1. The chur to which this appeal relates has had a chequeredhistory, The land was resumed by Government in 1828, and the first Settlementwas made in 1840. It was found to comprise an area of 36,652 bighas, and out ofthis area 23,498 bighas were accretions to Eleven mouzahs, Khairtola,Baliadoba, Chainpara, Bahadiar, Majhdiar, Koldiar and Nayadiar, while theremainder formed accretions to twelve mouzahs, of which it is necessary tomention only two, Ramkrishtapur and Poolberia. The Rajahs owned the entireinterest in the last twelve mouzahs, while in the other seven mouzahs theyowned half, and the Choudhuris of Mathurapur owned the other half. When thesettlement was made, there were two mahals formed, Nos. 814 and 815, No. 814consisted of half the land of the seven mouzahs in which the Putia Raj and theMathurapur Chaudhuris were joint owners plus the land that had accreted to thetwelve mouzahs owned exclusively by the Raj, and No. 815 of the other half ofthe seven mouzahs. The settlement was made with the Putia Raj of No. 814 andwith the Choudhuris of No. 815.

2. When that settlement expired in 1860, it was found thatthirteen out of the nineteen mouzahs had been washed away and that the arearemaining to No. 814 was 6,989 bighas, and to No. 815, 4,880 bighas.

3. In 1870 the area had been farther reduced; the area wasfound to be only 459 bighas, and half of this was settled as No. 814 with Raj,and the other half as No. 815 with the Chaudhuris.

4. In 1879 proceedings for a fresh settlement were begun.The area was then found to be 4,021 bighas, afterwards raised to 5,763 bighas,forming part of Mouzahs Majhdiar, Kolidar and Baliadoba. Again this area wassettled, half as No. 814 and half as No. 815, and as Messrs. Watson & Co.,the predecessors interest of the appellant Company, had bought two annas of theproprietary interest in No. 814 from the Raj, the settlement was made with themand the Raj jointly.

5. Shortly after the settlement had been made, it was foundthat the river had thrown up a very large new area, which on measurement provedto be as much as 18,750 bighas. This area was formed into a new estate,numbered 3514, and was settled with Messrs. Watson & Co., as the persons inactual occupation of the land, although it was recognised at the time, as it isconceded now, that the area actually formed parts of the original estates Nos.814 and 815. Claims to settlement were made by the Raj and by the Chaudhuris,but they were rejected on the ground that Watson & Co. were actually inpossession. This settlement was for a term of seven years, to expire on thesame date as the settlement of Nos. 814 and 815. In 1891 the Chaudhuris and theRajas instituted suits in the Court of the Subordinate Judge about this estateNo. 3514. The suits were numbered 5 and 6 respectively of 1891. As the presentappeal does not touch the Chaudhuris estate, it is enough to say that theirsuit followed the same lines as that of the Rajas. The Rajas plaint gave abrief history of the chur, and then set out that the Revenue Authorities hadsome to a wrong conclusion in holding that they were not in possession of anarea of 13,020 bighas; it asserted that the Rajas were in possession untilNovember 1889, when Watson & Co., on the strength of the decision by theBoard of Revenue, entered into possession. The area was made up of half theland found to belong to Mouzahs Koldiar, Majhdiar, Baliadoba, Chainpara,Khairtola with the area given up to Watsons by the Collector (namely 1,558bighas odd) and the whole of the land found to belong to Ramkrishtapur andPoolberia, the two villages among the twelve, of which the names were given atthe beginning of this judgment. A remark was added to the plaint that Watsonsowned a share of 3 a. 13 g. 1 k. 1 kr. in the Torzi No. 814.

6. The cause of action was given as November 1889, when theplaintiffs said that Watsons entered into unlawful possession.

7. The prayers in the plaint were (a) for a declaration thatthe land in suit formed part of Touzi No. 814; (b) for a declaration that asthe land was in possession of the plaintiffs until the time of dispossession,the plaintiffs were entitled to get settlement from the Collector; (c) for adecree directing that the plaintiffs should be put in possession; (d) for mesneprofits from the date of dispossession until the date of recovery ofpossession.

8. The suit was decreed in plaintiffs favour in May 1894:on appeal it was remanded for the Secretary of State to be made a party, and itwas again decreed in August 1897. The defendants again appealed, and this Courtdecided the appeal in favour of the plaintiffs on May 30, 1899, but its decreewas not signed until March 20, 1900.

9. Meanwhile the term of the settlement made in 1887 hadsome to an end. The reduced estates Nos. 814 and 815 were settled as before forten years. A similar term was proposed for No. 3514, but as the civil suitswere pending the Commissioner ordered that it should be settled from year toyear and this was done until 1900, when in consequence of more land beingadded, a fresh settlement was made again with Watson & Co., to expire in1909, on the same date as the settlements of Nos. 814 and 815. In theCollectors proceedings reference is made to the pending suits, and thesettlement was "on condition that if the results of the civil suits beknown at any time during the period the terms of the settlement will at once bemodified accordingly." As this settlement was made ten months after thedecision in this Court, it seems unfortunate that the tenor of the judgment wasnot made known to the Collector.

