BHARGAVA, J - (1.) THIS is a second appeal by Bhanwarlal and other heirs of Gaindilal who had originally filed the suit. The suit was filed against Rajbai widow of Motilal, and Rajababu. Rajbai died during the pendency of the suit and after her death other respondents were made parties to the suit.
(2.) THE only contention raised in this appeal is that the courts below have not correctly applied principles of res-judicata and estoppel to the facts of the case. THE present suit is for recovery of possession of movable and immovable properties described in paragraphs 8 and 9 of the plaint and for a declaration that the plaintiff, as a reversioner, is entitled to the properties left by Motilal deceased and further that defendant No. 1 i. e. , Rajababu is not the adopted son of Motilal. The case of the defendants was that Rajababu was validly adopted by Mst. Rajbai according to the custom prevalent in their community. The contention in this appeal is that the question whether Mst. Rajbai could adopt Rajababu without having any authority from her deceased husband, is barred by res judicata on account of the decree passed in the previous suit No. 82 of In order to sustain the plea of res judicata or estoppel, it is essential for the party to raise it in the pleadings and to produce necessary documents i. e. , the pleadings, issues and judgment to show what matters were decided in the previous litigation. The plea with regard to res judicata or estoppel was not taken in the plaint at all. In paragraph 5 the plaintiff only states that on 20th December, 1941, Mst. Rajbai executed an adoption deed in favour of Mannalal father of Rajababu and the plaintiff filed a suit for declaration for cancellation of the adoption deed against Mst. Rajbai and Mannalal which was dismissed by the trial court and the first appellate court but was decreed by the High Court on 5th April, 1945. Beyond this no other facts were alleged to support the plea of res judicata or estoppel nor were the judgments of the trial court and the first appellate court brought on the record of this case. Copy of the plaint and the judgment of the High Court was of course produced in the case. But I have heard the parties on this question because an issue was framed on it and the courts below have recorded their finding. On the application of appellants to which no objection was taken by learned counsel for the respondent, record of the trial court in the previous case was sent for and has also been received. The facts which led to the previous litigation are that one Motilal 'saraogi' (Jain) husband of Mst. Rajbai died in Smt. year 1971. On 20th December, 1941 Mst. Rajbai adopted Mannalal as son to her husband and also executed an adoption deed on the same date. Gaindilal plaintiff filed a suit challenging the said adoption and for declaration that he was entitled to the properties of Motilal as his reversioner. It was alleged in the plaint that Motilal during his life time by oral will had declared the plaintiff and his father as his heirs. In paragraph 5 it was alleged that "the defendant did not belong to their family and no ceremonies according to the custom of their community or according to the requirements of Hindu law were performed and in fact no adoption took place. Neither could the defendant be adopted to Motilal, nor could defendant No. 2 Mst. Rajbai adopt any one as her husband Motilal ha not made any will in her favour to adopt any one. " The suit was contested by the defendants and the following issues were red : - (1) Whether defendant Mannalal was not the adopted son of Motilal deceased and a declaration to that effect could be made. (2) Whether Mst. Rajbai had no right to take defendant No. 1 in adoption. (3) Whether Motilal before his death had declared plaintiff and his father as his heirs and the plaintiff at present is his heir. (4) Whether the plaintiff is a reversioner and what is its effect on the suit. No specific issue about the competency of Mst. Rajbai to adopt without her husband's authority was framed. Before the trial court it was urged on behalf of the plaintiff that Mannalal's adoption was invalid because the giving and taking of the adopted boy was not established and further because he was given in adoption by his brother. The trial court gave its finding on issue No. 1 only holding that the parties were Jains and as such Mannalal could be validly given in adoption by his brother. The trial court thought it unnecessary to decide the other issues. Thus issue No. 2 which could only relate to the question now in controversy remained undetermined. In appeal before the learned District Judge the adoption was also challenged on the ground that the boy was not given in adoption by his parents but by his brother. The learned District Judge rejected the appeal on the ground that the plaintiff had failed to prove the pedigree and did not decide the question about the validity of the adoption. The plaintiff appealed to the High Court. As the decision of the appeal depends upon the effect and scope of judgment of the High Court I quote its full text which is a short one. "this is a plaintiff's second appeal in suit for declaration that the Defendant No. 1 is not an adopted son of one Motilal deceased. The suit was filed in the Court of City Sub Judge on the allegations that Mst. Rajbai defendant No. 2 who is the widow of Motilal executed a deed of adoption in favour of Defendant No. 1 after the death of the said Motilal that she had no right to execute the deed of adoption as against the right of the plaintiff who claimed the declaration as a reversioner of the deceased Motilal. The suit was dismissed by both the Courts below, the trial court holding that the adoption was valid and the lower appellate court being of opinion that the plaintiff failed to prove that he had a right to sue. In this Court the learned advocate for the respondent agreed that the suit may be decreed against the respondent but that the defendant may be exempted from paying the costs incurred by the plaintiff In view of the facts briefly stated it seems just and proper to allow the respondent's prayer. The appeal is consequently allowed. The orders of the lower courts dismissing the suit are set aside and the plaintiff's suit is decreed but it is ordered that the parties will bear their own costs through out. " After the above decision of the High Court Mst. Rajbai again adopted the present