Banerji, J.:— The only question which has been raised in the argument addressed to us, and which we are called upon to determine in this appeal, is whether the plaintiff respondent is entitled to the amount of interest awarded to him by the Courts below. The plaintiff is an assignee of the Government revenue, and he brought his suit under section 93(i) of Act No. XII of 1881, to recover from the defendant, landholder, arrears of Government revenue for the years 1302F. and 1303F. and the kharif harvest of 1304F. due to the plaintiff as such assignee. He included in his claim a sum of Rs. 103-0-4 as interest payable on the arrears due. The defendant, among other things, denied the plaintiff's right to obtain interest. He failed in the Courts below, and has raised the same contention in his appeal to this Court.
The question is a novel one, and, as far as we are aware, there is no reported judgment of this Court deciding it. It is urged on behalf of the defendant that as under the provisions of the second paragraph of the 148th section of the North Western Provinces Land Revenue Act, 1873, no interest can be demanded on any arrear of land revenue, the plaintiff as assignee of such revenue is not entitled to claim interest on the arrears due to him, and that an assignee cannot acquire higher rights than those possessed by his assignor. On the other hand, it is argued that the amount due to an assignee of revenue on the same footing as rent; that for all practical purposes it should be deemed to be rent and that interest is payable on it in the same way as interest is payable on rent. The point is by no means free from difficulty, but upon full consideration I am unable to hold that an assignee of the Government revenue is in any different position from all assignee of property of any other description, and that be virtue of the assignment in his favour the plaintiff can recover an amount which his assignor, the Government, was not entitled to recover. The second paragraph of section 148 of Act No. XIX of 1873 provides that “no interest shall be demanded on any arrear of land revenue,” and there fore, if the arrear were due to the Government, it had no power, by reason of the above provision, to demand and recover interest. The settlement with the predecessor in title of the defendant was made under the Land Revenue Act subject to all the rights and obligations created or imposed by that Act. One of the privileges acquired by the landholder with whom settlement was made was that he would not be liable to pay interest on arrears of revenue, and it is entitled to that privilege, not only against the Government, but against every one deriving title from Government. The plaintiff as assignee from the Government is not therefore entitled to obtain interest on arrears of revenue, any more than was the Government itself. The plaintiff, it is true, has not acquired all the rights conferred on the Government in regard to the collection of land revenue, but that is in consequence of the statutory provisions contained in the Rent Act (No. XII of 1881). Under that Act the process prescribed for the recovery of arrears of revenue due to an assignee of revenue is similar to that laid down for the realization of appears of rent, and for that purpose both classes of arrears are placed on the same footing, and this is what was held in Bithal Das v. Harphul . It does not, however, follow that for all purposes the arrears due to an assignee of the Government receive should be deemed to be, and created as, rent; and I cannot accept the view of the learned Judge of the lower appellate Court that these payments were contemplated by the Legislature to be payments of rent. It is no doubt true that interest in only compensation for the withholding of the money payable by one party to the other, and in the absence of statutory provision to the contrary it may be awarded to the party from whom payment has been withheld. But in the case of Government revenue the Legislature, by enacting the second paragraph of section 148 of Act No. XIX of 1873, thought it fit to declare that interest should not be paid on arrears of land revenue. It is not profitable to speculate as to the reasons for such an enactment. It is probable that some of the reasons which apply in the case of arrears due to the Government itself are not equally applicable when the arrears are due to an assignee from the Government, but had it been the intention of the Legislature that the interdiction as to the payment of interest should be limited only to the case of the Government itself, one would have expected that the Rent Act would have contained a provision for the payment of interest on arrears of revenue recoverable under that Act by an assignee from Government similar to that contained in section 34(a) in the case of rent. For the above reasons I hold that the plaintiff is not entitled to the amount claimed by him as interest.