10. It appears that no steps were taken by the Putia Raj toenforce the decree until February 3, 1902 when execution proceedings wereinstituted in the Court of the Subordinate Judge. As the result of those proceedingsa Commissioner was appointed, and he went to the chur and purported to deliverpossession to the decree-holders in August 1902 and September 1903. Thedecree-holders did not deposit the fees required for a Commissioner todetermine mesne profits.

11. In November 1903 the Raj filed a petition before theCollector about the settlement of Touzi No. 3514; the petition alludes tonotices requiring the Raj to take settlement, and to a previous petition askingfor the settlement of No. 3514 to be made along with Touzi No. 814"according to the final decree of the Honourable High Court," andobjecting to the tenants and officers of Watson & Co. being entered atlower sums than those actually paid. This petition was ordered to be filed.

12. It is not clear what happened after this, But in August1904 proceedings began before the Collector for the amalgamation of those partsof Touzi No. 3514 which had been declared by the High Court to belong to TouziNos. 814 and 815 with their parent estates, and eventually in April 1906, theBoard of Revenue ordered that half of the areas found in the Mouzahs ofMajhdiar. Koldiar, Chainpara, Baliadoba and Khairtola, and the entire areasfound in Ramkrishtapur and Poolberia should be amalgamated with Touzi No. 814.In May 1905 a kabuliyat was executed in respect of Touzi No. 814 by Mr.Gragson, who had then bought Watson & Co.s interest, and by variousmembers of the Putia Raj family. Similar kabuliyats were executed on July 22,1910, and February 9, 1912. It may be noted here that in these two kabuliyatsthe Midnapur Zamindari Company appears in place of Gragson. At the time ofexecuting the second of these kabuliyats the plaintiff put in a petition sayingthat he did not waive his right to question an order passed by the Collector asto Watsons jote rights in the lands.

13. The order complained of was passed in 1909. In 1908proceedings were begun for a new settlement; while they were in progresssettlements from year to year were made, and the kabuliyat of July 22, 1910,just mentioned relates to one of those settlements. In the course of thoseproceedings an application was filed on behalf of the present plaintiff, whoseestate was then in the Court of Wards. The application was aimed at an entry inthe settlement record to the effect that the Midnapur Zamindari Company hadjote rights in the land. The Assistant Settlement Officer quoted a passage fromthe judgment of this Court in the suit of 1891, and said that in view of thatdecision he could not show the Company as having jote rights, but as theCompany was in possession he must show it as in possession. The Company thenappealed to the Collector of Nadia, and the Collector, Mr. Ezechiel, held thatthe Assistant Settlement Officer had misapplied the judgment of this Court anddirected that the Company should be entered as tenants with occupancy rights.The manager of Wards Estates wanted to appeal, but the Collector of Rajshahi,to whom he was subordinate, did not allow him to do so. Mr. Ezechiels orderwas dated September 20, 1909.

14. After the conclusion of the settlement, a kabuliyat wasexecuted by the Company, and the plaintiff and other members of the Raj familyfor a term expiring on March 31, 1920, as already mentioned.

15. On August 8, 1912, the plaintiff filed the suit fromwhich this appeal arises. He alleges that the High Court decree was executedand possession given. But to use the language of the plaint, "theplaintiffs have not in reality got possession of the decreed lands in properorder even in spite of their having obtained possession aforesaid, and thedefendant Company have illegally and without any right been still holdingpossession of the whole of the decreed lands on the ground of their havingobtained the property by transfer from Messrs. Watson & Co." It thenrefers to the recording by the Collector of the alleged jote right of thedefendants after and notwithstanding the decision of this Court, which was heldto be applicable only to the state of affairs existing when it was given. It accordinglyasks that it may be declared that the defendant Company have not the jots rightalleged by them, for partition and for a decree giving him direct possession ofthe share to which he is entitled on partition free of the alleged jote rightafter ejectment of the defendant Company. The latter does not now contest thesuit in so far as it is one for partition of the proprietary right; in thelands in suit. The Company asserts a tenancy right and denies that theplaintiff is entitled to any such declaration or possession of the land free ofsuch alleged tenancy as is claimed.

16. The learned Judge has decreed the suit, declaring thatthe defendant Company have no jote right in the lands decreed in the Title SuitNo. 6 of 1891, ordering a partition and decreeing that the plaintiff do getkhas possession in the lands given by demarcation according to the saidpartition.

