AYETONNESSA BIBI Vs. AMJED ALI

JUDGEMENT

(1.) These appeals arise out of suits for rent for the year 1326 to 1329 B.S. The defendants held a jama under the miras ijara of the plaintiffs. The Government thereafter claimed a portion of the land included in the jama as accretion and started dearah proceedings under Act 31 of 1853 in respect of it. In those proceedings the dearah officer purported to settle separate rent is respect of that portion of the land which he found to have been alluvial accretion. In 1917 the plaintiffs brought suits for rent as settled by the dearah officer. One Asmat Ali, one of the defendants in those suits and who is also a defendant in the present suits and who seems to be the most prominent figure in this fight, appeared and contested the suits on the ground that the dearah officer had no authority under the law to split the jama and assess rents thereupon. In spite of the contest the suits were decreed by the Munsif. Shortly after the decrees were passed, a petition was filed on behalf of the plaintiffs and Asmat Ali in which he admitted the jama as decreed and agreed to pay rent to the plaintiffs at the rate decreed. In 1919 the plaintiffs again brought suits for rent and Asmat Ali contested them on the grounds taken by him in the previous suits. Those suits were also decreed according to the claim of the plaintiffs. The present suits were brought in 1923 claiming rent at the rate claimed in the previous suits. The same defence was raised not on behalf of Asmat this time, but on behalf of the appellant a pardanashin lady. The trial Court upheld the defence and decreed the suits in a modified form. The appellate Court on appeal by the plaintiffs has decreed the suits according to the rent claimed by the plaintiffs. These appeals are by one of the defendants and several points have been raised before us by the learned vakil appearing in support of them.

(2.) It is contended in the first place that the findings arrived at in the lower appellate Court with reference to the decrees of 1917 and 1919 are inconsistent and that the Court having held that the decrees in the previous suits did not operate as res judicata in the present suits he should have further held that rents assessed by the dearah officer are not recoverable in the present suits. The learned Subordinate Judge has held that the decisions in the suits of 1917 and 1919 are not res judicata because they were erroneous decisions on a question of law. He considered the attitude of the appellants in the previous suits and relying upon the petition filed by Asmat above referred to and the circumstances in the cases including the previous decisions against the defendants he decreed the plaintiff's suits in full. I must admit that the reasoning of the learned Subordinate Judge is not very consistent and clear. But the learned advocate for the respondents has attempted to defend the decree of the lower appellate Court on a ground on which the Subordinate Judge took a different view. His contention is that the decrees in the previous suits ought to operate as res judicata in the present suits. In the circumstances of the present case it seems to me that this contention is well founded. In the suits of 1917, in spite of the contest by one of the defendants who had appeared, the Court held that the plaintiffs were entitled to recover rent as settled by the dearah officer. It is said that it is a wrong decision on a pure question of law and therefore cannot operate as res judicata. Now, the question whether a decision on a question of law ought to operate as res judicata or or not is a question on which it is difficult to find any uniformity in the decisions in the various reports. The principle which ought to govern decisions of this question has been lucidly laid down in Aghore Nath V/s. Kamini Devi [1910] 11 C.L.J. 461 which has been followed in a number of cases which it is not necessary to examine as they are based on the principle laid down in that case. A weighty pronouncement on this subject has been made by the Bombay High Court in the Full Bench case of Sitaram Sakharam V/s. Lakshaman Vishnu A.I.R. 1921 Bom. 87, were Shah, J., observed: It seems to me that the plea of res judicata is not dependent upon the merits of the reasons given for a particular conclusion. The conclusion, whether right or wrong, is binding upon the party.... Its binding character does not depend upon the correctness of the reasons for the conclusions.... The See. (11, Civil P.C.), does not make any distinction between an issue of law and other issues; it refers generally to questions directly and substantially in issue and heard and finally decided, and I do not think that the distinction can be accepted without restricting the scope of the section in a manner not justified by the words of the section. It would involve the reading of words in the section which are not there.

(3.) The result of all the decisions upon, this point is that a decision, however, erroneous it may be on a question of law, may not operate as res judicata only in eases where the causes of action are different; but in all other cases it must operate as res judicata between the parties. The view that an erroneous decision on a question of law should not constitute res judicata is based on the consideration that otherwise an error of law would be perpetuated by Courts of justice for all time to come. But it is settled that an erroneous decision based upon a mixed question of law and fact will operate as res judicata though the decision on the question of law involved is erroneous Ramlal Malikand V/s. Deodhari Rai A.I.R. Pat. 265 and Hublal v. Gulzarilal . In the latter case a view has been broadly stated that an erroneous decision on the question of law will be as much res judicata between the parties as upon any other questions, This unqualified expression of opinion may not be consistent with that which has prevailed for a long time in other Courts, but it is not wholly unjustifiable. Reliance has been placed on behalf of the appellant, in support of his submission that the decision in the suits of 1917 and 1919 were erroneous in law and therefore cannot operate as res judicata in the present suits, upon the decision in Alimunnissa Chaudhurani V/s. Shama Charan Boy [1905] 32 Cal. 749. In that case the previous decree was given on a certain view taken on the question of law as then understood. Subsequent to that decision the Judicial Committee laid down the law what it should be. After the decision of the Judicial Committee a subsequent suit was brought and it was contended that the decision in the previous suit was res judicata. The learned Judges held that a change in the law as affected by the decision of the Judicial Committee will have the same effect if it was effected by a statute and therefore the decision of the question of law in the previous suit was not res judicata in a subsequent suit. In the concluding portion of the judgment Maclean, C.J., remarked: I do not desire to be understood as saying that a point of law oan never constitute res-judicata.