Shanti Swarup Dhavan, J. - (1.) THIS is a plaintiffs' second appeal from the decree of the Civil Judge, Jaunpur affirming that of the Munsif Jaunpur dismissing their suit for the recovery of Rs. 200/ - as the price of crops alleged to have been cut away by the respondents. The appellants are the legal representatives of Smt. Chandrawati. She alleged that she had purchased the two plots in dispute but the respondents Sita Ram and Jai Ram had cut and misappropriated the crop standing on one plot and the respondent Baiju Kewat on the other. The contesting respondents denied that the crops had been sown by Smt. Chandrawati and alleged that they had sown them. They also alleged that they were the sub -tenants of the plots. It appears that during the hearing of the suit the plaintiffs admitted that the contesting respondents were the sub -tenants but advanced the story that they had surrendered their sub -tenancy rights. The respondents denied that there had been any surrender. Both sides led evidence, oral and documentary.
(2.) THE trial court held that the contesting defendants were the sub -tenants of the plots and had never surrendered their right. It also held that they had sown the crops and not the plaintiffs. It dismissed the suit. These findings were confirmed on appeal by the Civil Judge and the plaintiffs have come here in second appeal. Mr. Shimla Nandan who holds the brief of Mr. Keshav Sahai argued that the finding of the lower appellate court that the contesting respondents never surrendered their sub tenancy rights is wrong because the court did not consider the report of the Qanungo in some earlier proceedings. This report was rejected by the court on the ground that the Qanungo himself should have been produced to prove the statement made in it. I think the court was right in not considering the contents of the report. It was not a document written in the ordinary course of business like an entry in a register, but was a report made by an official on the direction of the court in certain other proceedings. The contents of a report of this nature cannot be used as evidence in a subsequent suit unless the official who made the report is produced and the party against whom its contents are to be used is given an opportunity to cross -examine him.
(3.) MR . Shimla Nandan then argued that the view of the court below that a decree in another suit was not res judicata because it related to the price of crops in a different year and was passed ex -parte, is erroneous. I think the principle of law enunciated by the lower appellate court is not correct. If a matter is in issue but one party does not turn up and there is an ex -parte decree against him, the decree operates as res judicata no less than one passed in a contested suit. But, unfortunately for the appellants, they did not produce sufficient material before the court to establish that the matter in issue in the earlier suit is the same as in the present one. It is not enough to produce a certified copy of the decree (without the judgment). The party should file the judgment, the plaint, and the written statement in the earlier suit to enable the court to ascertain what was in issue and what was decided and whether the court was competent as contemplated in S. 11 CPC. Learned counsel asked me to infer from words of the decree that the matter in issue in the earlier suit must have been same as in this suit. I do not think that such an inference can be drawn from this insufficient material. The onus is on tire party relying on the earlier judgment to establish to the satisfaction of the court that the matter in issue in the present suit had already been decided finally and conclusively between the same parties by a court of a competent jurisdiction. The appellants have not discharged this onus. In fact, it is not even known whether the decree of the trial court was confirmed or reversed by the appellate court.;