17. A large number of issues were framed, including oneobjecting to the suit on the ground of misjoinder of causes of action. An objectionwas raised before us to the frame of the suit, which was an objection to thejoinder of causes of action, namely, whether the plaintiff could agitate thismatter of the tenancy in a suit for partition. It was argued that there cannotbe a decision in toil suit of rights subordinate to that of the co-sharers. Butwe held that that thin point could not now be gone into, as such an objectionshould have been taken in the Court of first instance and if not taken, must bedeemed to be waived. It is true that an objection was taken to misjoinder ofparties and senses of action but as appears from the judgment, it was ofdifferent character from that now urged.

18. The main argument in the appeal may be divided intothree heads: (a) objections in bar of the suit by the defendant Company; (b)the question whether this claim of jote right is or is not res judicata byreason of the previous High Court decision; (c) if there is no bar to thebearing of the suit and if there is no res judicata, have or have not thedefendant Company the tenancy right which they claim

19. We may say at once that it is not necessary to considerthis last issue, because the conclusion at which we have arrived is that thebars to the suit which the defendant Company set up are not established and thecontention of the respondents that the issue of tenancy right is res judicatais made out.

20. The arguments in bar of the suit are (1) that the suitis barred both under the provisions of Articles 14 and 142 of the LimitationAct; (2) that if the issue as to tenancy is res judicata, as the respondentsallege, their remedy is not by suit but by execution of the decree which, theysay, finally determined the question; (3) that the plaintiff is estopped bycovenant from disputing the appellants alleged tenancy right. It is then urged(4) that the question of tenancy right is not res judicata as found by thelearned Judge and that, that being so, both by title and possession theappellants are entitled to the tenancy which they claim.

21. On the question whether the appeal is barred under theprovisions of Article 14 of the Limitation Act, the fasts are as followes:--

Mr. Ezeehiels order on the appeal preferred by the MidnapurZamindari Co. against the order of the Assistant Settlement Officer was passedon September 20, 1909. The present suit was filed on August 8, 1912.

22. Mr. Ezeehiel said in his older that the Company had beenin possession of the land since 1887; that it had been recorded in theproceedings of 1895 as having rights of occupancy, and that in any case thejudgment in a suit of 891 could not affect rights acquired since 1891.

23. Argument has proceeded on the footing that this order ofthe Collectors must be set aside if the plaintiff is to obtain anything morethan his bare proprietary right, which be has obtained by being admitted tosettlement.

24. For the appellants it is urged that Article 14 of theLimitation Act applies to the case. That Article runs: "To set aside anyact or of an officer of Government in his official capacity, not hereinotherwise expressly provided for," and allows a period of one year. Ifthis argument is correct, the suit is barred by limitation so far at least asit seeks to set aside that order of the Collector. The plaintiff, however, urgesthat in Article 45 there is express provision for a suit of this nature. Itruns: "To contest an award under any of the following Regulations of theBengal Code: the Bengal Land Be venue Settlement Regulation 1822" It givesa period of three years. It is conceded that the order was passed underRegulation VII of 1822, and that the suit was instituted within three yearsfrom the date of the order. For even if this case falls under the BengalAlluvial Lands Settlement Act XXXI of 1858, that Act extends the Regulation toall settlements under the Act. The question, therefore, is whether Mr.Ezeehiels order is an award within the meaning of Article 45. We think it is.Section 93 of the Regulation provides that the Collectors decisions arejudicial awards and under section 33 awards may be made in arbitrations. Thedecision in Abdul Kadir v. Humdu Miah : 12 C.W.N. 910 seemsin point. We hold that the suit is not barred on the grounds stated. In ouropinion also the suit is not bad because there is no formal prayer to set asidethe order of the Collector, section 31 being relied on.

25. It is next argued that the plaintiffs are barred byArticle 142 of the Limitation Act, as it is alleged that they have not been inpossession within twelve years of suit, The decree of this Court, which wasdrawn up after reference to the Surveyor Ganerals Office, gave the Putia Rajrelief of three kinde, viz., a declaration that they were entitled to certainshares in seven villager; a declaration that they were entitled to recoverpossession of the lands to which they had been declared entitled; and adeclaration that they were entitled to recover mesne profits from November 1889to the date on which they recovered possession.

26. To take the last declaration first, as already pointedout the decree-holders in their execution proceedings did not deposit the feeswhich they were called on to deposit for an enquiry into mesne profits and theproceedings were dismissed for default on September 21, 1904. It has not beenshown that any further step was taken in this direction.

