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Judgment
The appellants in this case were the defendants in O.S. No. 21 of 1903 on the file of the Subordinate Court, Madura West. The respondent,
who was the plaintiff in that suit, obtained a decree against the Appellants for certain lands together with mesne profits from the date of the suit to
the delivery of possession. The respondent obtained possession in execution as well as mesne profits from the 30th July 1903 (date of the plaint) to
the 13th December 1904. The decree in O.S. No. 21 was reversed by this Court on appeal. The appellant obtained re-delivery of the properties
in question and re-payment of the amount he had paid as mesne profits. The present application is for the mesne profits during the time that the
respondent was in possession, that is, from the 13th December 1904 to the 9th November 1910. "" The dispute relates to the profits of items Nos.
1, 2, 5, 6, 7 and 8. The Subordinate Judge disallowed any profits for items Nos. 1, 6 and 7 on the ground that they were uncultivable lands. He
also held that three fourths Kuli of item No. 2 was cultivable and 13 kalis of item No. 5 was not cultivable- He allowed profits on the cultivable
lands at 7 kalams per kuli for punja and 10 kalams per kuli for nanja lands. Item No. 1 alone was originally punja, the remaining items being
punjah.
The first point argued by Mr. Venkatrama Sastri on behalf of the appellants is that the respondent is estopped from contending that any of the
lands now held to be uncultivable by the Subordinate Judge were really of that character and that moreover the question whether they are
cultivable or not is res judicata by reason of the order of the Subordinate Judge in E. P. No. 67 of 1905 in which the respondent obtained
judgment for mesne profits against the appellants between the date of the plaint in O.S. No. 21 and the date of delivery of possession to the
Respondent. These pleas arise out of the circumstance that, in E.P. No. 67 when the possessions of the parties were the reverse of what they are
now, their respective contentions were exactly the opposite of what they are now; that is, while the respondent then urged that all the lands were
cultivable, the appellants pleaded that those now in dispute were all waste and uncultivable. After a Commissioner had reported on the question,
the Subordinate Judge held that the lands which have now been held to be uncultivable were cultivable with reasonable diligence and awarded
mesne profits to the respondent for the period in question. It is admitted that there has been no alteration in the character of the lands after the
respondent obtained possession in execution. With respect to the first contention of estoppel, apart from the bar of res judicata, the argument
urged is that a party cannot be permitted to take up inconsistent positions in the course of the same litigation and to profit by doing so. The
respondent retorts by saying that the appellants are equally estopped from adopting a position inconsistent with what they assumed in E. P. No.
We are unable to uphold this argument of estoppel. The rule against a party being allowed to take up inconsistent positions has really no
application to the circumstances of this case. It applies only where a party seeks to defeat his opponent by successive inconsistent positions as in
Ekabbar Sheik v. Hara Bewah (1910) 13 C,L.J. 1 or when having obtained a benefit by adopting one position he afterwards tries to assume a
different and contradictory position while retaining the advantage already obtained by his former position. See Halsbury''s Laws of England Vol. 13
p. 364; Black on Judgments Vol. 2 para 632 where the author observes, "" But it is held, in some of the cases, that a party who alleges but fails to
establish a certain state of facts is not estopped in a subsequent suit between the same parties, and concerning the same subject matter from
alleging a different and inconsistent state of facts."" The appellant in this case failed to prove the contention he urged in the respondent''s previous
application for mesne profits. The respondent seeks to obtain no advantage under the order on that application as he has paid back the amount got
by him from the appellants in obedience to that order.
We are also of opinion that the argument of res judicata must equally fail. The parties then occupied positions which were the reverse of their
present contentions. The rule of res judicata cannot apply in such a case. It is, no doubt, true that it is immaterial in determining the applicability of
the rule that the petitioner in the one case was a respondent in the other, provided their respective contentions are the same. But the basis of the
principle is that the parties had the opportunity of fighting out their present quarrel on a previous occasion. The doctrine is not based on the intrinsic
effect to be attached to an adjudication by the Court alone but on a rule of public policy that a question which has been once fought out between
the parties should not be re-agitated between them again. It necessarily involves that the case of both the parties was the same on both the
occasions. A party against whom a judgment has been rendered is not permitted to show that it is erroneous whether as plaintiff or defendant in a
subsequent proceeding, but not a party in whose favor it was rendered; the latter may be prevented from doing so, where to permit it will
contravene the principle of not allowing a person to derive an equitable benefit by adopting inconsistent positions; but the principle of res judicata
has no application to such a case, except where the subject matter of the two proceedings and not merely a point at issue is the same. It would be
extraordinary to hold that a party is concluded by a decision against his adversary. An illustration of the unreasonableness of such a view is
afforded by the manner in which the finding in E. P No. 67 was arrived at with regard to item No. 1 in this case. The Commissioner whose report
was adopted by the Subordinate Judge based his conclusion with regard to the character of the item, on the ground that the 2nd defendant, one of
the present appellants, did not do what it was essential for his case that he should do, namely, to point out pariah No. 14. Can he be permitted to
say that a finding based on his failure to do something should be availed of by himself against his opponent whose interest then was to disprove his
contention? We are of opinion that it would be unreasonable to do so. We disallow this contention also.
On the merits, we see no reason to differ from the view taken by the Subordinate Judge who has fully examined the evidence in the case. We
agree in the reasons he has given for his finding.
The respondent has presented a memorandum of objections claiming the value of certain improvements made by him between the dates of the
decree of the Subordinate Judge in O.S. 21 and the judgment of this court in appeal reversing it. We cannot accept the contention that a party to
the litigation is entitled to receive for the improvements made by him pendente lite with the full knowledge of the risk he runs in doing so. It cannot
be held that he made the improvements bona fide when he was bound to be fully aware that the decree that he had obtained might be reversed in
appeal. No authority has been cited which would justify a contrary view. The rule laid down in Mathunsa Rowthan and Others Vs. Apsa Bin, with
regard to an auction purchaser who is not a party to the suit being entitled to compensation for improvements made by him when he is
subsequently ousted from possession on account of the sale being set aside, is not applicable to a party to a litigation concerning Immovable
property making improvements during the progress of the contest between the parties. The Privy Council has held that a party to a suit who
purchases properties in court auction will not have the privileges of a stranger purchaser. See Zainalabudinkhan v. Muhammad Ashgar Ali Khan
ILR (1887) A. 166. See also Sadasiva Aiyar v. Muthusabapathi Chetty ILR (1881) M. 106. We therefore disallow the memorandum of
objections also. Both the appeal and the memorandum of objections are dismissed with costs.