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Judgment
John Wallis, C.J.—The question is whether the plaintiff is estopped from bringing this suit against Government to recover the emoluments
attached to the office of Mutawalli of the suit wakf, an office which he now alleges to be descendible by usage to the nearest qualified male heir of
the last holder of the office, by reason of the dismissal of the previous suit instituted by him against his elder brother, the then first defendant, and
that brother''s son, the then second defendant, for a declaration that their father''s will nominating such second defendant and the plaintiff''s own son
to succeed him in the office was invalid, and that the plaintiff by reason of his elder brother''s insanity was entitled to succeed to the office and its
emoluments and for an injunction restraining them from interfering with him. The suit was dismissed in Second Appeal by the High Court, which
held that the plaintiff had clearly no title to the office and that the appeal had been rightly dismissed by the Lower Appellate Court. The Lower
Appellate Court held that in the absence of any special provision or usage the office devolved on the nominee of the last Mutawalli, and declined to
allow the plaintiff to set up a case of usage which had been abandoned in the Lower Court and which was not proved. In the present case the
plaintiff has pleaded that he is entitled to succeed by the usage of the institution, and the defendant, whilst admitting that the plaintiff''s father was ""an
hereditary holder of the yeomiah allowance,"" has denied the plaintiff''s right and also relied on the decree in the previous suit as barring the present
suit.
As regards the general question our decision should in my opinion be based on the provisions of the CPC and the Evidence Act and on the
English Law on which they are founded. The Privy Council in Imambandi v. Mutsaddi (1918) I.L.R., 45 Cal 878 (P.C.), has deprecated the
practice of referring to foreign decisions and observed that the judgments of foreign Courts based often on considerations and conditions totally
differing from those applicable or prevailing in India are only likely to confuse the administration of justice, and the warning is specially applicable
with regard to subjects which are dealt with in Indian Code based on English precedents.
In England, as observed in Roscoe''s Nisi Prius, page 190:
the judgment of a Court of concurrent jurisdiction directly upon a point is, as a plea, a bar, and, as evidence, conclusive upon the same matter
between the same parties,
and he goes on to explain that it is conclusive (as an estoppel) where there is an opportunity of pleading it; but that, where there is no such
opportunity, it is conclusive as evidence. In India Section 40 of the Evidence Act makes a previous judgment relevant on the question whether it by
law prevents the Court from taking cognizance of a suit or holding a trial. The law which prevents the Court from taking cognizance of a suit or
holding a trial is to be found in Section 11 of the Code of Civil Procedure, which only prohibits the trial of a suit or issue which has been directly
and substantially in issue in a former suit between the same parties or:
between parties under whom they or any of them claim, litigating under the same title.
Now the effect of this section read with Section 9 in my opinion is to preclude the Court from refusing to try a suit or issue which was not between
the same parties but between one of such parties and a third person, because, as observed by the Privy Council in Gokul Mandar v. Pudmanund
Singh (1902) I.L.R., 29 Calc., 707 (P.C.),
The essence of a Code is to be exhaustive on matters in respect of which it declares the law, and it is not the province of a Judge to disregard or to
go outside the letter of the enactment according to its true construction.
It is true that as held by the Privy Council in Ram Kirpal v. Rup Kuari (1884) I.L.R., 6 All., 269 (P.C.) and in the very recent case of Hook v.
