JUDGMENT Malik, J.
1. This is a defendant's appeal. The plaintiff respondent Mt. Gaura, filed a suit for profits under Section 226, U.P. Tenancy Act, against Shib Singh appellant in the revenue Court. Shib Singh in defence alleged that Bihari, husband of Mt. Gaura, was joint with Shib Singh's father, Durga, at the time of Bihari's death and therefore the rights of Behari in the joint family property came by survivorship to the defendant Shib Singh and Mt. Gaura had no right to claim a share of the profits. This plea raised in defence having involved a question as regards proprietary title, the revenue Court, under Section 286 of the Act, framed an issue on the question and submitted the record to the Court of the learned Munsif for determination, The learned Munsif held that the family was separate and on return of the finding the Assistant Collector decreed the suit. Against that decision Shib Singh filed an appeal in the Court of the learned District Judge of Shahjahanpur. The learned District Judge did not go into the question whether Behari and Durga were joint or separate and instead of deciding the case on merits he decided the case on a plea of res judicata which was not raised by either party, but which he says he found from the file to be a very clear plea which barred the defence. He, therefore, dismissed the appeal except that he modified it with reference to village expenses to a certain extent. It is against that decision that Shib Singh has filed this second appeal in this Court.
2. In the year 1935, Mt. Gaura filed a suit No. 27 of 1935, in the revenue Court for realization of her share of the profits for the years 1339, 1340 and 1341 Fasli. Shib Singh was at that time involved in a criminal case in which he had been sentenced to death. Be that as it may, no defence was put in on behalf of Shib Singh and the suit of Mt. Gaura was decreed ex parte. In the year 1939 Mt. Gaura filed another suit for profits for the year 1345F, but for some reason that suit did not proceed to trial and it was dismissed for default on 5th December 1939, though in the presence of the defendant. This was the third suit that Mt. Gaura filed for her share of the profits for the years 1346 and 1347F. The learned District Judge was of opinion that the ex parte decree in suit No. 27 of 1935 barred the defence of Shib Singh that Mt. Gaura was not entitled to a share of the profits and, he therefore, did not allow the plea of Shib Singh that Mt. Gaura's husband Behari was not separate from Durga to be raised before him.
3. The learned Counsel for the appellant urges that plea of res judicata not having been raised in the trial Court, the lower appellate Court could not allow that plea to be raised, and in fact in this case no party having raised that plea it was not open to the learned Judge to take up the plea of res judicata for himself and decide the case on that ground. He relies on the case in Jagdish Chandra v. Gour Hari Mahato ('36) 23 A.I.R. 1936 P.C. 258 for the proposition that a party is not entitled to raise a plea of res judicata when the said plea has not been raised in the pleadings and particularly in the issues, and he urges that their Lordships of the Judicial Committee meant to lay down that in no case should a plea of res judicata be entertained by an appellate Court where the plea had not been raised in the written statement and had not been the subject-matter of issues in the case. His argument is that res judicata is a plea in bar, which a party may waive, and if a party has not taken the plea in the written statement it must be deemed, as a matter of law, that he has waived the same. Before this decision of the Privy Council, the law in this Court was very clear that a plea of res judicata could be raised at any stage. In Muhammad Ismail v. Chattar Singh ('81) 4 ALL. 69 a Full Bench of this Court held in second appeal that where a plea of res judicata had not been urged in either of the two lower Courts or in the memorandum of appeal and was raised for the first time in second appeal, it must be considered and determined either upon the record as it stood or after a remand of findings of fact.
4. In another Full Bench decision of this Court reported in Ram Kinkar Rai v. Tufani Ahir ('31) 18 A.I.R. 1931 All. 35 where the point was considered as, to what points of law should be allowed to be raised for the first time in appeal when the point had not been raised in the Court below, an exception was made that the plea of res judicata, limitation and jurisdiction could be raised in second appeal even when such plea had not been raised in the Courts below and various rulings on the points were discussed, which it is not necessary for me to discuss here. I was not able to get a copy of the report of the Calcutta High Court of the case which went up to their Lordships of the Judicial Committee in the year 1936. I therefore do not know on what grounds the Calcutta High Court refused the plea to be raised before it, but from a study of the judgment of Lord Thankerton reported in Jagdish Chandra v. Gour Hari Mahato ('36) 23 A.I.R. 1936 P.C. 258, it is clear that in that case before the Judicial Committee from the judgment of the previous case which was pleaded in bar as res judicata the identity of the subject-matter in dispute was not established. To my mind, therefore, the decision of their Lordships of the Judicial Committee must be 'confined to the facts of that case and it must be understood to mean that where from the facts before the Court the plea of res judicata cannot be sustained by the appellate Court such plea should not be allowed to be raised if it was not raised in the pleadings or in the issues. To that extent the decision in the Full Bench case reported in Muhammad Ismail v. Chattar Singh ('81) 4 ALL. 69, must be deemed to be now modified and it will no longer be necessary to remand the case for findings if the plea is raised for the first time in appeal and it is not clear from the facts that the previous decision will operate as res judicata. I do not consider that the mere fact that the plea was not raised in the first Court was enough to justify the Court in finding that the party must be deemed to have deliberately waived the same. To my mind, therefore, the lower appellate Court could consider the plea of res judicata even though it was not raised by either party in the Court or before it.