respondent who is the son of Mannalal whose adoption was challenged in the previous suit. Since the defendants had got into possession of Motilal's properties the plaint was amended after the death of Mst. Rajbai and relief for possession was added. Now it is upon these facts that the plea of res judicata or estoppel is founded. The contention of the learned counsel is that by the above judgment the High Court gave its own decision and it cannot be regarded as one upon consent. Secondly it is contended that in the previous suit question about Mst. Rajbai's right to adopt without her husband's authority was raised and so by necessary implication it was decided by the High Court and is res judicata. Even if the decision was given on the consent of the party, it is contended, the effect would be the same. Therefore it is not open to the defendants to re-agitate the same issue in this suit. There is no substance in the argument that the judgment of the High Court dated 5th April, 1945 is not founded on the admission of the counsel for the respondent. Its bare perusal shows that the High Court allowed the respondent's prayer and on its basis decreed the plaintiff's suit and left the parties to bear their own costs. No opinion was expressed by the High Court on the merits of the case. There was no determination by the High Court of any issue raised in the case. It is quite plain that the judgment proceeded on the basis of the admission made by the counsel for the respondent that the suit be decreed. In support to his second contention learned counsel has referred to large number of cases viz. , (1) Ajai Verma vs. Ram Bharosey Lal (2), Nikuja Beharidas vs. Jatindra Nath Kar (3), Newton Hickie vs. Official Trustee of West Bengal (4), Ganesh Jha vs. Baidyanath Jha (5), Sundrabai vs. Devaji Shanker Deshpande (6) Shankar Sitaram Sontakke vs. Balkrishna Sitaram Sontakke (7) Ramkrishna Jagannath vs. Vithal Ramji (8), Apurba Krishna Roy vs. Syama Charan Pramanik (9), Baijnath Singh vs. Rajju Singh (10), Haider Hasan vs. Anjju-man Muhafiz Aukaf (11), Mithoolal Girdharilal vs. Babu Jainarayan Bahadurlal (12), Allahbux Pindok vs. Nusserwanji Co. , and a passage from Halsbury's laws of England Vol. 15 Third Edition p. 178. It is not necessary to discuss these in detail because the principles laid down in these cases are well settled. In Sailendra Narayan Bhanja Deo vs. The State of Orissa (13), it has been held that - "a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. " Their Lordships quoted with approval the following observations of Lord Herschell in In re South American and Mexican Co. (14) - "the truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action. " Their Lordships further quoted the following observations from a judgment of the Calcutta High Court in Secy. of State vs. Ateendranath Das (15) - ''on this authority it becomes absolutely clear that the consent order is as effective as an order passed on contest not only with reference to the conclusions arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded. When we say 'every step in the reasoning' we mean the findings on the essential facts on which the judgment or the ultimate conclusion was founded. In other words the finding which it was necessary to arrive at for the purpose of sustaining the judgment in the particular case will operate as estoppel by judgment. " See also Shankar Sitaram Sontakhe vs. Balkrishna Sitaram Sontakke (6 ). It is well settled that even an erroneous decision on a question of law operates as 'res-Judicata' between the parties to the suit and correctness or otherwise of a judicial decision has no bearing upon the question. Mohanlal Goenka vs. Benoy Krishna Mukherjee (16 ). It has also been settled that "where the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point, each of which by itself would be sufficient for the ultimate decision, the decision on each of these points operates as res judicata between the parties. " (Vithai Yeshwant Jathar vs. Shikandarkhan Makhtumkhan Sardesai (17) but in cases decided on the compromise of the parties, it is open to them to terminate a suit in any particular manner without any question raised by the plaintiff or put in issue between the parties being determined. In the same manner it is open to a party to make admission on one point only which might be sufficient for the decision of the case. The question is whether in such circumstances where the decree is passed on the terms of the compromise or on the admission of the party, can it be said that the decision of the court by implication involves the determination of the remaining issues or of questions which though not brought in issue were raised in the pleadings. In this connection I may refer to Raja Kumara Venkata Perumal Raja Bahadur vs. Thatha Ramasamy Chetty (18 ). The court while laying down the test for determining whether there is an estoppel in any particular case in consequence of a decree passed on a compromise observed - In our opinion the answer must depend on the answer to the question "did the parties decide for themselves the particular in dispute by the compromise? and was the matter expressly embodied in the decree of the Court passed on the compromise or was it necessarily involved in, or was it the basis of, what was embodied in the decree ? For setting this point it would be legitimate, and sometimes necessary, to look into the pleadings between the parties in the suit terminated by the compromise decree. Even if the compromise was made before the defendant put in his written statement, it would still be proper to look at the allegations in the plaint to understand the terms of the compromise. It is no doubt open to the parties to agree to terminate a suit in a particular manner without any questions raised by the plaintiff or put in issue between the parties being determined, but whether a compromise in any particular case proceeds upon such an understanding or is based upon an admission of some or all of the allegations made by either of the parties is a matter of construction in each case, and no hard and fast rule can be laid down applicable to all cases. " It was further observed that: "a compromise decree must also be distinguished from a decree passed upon a confession of judgment or an admission made by the defendant that the plaintiff is entitled to a particular relief. The effect of such an admission must be judged solely from