Administrator-General of Bengal (1921) 48 I.A., 187 this section is not to be read as entitling a party to reagitate a matter decided at an earlier
stage of the same suit; and it is also true that it does not prevent consent decrees from operating as an estoppel; but it does in my opinion prevent
the Court from refusing to try suits or issues by reason of previous judgments not between the same parties, a sort of estoppel unknown to English
law especially as the Evidence Act closely following the English law contains express provisions as to the general effect of previous judgments in
evidence. Section 41 makes certain judgments of a Court in the exercise of a Probate, Matrimonial, Admiralty or Insolvency jurisdiction not only
relevant but conclusive evidence of certain matters. Having dealt with such judgments, which are usually known as judgments in rem, the Act goes
on to deal with other judgments generally known as judgments in personam, and provides in Section 42 that they are:
relevant if they relate to matters of a public nature relevant to the inquiry,
but are not conclusive proof of what they state, and in Section 43 that all other judgments are irrelevant unless the existence of such judgment is a
fact in issue or relevant under some other provision of this Act, and under those other provisions the judgment may be relevant but cannot be
conclusive in law though it may in fact. Thus in Brew v. Haren (1874) Ir.R., 9 C.L., 29 and Brew v. Haren (1877) Ir.R., 11 C.L., 108 where the
question was whether the plaintiff was the owner of the foreshore, the facts that he had successfully prevented people from taking seaweed from
the shore and that he had instituted a suit for trespass in which there was a reference to arbitration and an award in his favour were held evidence
of ownership. Similarly, if in a suit where the previous judgment is not res judicata u/s 11, Civil Procedure Code, a question should arise whether
certain property belonged to A or B a judgment by which A had recovered possession from B by a decree which had become final might be just
as conclusive evidence as a conveyance from B to A irrespective of the question whether the previous judgment was right or wrong. A previous
judgment between altogether different parties might even be conclusive in the same way, as in R. v. Hebden (1738) Andr., 388 the report of which
in Selwyn''s Nisi Prius, volume 2, page 1136, is referred to both by Taylor and Roscoe. That was a quo warranto to try the defendant''s right to be
a bailiff of Scarborough. He relied on his election under two former bailiffs. The prosecution denied that they were bailiffs, and on this issue,
tendered a judgment of ouster against the two bailiffs in question. On a motion for a new trial, it was held that the evidence was rightly admitted,
the Court observing:
The defendant has made the title of Batly and Armstrong (the previous bailiffs) part of his right, and if he gives evidence of the right of their election,
can that better be disproved than by a judgment of ouster wherein such election is declared to be void.
Reference may also be made to the provisions of the Specific Relief Act which expressly provides in Section 43, that declaratory decrees made u/s
42 shall not be binding except on the parties to the suit and those claiming under them.
As regards the present case, all that was decided in the previous suit was that the present plaintiff had not pleaded or proved in that suit that
there was any special usage as to the descent of the office in question which would render the ordinary Muhammadan Law inapplicable. The
previous judgment not being between the same parties does not in my opinion estop them from setting up such a special usage in the present suit
against the present defendant who was no party to the suit. In Srinivasa Ayyangar v. Arayar Srinivasa, Aiyangar I.L.R.,(1910) Mad., 488 the
learned Judges relying on a passage in Mr. Bigelow''s Treatise on the Law of Estoppel adopt the rule that judgments in personam establishing the
relations between parties are an exception to the general rule that judgment in personam bind only parties and their privies.
The judgment in Ramamurti Dhora v. The Secretary of State for India in Council I.L.R.,(1913) Mad., 141 after referring to some dicta of Lord
Coke which it is now admitted apply to judgments in rem, quotes the following extract from Bigelow:
If all who have a right to appear and be heard in a cause have been duly made parties, the judgment establishes a perfect and complete right
against all, as much as would a conveyance of a joint estate by all the parties interested. Judgment in an action strictly in personam, indeed, bind
third persons in that way; all that is necessary is that all those who have the exclusive right to litigate the cause are proper parties to it and that the
question should be determined without collusion. Judgment that A is debtor of B is an example.... Indeed, the difference between judgments in rent
and judgments in personam in any law, as regards their effect, appears at bottom to be only a difference of degree.
However attractive this doctrine may appear to be, it is in my opinion opposed to the provisions of the Indian Evidence Act, which was not
referred to either in this or the earlier decision, and in my opinion precludes the reception of the American rule in India. That rule is in my opinion in
conflict with the provisions of our statute Law. This is in effect the view taken by Jenkins, C.J., and Mookerjee, J., in Peari Mohan Shaha v.
Durlavi Dassya (1913) 18 C.W.N., 954.
I would therefore answer the question in the affirmative and overrule Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar I.L.R.(1910) , Mad., 483
and Ramamurti Dhora v. The Secretary of State for India, in Council I.L.R.,(1913) Mad., 141.
Spencer, J.
At the very commencement of the arguments I drew attention to Sections 40, 41, 42 and 43 of the Indian Evidence Act which appeared to me
to be exhaustive of the question of the relevancy of judgments other than those which operate as a bar to the trial of a suit or issue between the
same parties or their privies, under the law of res judicata contained in Section 11 of the Civil Procedure Code. These sections of the Evidence
Act have not been referred to in the Order of Reference or in the judgments of the two Courts below in dealing with the effect of the judgment in
the prior suit (O.S. No. 274 of 1911).