5. On the question whether the ex parte decree in Suit No. 27 of 1935 operated as res judicata in the present suit I am not in agreement with the decision of the learned District Judge. A suit for profits against a lambardar is specially within the jurisdiction of the revenue Court and therefore Suit No. 27 of 1935 was filed in the revenue Court as was the present suit out of which the present appeal has arisen; but the revenue Court has no jurisdiction to decide a proprietary title and when such a plea is raised the revenue Court is bound under Section 286, U.P. Tenancy Act, to remit an issue to the civil Court. In Suit No. 27 of 1935 no defence having been put in no such issue was raised and no such issue was, therefore, remitted to the civil Court for consideration. The learned Counsel for the respondent, however, urges that explanation 4 of Section 11, Civil P.C. will be deemed to apply and the Court should deem that the plea of title was raised, an issue was remitted, to the civil Court and the civil Court must be deemed to have decided against Shib, Singh. To my mind, this extension to Section 11, Civil P.C. is not permissible and the issue now raised not being within the jurisdiction of the Court that decided the Suit No. 27 of 193, this plea is not barred.
6. The learned Counsel further urges that in the previous suit the rent claimed was for the years 1339 to 1341 F while in the present suit the claim being for the years 1346-47F,it must be held that the matter now in issue between the parties was not directly and substantially in issue in the previous case. His contention is that the question whether the share of profits was payable in the year 1339-41 F, is entirely different from the question whether the share of profits is payable in the year 1346-47 F. To my mind, however, both the claims are based on one consideration as to whether Mt. Gaura is a cosharer entitled to claim her share of the profits. If the plea had been raised by Shib Singh in Suit No. 27 of 1935 the issue would have been as to whether Durga and Behari were members of a joint Hindu family or were separate and whether on the death of Behari his share of the property came by inheritance to his widow or went by survivorship to his brother or nephew. The issue in the present suit for profits for 1346-47F is identically the same and to my mind, therefore, if this issue had been raised in Suit No. 27 of 1935 and it had been decided by civil Court against Shib Singh it would not have been open to Shib Singh in this suit to again raise the same plea.
7. In support of his contention the learned Counsel for the appellant has relied on a number of decisions to establish that in a similar case it must be held that the point in issue in the second suit was not directly in issue in the former suit. The first case relied on by him is Ram Bahadur Singh v. Luoho Koer ('85) 11 cal 301. In that case certain proceedings under Act 27 of 1860 for succession certificate to collect the debts of her husband where the plaintiff had opposed the grant of the succession certificate but had lost was put forward for operating as res judicata against the plaintiff in a suit brought by him claiming the property by survivorship on the ground that the family was joint and the widow had no right. Their Lordships of the Judicial Committee held that the grant of the succession certificate was not a decision of title and the proceedings for the said grant could not operate as res judicata. A decision of the Munsif of a suit for rent brought by the widow was also put forward as operating as res judicata, but their Lordships of the Judicial Committee held that the Munsifs jurisdiction was limited and he was not competent to entertain the second suit and, therefore, that decision too could not operate as res judicata. That decision therefore is not of much assistance to the appellant, though their Lordships observations as regards the decision of the Munsif may be of some assistance in favour of my view that Suit No. 27 of 1935 was peculiarly cognisable by the revenue Court and therefore could not operate as res judicata to bar the plaintiff's title.
8. The next case relied on is Srihari Banerji v. Khitish Chandra ('97) 24 cal. 569. In that case A brought a suit against B for rent which was decreed. B subsequently brought a suit against A for declaration of title to the land purchased by him in execution of the mortgaged decree. A pleaded in defence that the decree in the rent suit operated as res judicata. A Bench of the Calcutta High Court held that the issue in the former suit was as to what rent the plaintiff was entitled to and not the issue of title which was only incidental and not directly raised and, therefore, the second suit was not barred. I have examined the facts of that case and, to my mind, that case does not support the broad proposition of law as put forward by the learned Counsel for the appellant. In that case the Court held that the right to possession and, therefore, the right to recover rent by suit belonged to a prior purchaser, though a subsequent purchaser in satisfaction of prior mortgage might raise the question of proprietary title in a suit properly framed for the purpose and in that view they held that the previous decree could not bar the second suit which had been properly filed. I may quote a case reported in Badhamadhub Holdar v. Monohur Mukerji ('88) 15 cal. 756, where a suit for realisation of rent had been filed on the basis of the title but it was held that after a certain sale the title of the plaintiff to claim rent had come to an end, therefore, the plaintiff's suit for rent after the said sale was dismissed. The plaintiff's second suit for declaration of title was dismissed on the ground that the dismissal of the rent suit operated as res judicata and barred the second suit.