The next question to be considered is whether we are precluded from granting to the defendant the relief to which he is, according to be above view, entitled by reason of any previous judgment which has the effect of res judicata. I am most reluctant to come to a conclusion which will work manifest injustice unless driven to do so by any specific provision of law which unmistakeably applies to the case before me. I may observe, in the first place, that neither of the Courts below has based its judgment on thee ground of res judicata. The learned Judge says:— “The question of interest payable on arrears of assigned land revenue I have gone into in a judgment between the same parties which is on the record. I hold that interest is payable.” He has evidently referred to his previous judgment as containing the reasons for his conclusion that interest was payable. In the next place, it is noticeable that in the able argument which Mr. Conlan addressed to us on behalf of the respondent he referred but faintly to the question of res judicata. It was not distinctly indicated on behalf of the respondent which judgment barred the present suit. All that was said was that in a previous litigation between these parties interest had been decreed to the plaintiff. If Mr. Wells' judgment of the 1st June, 1897, a copy of which is on the record of this case, is deemed to bar the defendant's plea as to interest in the present case, I am unable to hold that it has that effect. The 10th section of the Code of Civil Procedure bars a second trial under the conditions mentioned in the section, not only of a suit but also of an issue. It is beyond question that the subject-matter of the two suits is not identical. The present suit relates to the arrears for the three years 1302, 1303 and 1304F. the former suit had reference to arrears for three previous years. Was the issue as to interest the same in both suits? I am unable to hold that it was so. In the present suit arrears are claimed in respect of the defendant's share in khata No. 29. In the suit in which the judgment referred to above was passed the khata in question was No. 47. This is clear from the judgment itself. Assuming that the question of the plaintiff's title to recover interest was finally determined in the former suit, that determination had reference to the revenue payable for khata No. 47. The question of the defendant's liability to pay interest of arrears of revenue for khata No. 29 was not decided in that suit, nor in any other suit, as far as the record shows, and therefore that question has not become res judicata by reason of any previous judgment. The reasoning upon which the former judgment was based may by equally applicable to the present case, but that cannot have the effect of res judicata in the present suit in regard to the issue which arises in it. Suppose two bonds are executed by the same debtor in favour of the same creditor on exactly similar Terms, and in a suit brought on the basis of one of the bonds the question arises whether under the terms of that bond interest is payable, a decision of that question cannot surely bar the trial of a similar question if such question be raised in a subsequent suit brought upon the other bond. The reason for the decision of the issue in the one case would equally apply to the other, but it cannot be said that the issue in the one case is the same as that in the other. The issue in the first case would be whether interest was payable or the amount of the first bond. The issue in the subsequent suit would be whether interest was payable in respect of the amount of the other bond. These are not identical issuer. Similarly, in the case before us, the issue in the first suit was whether interest was payable on the arrears due on account of khata No. 47. That is not the same issue as the issue which arises in the present suit, namely, whether the defendant is liable to pay interest on the arrears for khata No. 29, Therefore the determination of the issue in the one case cannot bar a decision of the issue in the other. In this view it is unnecessary to express any opinion on the question whether, even if the former suit had related to khata No. 29, the khata, with which we are concerned in this suit, the defendant would have been precluded by reason of the judgment in the former suit from contesting the present claim to recover interest. The ruling in Balkishan v. Kishan Lal which was not cited at the hearing, but which I understand is supposed to apply to this case, has, in my opinion, no bearing on the question before us. There it was held that if a previous judgment negatives the title, of the plaintiff to obtain malikana, the plaintiff cannot re-agitate the same question of title by claiming malikana for a subsequent year. There was no decision in the previous litigation between the parties to this suit upon the question of the plaintiff's title as assignee of the Government revenue. However, I need not enter into a consideration of this matter, as, for the reasons stated above, I hold that there has been no previous adjudication of the defendant's liability to ??? on arrears due for the khata No. 29, and there is no bar of conclusiveness to the agitation of that question in the present suit. In this view the plaintiff is not legally entitled to obtain the interest decreed to him. I would allow the appeal, and vary the decrees below by dismissing the claim for recovery of interest. I would direct that the parties do pay and receive costs in all Courts in proportion to their failure and success. Quoad ultra I would affirm the decree of the lower Court.
Aikman, J.:— The plaintiff respondent is assignee from Government of land revenue of the village Fatehpura in the Agra District. The defendant appellant is a co-sharer in that village. The plaintiff sued him for arrears of land revenue for the years 1802-1803 and the kharif of 1304F., with interest thereon. The Court of first instance decreed the plaintiff's claim in full, and the decree was affirmed by the District Judge on appeal. The defendant comes here in second appeal. Of the pleas raised in the memorandum of appeal; the first only has bee a pressed. It is to the effect that the Courts below have erred in awarding interest on the arrears of land revenue. That plea is based on the second paragraph of section 148 of the N.-W.P Land Revenue Act of 1873, which is as follows:—
“No interest shall be demanded on any arrear of land revenue.” It is clear that the language of the Act supports the, appellant's contention.