As regards Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar I.L.R., (1910) Mad., 483 and Ramamurti Dhora v. The Secretary of State for
India in Council I.L.R.(1913) Mad.,141 I agree with my Lord in thinking that they went too far in extending the principle of estoppel by judgment
beyond the limits of our Codes of Procedure and Evidence, and that they should be overruled as being in contravention of the principles laid down
by the Privy Council in Gokul Mandar v. Pudmanund Singh (1902) I.L.R., 29 Cal., 707 (P.C.) for the interpretation of codified law and as being
examples of the tendency since deprecated by their Lordships in Imambandi v. Mutsaddi (1918) I.L.R., 45 Calc., 878 (P.C.) of referring to
foreign decisions.
With the exception of the above two decisions of this Court and Boynapalli Venugopala Rau v. Nekkalapudi Venkatarayudu (1911) 10
M.L.T., 450, which followed the earlier of them, and Suppa Bhattar v. Suppu Sokkaya, Bhattar (1915) 29 M.L.J., 558 and Rahim Unnissa
Begam and Others Vs. M.A Srinivasa Aiyangar, , which were cases of privity of estate, our attention has not been called to any authoritative ruling
of a High Court in this country which would support the return of any other answer but an affirmative one to the question referred to us.
Kumaraswami Sastri, J.
The question raised by the reference is whether it is open to a party to reassert as against a third person a title which has been definitely
negatived in a previous suit against a contesting claimant. The judgment which is pleaded in bar is a judgment in a previous suit filed by the present
plaintiff against two other persons for a declaration that he was entitled to the Asari Sheriff and to recover from the Government the emoluments of
the office. It was held in that suit that the plaintiff did not prove title to the office and the suit was dismissed. The present suit is filed by the plaintiff
against the Government to recover a sum of Rs. 394 alleged to be due to him as the person entitled to the Asari Sheriff and to perform the services
connected therewith. The Government was paying the sums to the successful party in the previous litigation and sets up the judgment negativing the
plaintiff''s right as a bar to the suit.
The question is how far and under what circumstances can a judgment in personam be given the force of a judgment in rem or be pleaded as a
bar u/s 11, Civil Procedure Code, in cases where it is pleaded as a defence to an action by third parties who do not claim under or were not
represented by the parties to the original action.
So far as the statute law in this country is concerned, the case is governed by Section 11 of the Civil Procedure Code, which deals with res
judicata, Sections 40 to 44 of the Evidence Act, which deal with the relevancy of judgments of competent Courts, and Section 43 of the Specific
Relief Act, which deals with declaratory decrees.
u/s 11 of the CPC one of the conditions precedent to its application is that the former suit should be ""between the same parties or between
parties under whom they or any of them claim"" and the section is a bar to the trial of a suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in the previous suit. The section codifies the law in British India as regards the plea of res judicata
and, though the principle has been applied to proceedings other than suits (e.g., execution proceedings), the essentials required by the section as to
identity of the questions involved and parties have not been lost sight of. Section 43 of the Specific Relief Act enacts that a declaratory decree
passed under the Act is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are
trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees. Sections 40 to 44 of the Evidence
Act deal with the relevancy of judgments of Courts of Justice. Section 40 enacts that the existence of any judgment, order or decree, which by law
prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take
cognizance of such suit or to hold such trial. Section 41 deals with final judgments, orders or decrees of competent Courts in the exercise of
Probate, Matrimonial, Admiralty or Insolvency jurisdiction, or what is known as judgments in rem, and it states that such judgments, orders or
decrees are conclusive proof of the matters specified in the section; and by virtue of Section 4 of the Evidence Act, evidence cannot be allowed to
disprove the facts established by such Judgments Section 42 refers to judgments relating to matters of a public nature relevant to the enquiry and
the section states that such judgments, though evidence, are not conclusive proof of that which they state, thus allowing evidence to be given to
disprove the facts found in judgments. Section 43 says that judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42,
are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of the Act (e.g.,
Section 13). Section 44 enables a party to show that any judgment, order or decree which is relevant under Sections 40, 41 or 42, was delivered
by a Court not competent to deliver it, or was obtained by fraud or collusion.
