Muthammal vs The Secretary of State for India in Council

John Edward Power Wallis, Kt. Officiating C.J.

In this case the plaintiff sued to recover certain lands which she alleged to form part of her Mitta and to have been wrongfully taken possession

of by Government, and in the alternative for a reduction of the peishcush paid by her for Fasil 1317 proportionate to the extent of the lands which

had been taken fr6m her. The boundaries of the mitta and the adjoining Government lands were delineated under the Boundaries Act XXVIII of

1860 in the year 1880, when the Boundary Settlement Officer found that the lands in question had never formed part of the area of the Mitta and

accordingly excluded them. The proprietor of the Mitta did not contest this decision by filing a suit u/s 25 of the Act as he might have done. In this

circumstance the decision of the Boundary Settlement Officer that the lands in question did. not form part of the Zemindary is res judicata

according to the decision of the Full Bench in Kama Raju v. The Secretary of State for India ILR (1887) M. 309 and I think that the ground of the

decision, viz., that they never had formed part of the Mitta is also res judicata as having formed the ground of decision. The Subordinate Judge was

therefore right in dismissing the plaintiff''s suit on this ground. In the view I take of the case, the question whether the Court is precluded by the

terms of Section 58 of the Madras Revenue Recovery Act II of 1864 from entertaining the plaintiffs'' claim for a return of proportionate peishcush

for the fasli in question, as to which there was a difference of opinion between the learned Judges who heard the appeal does not arise. The appeal

fails and is dismissed with costs.

Ayling, J.

I agree.

Seshaghiri Aiyar, J.

I entirely agree with my Lord. I only wish to say a few words with reference to the argument of Mr. Govindaraghava Aiyar that the decision of

the survey officer in 1880 u/s 24 of Act IV of 1897 is conclusive only as regards the actual decision arrived at in the case namely, that the lands

claimed belonged to the Government and not to the Mittadar. I am unable to uphold this contention. Exhibit III, the petition to Mr. Baber, sets out

the ground on which the claim was made : It says that prior to the sale of the mitta to the claimant''s transferor, the mitta included the lands in

dispute, and that at the sale in 1868, they passed to the purchaser. These were the questions which the Survey Officer had to decide. He did

decide them although he did not raise the points in the form of specific issues. Section 24 of the Boundaries Act says that such a decision is final

subject to its being contested in a Givil Court within a specified time. It is conceded in this case that no suit was filed within the time limited. The

decision is therefore binding upon the parties whether it is res judicata in the technical sense in which the term is used in the CPC or not; the general

principles enunciated in Section 11 of that Code are of universal application. The question under that section will be whether a matter was

substantially in issue and not whether it has been formally in issue. It was pointed out by the Judicial Committee of the Privy Council in (1876) ILR

1 144 (P.C.) (Privy Council) . ""It has probably never been better laid down than in a case which was referred to in Gregory v. Molesworth (1747)

3 Atkyns 626. Order 26 E.R. 1160 in which Lord Hardwicke held that where a question was necessarily decided in effect, though not in express

terms, between parties to the suit, they could not raise the same question as between themselves in any other suit in any other form; and that

decision has been followed by a long course of decisions, the greater part of which will be found noticed in the very able notes of Mr. Smith to the

case of the Duchess of Kingston."" In Narayanan Ghetti v. Kannammai Achi ILR (1901) M. 838 the learned Judges; say that an appellate judgment

operates by way of estoppel as regards all findings which are necessary to make the decree effective. Gokul v. Shrimal (1904) 6 Bom. L.R. 288

lays down the same proposition. Apart from the plea of res judicata, as a question of estoppels the same considerations must apply. In Bigelow on

Estoppsl, after a full examination of all the English and American authorities, it is stated ""a former judgment or verdict on the other hand, is

conclusive between the parties to contested'' causes (as has already been intimated) of all necessary inferences arising from it, as well as of the

matters actually in issue."" See also pages 97 and 157, Sir George Mellish expresses the proposition thus in Alison''s case, ''In re Bank Hindustan,

China and Japan (1873) 9 Ch. A. 1. ""It is clear, I apprehend, that a judgment of the Court of Common Law is not only conclusive with reference

to the actual matter decided, but that is also conclusive with reference to the grounds of the decision, provided that from the judgment itself the

actual grounds of the decision can be clearly discovered. It seems clear from the authorities that the plea of res judicata or estoppel is available not

only as regards the final conclusion of the Court or officer, but also regarding all findings necessary for arriving at that conclusion whether they are

given on formal issues raised in the case or are referrable to the points which must have been the basis of the final determination. In the present

case, the principal subject of controversy was whether the Court sale of the mitta included the lands which the Government claimed to exclude. It

was on the ground that it did not form a portion of the mitta that the survey officer decided that the property did not belong to the claimant but to

the Government. That pronouncement estops the appellant from claiming that the lands in dispute passed to him by the auction sale. As the

peishcush was imposed only after the, sale to him, it follows that the assessment on these lands was not taken into account in fixing the amount

payable by the appellant.