For the respondent, it is argued that the section relied on occurs in a chapter which treats of the collection of land revenue ??? Government, and therefore does not apply to the case of a private ??? suing for arrears of land revenue. It is further pointed out that Government is by law invested with wide and summary powers for recovering such arrears, which powers a private person does not poses. The latter must have recourse to a suit, and delay must ??? frequently occur before he can realize the money due to him, ??? therefore, it is contended, he unfair to refuse him interest on ??? arrears. It is possible that the reason why the law prohibits Government from demanding interest on land revenue, when it is in arrears, ??? be that the same law gives the Government summary ??? the revenue immediately it is overdue, and that reason does not exist ill the case of a private person like the plaintiff. But ??? fact remains that Government has no power to demand interest, and in my opinion when Government assigns to a private person the right to receive land revenue, the latter is under the same Usability as his assignor in the matter of demanding interest. For the respondent, however, a plea is raised to the effect that, as between the parties to this suit, the question of the defendant's liability to pay interest is res judicata. This plea was overruled by the lower Court, but I feel bound, though somewhat reluctantly, to sustain it.
On the last occasion when the plaintiff sued the defendant for arrears of revenue, he claimed interest on those arrears. He was met by the same plea, based on section 148 of Act No. XIX of 1873, as is raised in the present case. The Assistant Collector, in an excellent judgment, sustained that plea and held that interest could not be claimed. But on appeal the District Judge, on the 1st of June, 1897, took a different, view, and held as between the parties to this suit that an assignee of land revenue is entitled to claim interest. Unfortunately for himself the defendant allowed that judgment to become final. It is no doubt true that the former suit was to recover a different sum of money with interest thereon from that claimed in the present suit, and therefore the cause of action was not the same as in this ca?e. Had the law as to res judicata been the same as it was in the old Code of Civil Procedure, it would have been difficult to sustain the respondent's contention. Section 2 of Act No. VIII of 1859 ran as follows:—“The Civil Courts shall not take cognizance of any suit brought on a cause of action which shall have been heard and determined by a Court of competent jurisdiction in a former suit between the same parties or between parties under whom they claim.” But the law as to res judicata has been expanded and modified by section 13 of the existing Code. As the law now stands a Court is forbidden to try, not only a suit, but an issue, in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties in a Court of jurisdiction competent to try the subsequent suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation IV shows what is a final decision within the meaning of Section. Now, as section 146 of the Code of Civil Procedure shows, an issue arises when a material proposition of fact or law is affirmed by the one party and denied by the other. It appears from this that a matter in issue may be one of law as well as of fact. The issue of law raised in the present case was raised in a former suit between the same parties, was heard, and was finally decided adversely to the present appellant within the meaning of Explanation IV by a Court competent to decide the present suit. In the case Pahlwan Singh v. Risai Singh it was observed “The subject-matter, in the sense of the thing sued for, is of course different in each suit, but it is the ‘matter in issue’ not the ‘subject-matter’ of the suit that forms the essential test of res judicata in the section in question (section 13) * * * *”. In the two suits of the parties now before us one common matter in issue was the question of the liability of the obligors of the bond in regard to the amount of the interest secured thereby.” Applying the principle enunciated in that case, I would hold that one matter in issue common to the two suits was the liability of arrears of land revenue to pay interest.
Again in the case Balkishan v. Riskan Lal there is in the judgment of Mahmood, J., in which Edge, C.J, and Straight, J., concurred, the following passage, at p. 157:—“Now there can be no doubt that for purposes of res judicata it is not essential that the subject-matter of the litigation should be identical with that the subject-matter of the previous suit of which the adjudication is made the foundation of the plea, which plea, as I have already said, is extensive enough to bar a suit as well as the retrial of an issue. The distinction Between the two aspects of the plea must not be lost sight of, for it is of special significance in cases of recurring liabilities such as the present. The general rule of law may be briefly stated to be that where a recurring liability is the subject of a claim, a previous judgment, dismissing the suit upon findings which fall short of going to the very root of the title upon which the claim rests, cannot operate as res Judicata, but if such previous judgment does negative the title itself the plaintiff cannot re-agitate the same question of title by ??? obtain relief for a subsequent item of the obligation.” No. in the present case, if the appellant is liable to pay interest on arrears of land revenue, this is a liability recurring as often as he is in arrears. The previous suit decided that he was liable on grounds which dealt not merely with the claim to interest then before the Court, but which went to the very root of plaintiff's title to recover interest at all.
I would also refer to the authorities cited on p. 47 et seqq of Mr. Hukm Chand's Treatise on the Law of res judicata. For the reasons set forth above I feel myself compelled to sustain the Respondent's plea based on section 13 of the Code of Civil Procedure.
I would dismiss the appeal with costs.
By the Court.
Under the second paragraph of section 575 of the Code of Civil Procedure the decree of the Court below is affirmed and the appeal is dismissed with costs.
Appeal dismissed.