In dealing with this question, I think the distinction between the effect of a judgment as preventing the Court from trying the same matter in issue
in subsequent proceedings and as simply affording evidence of the truth or falsity of the claim under consideration should be borne in mind. In the
former case, Section 11 declares that the Court shall not try the suit or issue and the plea is one in bar to the maintainability of the action. In cases
where there is no bar u/s 11, the Court has to try the issue and if the judgment is filed for the purpose of proving the plaintiff''s claim or for the
purpose of proving the defence to the action, it is relevant only as a piece of evidence, the probative value of which is regulated by the provisions
of the Evidence Act. If it is a judgment in rem, the Court u/s 41 of the Evidence Act will treat it as conclusive proof of the matters stated in that
section and u/s 4 it will prevent evidence from being given for the purpose of disproving the facts established by the judgment in rem. One has only
to file the judgment and the Court has no option but to decide the matter covered by it in accordance with the declaration in that judgment, even
though the other party may be in a position to prove facts to the contrary. So far as judgments in rem are concerned, I think the matter is codified
by Section 41 of the Evidence Act which states what judgments would be judgments in ram so as to make them conclusive proof of the
declarations granted by them. It seems to me that it is not open to us, in the face of the sections of the Civil Procedure Code, the Evidence Act and
the Specific Relief Act, to hold that judgments not falling within those sections would still be a bar to an action or afford conclusive proof. This, in
effect would be to create new kinds of res judicata and to destroy the distinction between judgments in rem and judgments in personam which has
been laid down in Sections 41 and 42 of the Evidence Act.
In Ramamurti Dhora v. The Secretary of State for India in Council I.L.R., (1913) Mad., 141, it was held that the provisions of Section 13 of
the Code of 1882 were not exhaustive, and a judgment was held to be binding on a person who was no party to it on the ground that third parties
having no interest in the property at the time of the litigation cannot, in the absence of any fraud or collusion, question the validity of a judgment
passed in a suit between the only parties interested in the property at the date of the previous suit. Reference was made to Bigelow on Estoppel,
5th Edn., page 44, where the learned author observes:
If all who have a right to appear and be heard in a cause have been duly made parties, the judgment establishes a perfect and complete right
against all, as much as would a conveyance of a joint estate by all the parties interested. Judgment in an action strictly in personam, indeed, binds
third persons in that way; all that is necessary is that all those who have the exclusive right to litigate the cause are proper parties to it, and that the
question should be determined without collusion.... Indeed, the difference between judgments in rem and judgments in personam in our law, as
regards their effect, appears at bottom to be only a difference of degree.
When a judgment is in personam I can find no authority either in English decisions or recognised works by English jurists for holding that it can
prevent persons, not parties or privies, from agitating the question except in cases of joint liability and covenants for indemnity. In The Natal Land
and Colonization Company v. Good (1868) L.R., 2 P.C., 121, it was sought to use a judgment between the mortgagor and the person from whom
he purchased the property which found that the sale was vitiated by fraud against the mortgagee who was no party to the suit. Their Lordships of
the Privy Council observed;
Now, the first observation which occurs is that this judgment was not admissible in evidence. It is the only proof of the fraud, but if it were ample
and sufficient proof of the fraud, it is res inter alios acta, and in no Court of Law or Equity in this country would it have been admitted at all, except
as between the parties to it, the respondents and Crowly, or if a foundation for it had been laid by evidence of some fraud having been committed,
by which the plaintiffs could be affected.
In Anderson v. Collinson [1901] 2 K.B., 107, it was held that a judgment in affiliation proceedings taken by the daughter of the plaintiff,
holding that it was not proved that the defendant was the father, was not final and conclusive in an action for seduction filed by the mother so as to
estop the defendant from denying that he was the father of the child as the parties to the two proceedings were different. In Spencer v. Williams
(1871) L.R., 2 P. & D., 230, Lord Penzance observed:
It is proper, therefore, where the question is raised between the same parties, or those claiming under them, that they should be estopped; but the
decisions give no authority for a proposition of a wider character--that a party who was not a party in the original litigation shall be bound by the
result.