9. The other cases relied on by the learned Counsel are Gnanda Gobindo v. Nalini Bala Devi ('26) 13 A.I.R. 1926 Cal. 650 and Bhikabhai Ratanchand v. Bhuribai ('03) 27 Bom. 418. The case in Gnanda Gobindo v. Nalini Bala Devi ('26) 13 A.I.R. 1926 Cal. 650 was decided on its own facts, and in that case the learned Judges of the Calcutta High Court held that on the facts it was not at all clear that the question of liability of the estate for the rent of the putni for all times was either raised or decided. They have in a part of the judgment laid down that in the case of suits for rent or for recurring liabilities the causes of action for suits for successive periods are different. In such suits it will be for the party pleading res judicata to show that the question of right or liability not merely for the period in the previous suit but that for all times or once for all was directly and substantially in issue and was tried and determined, and if a direct issue on the point was raised and decided the decision would be res judicata in respect of any suit for a subsequent period. If the decision fell short of that requisite and if the general question was gone into and decided merely for the purpose of deciding the right or liability for the period involved in the suit, then the issue was raised not directly and substantially but collaterally or incidentally. To my mind, these observations in the said case cannot be deemed to be of any general application and in every case the Court will have to see as to what was the nature of the plea that was raised or could be raised in the previous case and if all the requirements of Section 11 were fulfilled the mere fact that the claim was for two different periods for which the rent was claimed would not be enough to refuse to give effect to the plea of res judicata. I may here refer to a case decided in Prithi Singh v. Ramsaran Mahto ('36) 23 A.I.R. 1936 Pat. 356 where after careful consideration of several authorities the Patna High Court held that the relation of landlord and tenant was the very foundation of a decree in a suit for rent, and therefore when such a suit had been decreed the Courts must proceed on the footing that it was a matter necessary to be determined and in fact determined in the earlier rent suits and it could not be relegated to the category of matters only indirectly, collaterally and incidentally decided.
10. The next case relied on is Bhikabhai Ratanchand v. Bhuribai ('03) 27 Bom. 418. In that case the plaintiff had filed a suit on certain allegations for maintenance and for residence based on a deed of settlement dated 23rd June 1896. The suit was decreed against the husband but it was not decreed against the surety who was a party to that' suit. In the second suit brought by the plaintiff against the husband and the surety a plea was raised that the fact that the previous claim was not decreed against the surety operated as res judicata. The Bombay High Court considered the previous decision and came to the conclusion that in the previous suit the Subordinate Judge had held that the surety was liable, but for some reason the Subordinate Judge had refused the relief against the surety for the period included in the first suit. On those findings the plea of the surety in the second suit was clearly not res judicata, and I am in full agreement with the decision in the said case.
11. The last case relied on is Tayyab Hasan v. Saghir Hasan ('39) 26 A.I.R. 1939 All. 52. In that case all that was held by a learned Single Judge of this Court was that a decree in a suit awarding mesne profits up to the date of the suit could not be res judicata upon the question of mesne profits for subsequent period. "With due respect to the learned Judge who decided that case I find myself unable to agree with that decision. To my mind whether a decision operated as res judicata or not will depend on the nature of the issue raised and not on the question whether the two suits were based on the same or different causes of action. The plea of res judicata does not depend upon the question whether the two suits are based on the same cause of action or on different causes of action. As a matter of fact, it is difficult to conceive of a second suit based on the same cause of action on which a suit had already been based and decided. What he probably meant was that a suit for the period after the filing of the previous suit was based on a different cause of action and was maintainable.
12. The learned Counsel for the respondent has relied upon a case reported in Phillips v. Mitchell ('32) 19 A.I.R. 1932 Cal. 889 at page 893. In that case Costello J. held that, if a plea which could have been raised as a defence in a former suit was omitted in that, it could not in a subsequent suit be raised as a ground of attack. The case was based on Expln. 4 of Section 11, Civil P.C. and the point which arises in this case as to whether an ex parte decision in a rent suit in a revenue Court which had no jurisdiction to decide a question of title could be raised as res judicata in a subsequent suit in which the plea of title was raised did not arise in that case, or in the other cases cited by the learned, counsel which are Sri Gopal v. Prithi Singh ('98) 20 All. 110 (F.B.), Fateh Singh v. Jagannath ('25) 12 A.I.R. 1925 P.C. 55, Chandi Prasad v. Maharaja Mahendra Mahendra Singh ('02) 24 All. 112 and Har Sarup v. Anand Sarap ('42) 29 A.I.R. 1942 All. 410,
13. In Ashrafunnisa v. Ali Ahmad ('04) 26 All. 601 where an Assistant Collector who had heard a suit for profits had decided a question of title which was raised before him that decision was held not to operate as res judicata in respect of a suit which was brought in the civil Court in which the proprietary title to the land out of which such suit for profits had arisen was again raised. The same view was taken by another Bench of this Court reported in Gomti Kunwar v. Gudri ('05) 25 All. 138. In view of what I have stated above, I am of the opinion that the ex parte decree in the Rent Suit No.27 of 1935 did not operate as res judicata and the lower Court should have gone into the question raised in the appeal and decided the same. I, therefore, set aside 'the decree of the lower appellate Court and remand the case to the said Court for decision according to law. Costs here and heretofore will abide the result. The court-fee of this appeal will be refunded to the learned Counsel for the appellant.