its terms. A defendant may admit the plaintiff's right to the relief claimed - say a right to a certain sum of money - while denying the particulars of the claim or the cause of action alleged in the plaint, and it would be a proper rule to construe an admission made by the defendant strictly and not to stretch it beyond its terms. The judgment in such a case is the result of the admission of one of the parties to the suit, the defendant, and not of an agreement between the two parties to it. " The above observations were cited with approval in Mrs. Nellie Wapshare vs. Pierce Leslie & Go. Ltd. (19 ). Again in (Chennuri) Appalanarasiah Chetty Garu vs. Makka Chittavadu (20), it was observed: "that a consent decree can operate as res judicata, there can be no question; but on the facts of each case, the Court must determine whether the decree properly construed does so or not. Did the parties, while consenting to the decree, deduced from advert to the point at issue and apply their minds to it? And further, did they intend by the agreement, on which the decree is based, to settle the question finally and did the consent decree actually so settled it? This, it seems to me, is the correct principle to be the numerous cases dealing with the point. " See also Minalal Shadiram vs. Kharsetji Jivaji (21) and Gokul Prasad vs. Mahant Hari Saran Das (22 ). In Jagjivan Singh vs. Sitaram (23), one 's' had brought a suit for ejectment of 'j' from a house of which 'j' was a tenant. The ground on which the ejectment was prayed was that arrears of rent were due and the house was required by the landlord for his own personal use. The suit was dismissed by the trial court so far as the prayer for ejectment was concerned. In appeal a compromise was arrived at between the parties. On the basis of the compromise 'j' agreed to hand over possession of the house within ten months and a decree was passed accordingly. After the coming into force of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the decree was sought to be executed and the question arose whether by the decree it had been decided inter partes that the house was needed by the landlord for his own use. It was held that "by the consent decree the aforesaid point cannot be said to have been decided by necessary implication. " In Mansha Ram alias Mansu vs. Milkhi Ram (24), it was observed that : "a consent decree is as much res judicata as a decree obtained after contest though sec. 11 of the Code of Civil Procedure is not strictly applicable to consent decrees. But a consent decree can only operate as res judicata when the question raised in the subsequent suit was present to the minds of the parties, and was actually dealt with by the consent decree, i. e. , when the consent decree actually settled the question. " In New Brunwich Railway Company and British and French Trust Corporation, Limited (25), to which reference is made in the passage in Halsbury's Laws of England, it was held Per Lord Maugham L. G. that : "in the case of a judgment in default of appearance a defendant is only estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment. " The principle which emerges from a review of these cases is that a consent decree may operate as res judicata by necessary implication also in certain cases. But it will be a matter of construction of its terms in each case to see if it so does and no hard and fast rule can be laid down for application to all cases. Keeping this in view, the question whether the counsel of the respondent in the previous case intended to make any admission on the question about the right of Mst. Rajbai to adopt a boy to her husband without his authority? Whether the High Court by its judgment decided that question? In my view having regard to the circumstances narrated above, the answer to these questions should be 'no' Though the plaintiff in the previous suit raised the above question in the plaint yet no specific issue was framed on the point. The plaintiff did not request the court to frame any specific issue on the point and which might probably be due to the fact that the parties in the case were Jains amongst whom no such authority of the husband was necessary. Even if it be assumed that issue No. 2 covered this question, the arguments in the previous case were confined before the trial court and the first appellate court only to the question whether Mannalal could be validly given in adoption by his brother. Validity of the adoption was not challenged on the ground which is now in controversy. The appeal was decided by the first appellate court only on the ground that the plaintiff had failed to prove his pedigree and had no right to institute the suit. The remaining issues were not decided by that court. The relief claimed in the previous suit was for a declaration that Mannalal is not the adopted son of Motilal and the adoption deed was ineffective against the rights of the plaintiff. This relief could be granted to the plaintiff on this ground alone that he was given in adoption by his brother. By his admission learned counsel for the respondent in the previous case only conceded that the plaintiff be given the relief which he had sought in the plaint. It was quite unnecessary for the counsel in the circumstances of the case to make any admission on the question whether Mst. Rajbai could adopt any boy without her husband's authority, because it was not urged by the plaintiff before the courts below, nor as already stated there was any issue on that point. Similarly, the High Court neither decided nor could have intended to decide the above question. The only decision which was made by the High Court was that the plaintiff was given a decree and it was declared that Mannalal was not the adopted son of Motilal and the deed of adoption was not binding upon the plaintiff. The High Court was not called upon to decide about the competency of Mst. Rajbai to adopt any one without the authority of her husband. I have, therefore, no hesitation in holding that the counsel for the respondent in the previous case did not intend to make any admission, nor did he do so on the above question, nor was the High Court called upon, nor did it actually decide that question and it can neither operate as res judicata nor estoppel against the respondent in this case. The appeal therefore, fails and is hereby dismissed with costs. Learned counsel prays for leave to appeal which is granted. . ;