The rule was held to apply though the interest of the parties was identical and the same question was involved, namely, whether a person was
next of kin and entitled to distribution of the assets of the deceased. In Lady Wenman v. Mackenzie (1855) 5 E. & B., 447, the plaintiff sued for
injury to her reversionary right alleging that she was entitled to a fishery in an arm of the sea and was in possession through her tenant, Fairman, and
that the defendant, who held the neighbouring property under one Gipps infringed her right. Fairman, her tenant, had filed an action to recover
damages for a similar injury against Gipps and the suit was referred to arbitration, and an award made in favour of Fairman. It was held that the
proceedings were not evidence as plaintiff:
did not claim by, through or under Fairman and, so far as she was concerned, the action of Fairman v. Gipp was ret inter alios acta,
and as the proceedings and award could not have been admitted as evidence against her, they are not admissible for her. In Petrie v. Nuttall
(1856) 11 Exch., 669, it was held that the conviction of a person for barring a highway would not bar a suit by the same person against another for
stopping up the road on the ground that the crown and subject were the parties to the indictment and therefore it was not between the two parties
to the action and that the judgment in the indictment may be given as evidence upon the trial of the issue as to whether the locus in quo is a public
highway; though it cannot be pleaded as an estoppel.
Estoppel must be mutual and it is difficult to see how a party not bound by a judgment can set it up in bar against a party to it.
Turning to the question as to whether a judgment in personam can acquire the force of a judgment in rem under any given set of facts, the only
authority which I can find for such a view is the passage from Bigelow already referred to and the decision in Cander v. Lord (1849) 2 N.Y. 269,
referred to in Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar I.L.R.,(1910) Mad., 483 as authority for the view taken in that case.
With all respect it seems to me that we cannot travel outside the provisions of Section 11 of the CPC and apply the rule of res judicata to
cases falling outside the limitation imposed by the section. In Gokul Mandar v. Pudmanund Singh I.L.R.,(1802) Calc., 707, their Lordships of the
Privy Council observe:
They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law and it is not the
province of a judge to disregard or go outside the letter of the enactment according to its true construction.
In Peari Mohan Shaha v. Durlavi Dassya (1913) 18 C.W.N., 954 (P.C.), the question arose in a suit between an auction purchaser, who
bought the right of one Durlavi Dassya, and her daughter Patteswari, whose suit u/s 283 of the Code (relating to suits by an unsuccessful claimant)
was dismissed. The suit was filed by the purchaser against the unsuccessful claimant for a declaration of her title and the decree in the previous suit
was sought to be availed of as concluding the matter in issue. Jenkins, C.J., and Mookerjee, J., were of opinion that the provisions as to res
judicata contained in Section 11 of the Code were exhaustive and that judgments in suits between third parties however cogent they might be as
evidence where the same matter is in question in a suit by or against a stranger did not operate as a bar to the suit u/s 11 of the Code, Jenkins,
C.J., observed:
It appears to me that, in these circumstances and having regard to the facts with which we have to deal in this case, the result of that litigation is at
least as cogent against the defendant as would have been an instrument of transfer executed by Patteswari, the ostensible owner, in favour of her
sons. I wish to make it clear that in the view I take, I cannot regard the decree in the previous litigation as amounting to res judicata which would
bar all possibility of evidence on the part of the defendant. It would, I conceive, have been open to the defendant to show that, notwithstanding that
decree, there were circumstances either vitiating the result of that litigation or affecting its result so as to prevent its operation in favour of
Patteswari''s sons.
The learned Judges were not prepared to follow the dictum in Ramamurti Dhora v. The Secretary of State for India in Council I.L.R., (1913)
Mad., 141, that the provisions of the CPC were not exhaustive and judgment not inter parties can make the question res judicata. This decision
was referred to and followed by the Chief Justice and Seshagiri Ayyar, J., in Second Appeal No. 1747 of 1919. The learned Judges were of
opinion that the provisions of the Code as to res judicata were exhaustive and that a judgment not between the same parties or their privies was
only evidence of title. They were not prepared to follow Ramamurti, Dhora v. The Secretary of State for India in Council I.L.R., (1913) Mad.,
141 and Suppa Bhattar v. Suppu Sokkaya Bhattar (1915) 20 M.LJ., 558, on the ground that the attention of the learned Judges was not drawn to
the decision of the Privy Council in Gokul Mandar v. Pudmanund Singh (1902) I.L.R., 29 Calc., 707 (P.C.). In the Ramnad Zamindar v.
