panchu Mandal's case, 14 C.L.J 220 : 12 I.C 9, a case which was so strongly relied upon before us. Having perused the judgment of Mr. Ibrahim, who decided the appeal in the earlier rent suit, I am satisfied that the only question which the learned District Judge decided was whether the relationship of landlord and tenant existed between the parties during the years in suit. It is true, he referred to the evidence on the question of the title of the plaintiff where he claimed the rent-claimed lands to have fallen into his patti as a result of a partition but he considered that question only in order to find out whether he could believe the plaintiff's case that the lands in suit were settled with the defendant as a tenant. As my learned brother baa shown, a careful perusal of that judgment would show that the question of the private partition and whether the disputed lands fell in the Chkoti Sheikhain Patti were incidentally gone Into by the learned District Judge; but the decision actually given was confined to the point whether there was a relationship of landlord and tenant between the parties—this being the point get out for decision by the learned District Judge when he begins the operative part of his judgment. Das, J. has reached the same conclusion, and in my opinion, that view is perfectly correct.

10. The second contention of Mr. Das is that if the question of title was rightly open to be raised in the present suit, in that event it should have been held that the present suit was barred by limitation, because it was instituted on 17th November 1938, snore than 12 years after the date when the plaintiff was out of possession of the lands in dispute. To this, the reply of the learned Advocate-General was that the defendant has not ever asserted a right to hold the lands by adverse possession, but only as a co-sharer, and therefore, by the application of Article 144, Limitation Act, the possession became adverse only when the defendant denied the title of the landlord in the earliar rent suit.

11. In my opinion, this question is easy of solution, as I am of the opinion that the decision in the earlier rent suit operated as res judicata on the character of the possession of the defendant over the lands in suit. The decision in the earlier rent suit amounted to a clear decision that the defendant was not a tenant of the plaintiff not only in the years in suit, but ever since 1897. The matter may have been entirely different if the plaintiff's case was that the defendant was in possession as a tenant during the years in suit in the earlier rent suit on a different kind of tenancy under which he was in possession before the period of the earlier rent suit. The plaintiff's case, however, was that the defendant has been in possession as a tenant from 1897 onwards, and he did not allege any change of circumstances which led to the defendant's possession under another tenancy on different terms during the years in suit in that rent suit. I would hold that the previous decision is res judicata upon the question of an earlier tenancy under the plaintiff. That question was no longer open to be freshly tried in the present suit.

12. I would draw attention to the case of Midnapur Zamindari Co., Ltd. v. Jogendra Kumar, 33 C.L.J 186 : (A.I.R (8) 1921 Cal. 760), not cited at the bar, where Mookerjee Ag., C.J and Fletcher, J. made these observations:

“A judgment operates by estoppel as regards all the findings which are essential to sustain the judgment. If, as was said by the Judicial Committee in Soorjomonee v. Suddanand, I.A Sup. Vol 212 : (12 Bang. L.R 304), the question was raised by the pleadings and argued, if both parties invoked the opinion of the Court thereupon, we cannot come to the conclusion that the judgment upon it was ultra vires, merely because an issue was not framed which, strictly construed, embraced the whole of it; regard must be had rather to the substance than to the form of action, which would by no means prevent the operation of the general law relating to res judicata. In the case before us, it is plain that in the previous suit for rent the root question agitated between the parties was the true effect of the tenth paragraph of the compromise decree…….”

13. Attention may also be drawn to a similar view taken by James, J. in the case of Fazilat Hussain v. Ramkhelawan, A.I.R (21) 1934 Pat. 282 : (147 I.C 1055), In that case in a rent suit the parties went to trial on the issue of the ownership of a house. It was held that the decision on that question in a later suit was barred by the principle of res judicata. It will be found at page 283 that the question as to ownership of the house in 1925 having been decided against the plaintiff, the learned Judge observed that the evidence on which it is now sought to be proved that the plaintiff was the owner of the house cannot be accepted

“because his case is that he is and has always been proprietor of the house; and no explanation has been given and no attempt has been made to show how, if he had been proprietor before, he had ceased to be proprietor in 1925.”

14. The root question which was agitated is the earlier rent suit was whether the defendant was a tenant of the plaintiff by reason of his having been inducted on the land from 1897 as a tenant of the plaintiff, and not that the defendant was inducted on the land during the years in question in the earlier rent suit.

15. Attention may also be drawn to the casa of Bhairab Chandra v. Kadam Bewa, 18 C.L.J 553 : (22 I.C 28), where Jenkins C.J observed, Mookerjee, J. agreeing, that in the case before them the relationship of landlord and tenant

“does not exist and has not existed between the plaintiff and the defendant. It was so decided in an earlier suit of 1894.”

16. This is exactly the position in the present case. In the earlier suit it was decided that any relationship of landlord and tenant has not existed between the plaintiff and the defendant.

17. For these reasons, I am of the opinion that it should be held that the suit of the plaintiff was barred by limitation, because the appropriate article to apply in a suit for ejectment is Article 142, Limitation Act. Even if, however, it is conceded that Article 144, Limitation Act, applies, then also the plaintiff's suit is barred by limitation, because on the findings the possession of the defendant became adverse from the very date he entered into possession not as a tenant and also not as a co-sharer, as on the findings in the present suit the relationship of the parties ceased to be that of co-sharers when the partition took place, and a separate patti was allotted to the plaintiff in which the lands in suit are situated. It is to be observed further that the plaintiff has not based his suit on the ground of eviction of his co-sharer, but on the ground that the defendant has repudiated his title as a landlord, and therefore, by the rule of forfeiture Article 143, Limitation Act should be applied. For these reasons, I am constrained to differ from the view taken by Das, J. on the question of limitation. Accordingly, I agree that the appeal must be allowed and the plaintiff's suit must be dismissed. Parties to bear their own costs in all the Courts.

D.H

18. Appeal allowed.