Dorasami I.L.R., (1884) Mad., 341, which related to a monthly allowance, it was held that a litigation as regards the right to receive the allowance
would not estop the zamindar from putting the party claiming it against him to the proof of his title on the ground that he was not a party to the
previous litigation. So far, therefore, as the CPC is concerned, I do not think that the trial of a suit or issue can be barred because of an
adjudication in a prior suit or proceeding to which the plaintiff was not a party or privy.
Turning to the Evidence Act, I have already pointed out that Sections 41 and 42 draw a distinction between judgments in rem and judgments in
personam, and it seems to me to be clear from the sections that a judgment which does not fall within Section 41 can only be evidence but cannot
be used for the purpose of preventing the other side from proving facts which he sets up.
It is not open to us to import considerations as to convenience in dealing with matters which have been codified and dealt with by the Evidence
Act, however attractive the theory may be and however much one would like to have the principle embodied by the legislature in the Codes. It is
no doubt true that there are decisions of this Court which adopt the view of Bigelow as to judgments in personam creating an estoppel as against
strangers [see Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar I.L.R.,(1910) Mad., 483; Ramamurti Dhora v. The Secretary of State for India in
Council I.L.R., (1913) Mad., 141; Suppa Bhattar v. Suppu Sokkaya Bhattar (1915) 29 M.L.J., 558; and Boyinapalli Venugopala Rao v.
Nekkalapudi Venkatrayudu (1911) 10 M.L.T., 450. In the last of these cases it was held, that a decision between the plaintiff and another person
that the latter is a co-proprietor with him is conclusive on third parties where the contention raised by them depends on the relationship between
the plaintiff and such person and the learned Judges followed Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar I.L.R., (1910) Mad., 483; but they,
however, observed that the rule that makes the decision conclusive on third parties was not the rule of res judicata and they based their decision on
the ground that it would be intolerable to hold that, when the relationship between the two parties have been determined by litigation between
them, other persons can contend that one of them has not the right against the other which he has been held to have.]
With all respect it seems to me that these decisions do not take into consideration the effect of the provisions of the Evidence Act and the
limitations imposed by a consideration of those sections. To hold that a judgment which does not fall u/s 41 is conclusive proof would be to act in
direct contravention of the provisions of Section 42, which declares that judgments orders or decrees, other than those mentioned in Section 41,
are relevant but not conclusive proof.
It seems to me that where a judgment in personam is pleaded, its legal effect and probative force will depend upon the facts of each case. As
pointed out by Sir Lawrence Jenkins in the case I have referred to, the judgment of a competent Court, whereby a declaration is made as regards
property in dispute, would have the force of a conveyance by the other parties to the suit in favour of the successful litigant. Where, therefore, all
the parties interested in the Immovable property or in the right in contest have been parties to the previous litigation it may be that the judgment
obtained in the previous litigation would render it impossible for persons to get rid of the effect of the judgment. But this is not because the
judgment constitutes res judicata or judgment in rem. The difficulty would be analogous to the difficulty of a person who wants to impeach the title
which is conferred on his opponent by all the persons who could have a legal interest in the property with the additional fact that when a judgment
is relevant it is not open to a party to show that as between the parties the conclusion arrived at by the Judge is wrong and is not warranted by the
evidence. Suppa Bhattar v. Suppa Sokkaya Bhattar (1916) 29 M.L.J., 558 may be supported on the ground that all the parties interested were
parties to the previous litigation in favour of one of them. Cases where jus tertii is set up are really no exceptions to the rule. In all cases of jus tertii
the person who sets up the rights of a third party is bound to prove that the third party has or had the rights alleged and it is always open to the
other party to displace the title of the person so set up by showing that he was a party to the litigation which has negatived that title. Whatever
would estop or bar the persons whose title is set up must also bar the person pleading jus tertii whether the estoppel is by record, deed or in pais.
This is the principle on which R. v. Hebden (1738) Andrews, 388 referred to by my lord was decided. The defendant relied on his right to the
office of bailiff owing to his having been elected by two former bailiffs. A judgment was produced in which the right of the persons whom he set up
was negatived and it was held that having made the title of the previous bailiffs part of his right, there could be no better evidence in disproof than
the judgment where their rights were negatived.
I would hold that the decision in the previous suit is not conclusive but is only evidence and that it is open to the plaintiff to establish his title as
against the Government and I would answer the question raised by the reference in the affirmative.