27. Regarding the other declarations a Commissioner wasappointed at the instance of the decree-holder. The Commissioners proceedingsoccupied a large part of the years 1902 and 1903. After demarcating the land bedelivered possession of the shares in the five mouzahs (Kaldiar, Majhdiar,Baliadoba, Chainpara, and Khairtola), that is (a), (b) and (c) of this Courtsdecree, on July 26, 1902, and of the shares in Foolberia and Ramkrishtapur, thatis id) and (e) of the decree, on June 20, 1903. In each case, delivery ofpossession was effected "by the usual modes of sticking bamboos and thebeating of drums, and by speaking aloud in Bengali, in the presence of a numberof persons of the vicinity, the terms of the Honourable High Courts decree andof the parwana of this Court."

28. As already mentioned, it is not clear what steps weretaken by the Collector, but the petition filed by the Putia Raj on November 17,1903, refers to notices being served on the Raj to take settlement of Mahal No.3514.

29. There can be no doubt therefore that before the end of1903 the decree holders had taken all steps necessary to enforce their rightsunder the decree so far as the decree related to their proprietary right.

30. The Question is whether they did all that they could,and ought to have done, to get direct and actual possession of the land freefrom the presences of the Company as occupancy raiyate and whether in fact theygot such possession. For if so, then the suit which was instituted on the 24thSeptember 1912 is within the period of twelve years.

31. On this and other questions it is important to enquirewhat it was that the respondents got on the execution of the High Court decree.This involves the question what it was that the High Court gave them. Forreasons stated on the issue of res judicata we are of opinion that the HighCourt decreed not only the right to get settlement but also a right topossession of the land free of the alleged jote rights of the appellants, whichwere expressly set up in that suit and negatived by this Court. Then did therespondents execute this decree It is admitted that execution proceedings asabove mentioned were taken. It is not denied that the decree, so far as itdeclared the proprietary right of the respondents, was executed and that so faras such co-proprietary right was concerned that what the decree-holder did waseffective. But it is said that even if the High Courts decree gave relief inrespect of the claim for jote right made by the appellants (which is denied)that the respondents did not execute the decree so as to displace theappellants possession as jotedar. This question is certainly open to argument,but the following facts induce us to reject the appellants contentions on thishead. For we have (in our view of the High Court decree) the facts that thisCourt declared the rights of the plaintiffs in that suit free of the allegedjotedar right; proceedings in execution were taken (except for mesne profitswhich were discontinued) with, we must presume, the object of getting what thedecree gave. And all that could be done was done. For the appellants could nothave been actually aviated from the property. They were co-proprietors andentitled to joint possession with the respondents. The plaintiff could only getrid of the Midnapur Company absolutely by a suit for partition giving himexclusive and direct possession; without that no actual possession could begiven because it was a case of an undivided share. The question is not freefrom difficulty owing to the fact that the proprietary and the alleged joterights were vested in same person. But on the whole we see no sufficient reasonfor reversing the judgment of the learned Judge on this point. He has held thatthe respondents obtained such possession in 1902-1903 as is an answer to thecontention that they have not been in possession within twelve years of suit.We, therefore, hold that the suit is not barred under Article 142.

32. It was then objected that if it be the fast that fullpossession was got in 1902 and 1903 in the execution, then. Bines theappellants are admittedly in possession, there is no allegation in the plaintof dispossession. It is true that the cause of action is stated as arising onthe date of execution, and not immediately thereafter. But the objection takestoo narrow a view of the matter, The substantial Question is that alreadystated, namely, whether the respondent executed the decree to the fall extentof the relief which (we hold) it gave him and got such possession as waspossible under the circumstances. Having regard to the above conclusions it isonly necessary to here note the appellants argument that if in 1802 and 1903the respondents did not get such possession as they are asking for in the soft,then the respondents should have proceeded by execution and that as three yearshave gone by they are barred. On our findings this does not arise.

33. A bar is next alleged to this suit in so far that,whilst it is denied that there is any ret judicata here, it is contended thatif there is res judicata, then the plaintiffs cannot sue but most proceed notby suit but by execution of the High Court decree, and that this execution isbarred. We have dealt with this matter of execution in its place. As regardsthe immediate point it is sufficient to Bay that the relief claimed in thepresent and earlier suit is not the same in so far as the suit is forpartition. Then the plaint in effect asks that the plaintiffs share onpartition should be made over to them free of the defendants alleged joteright. Since the last High Court suit a cloud was thrown on the plaintiffstitle in this respect by the subsequent recognition of the appellants allegedjote rights which they have themselves also affirmed. We are of opinion that ifthere is res judicata, there is no sash bar as the appellants contend. If thereis no res judicata, the appellants claim to be entitled to jote right by thesame title under which they have proprietary right. They claim to have joteright in the whole of estate No. 814 as it existed before its disappearance. Itis admitted that the appellants had jote right in 814 but whether the state ofthe appellants evidence is such (having regard to the finding of reformation)that there is no res judicata, they have established their alleged jote right,need not be considered having regard to our finding upon the issue of resjudicata

34. It is next argued on behalf of the appellant Companythat the plaintiff is estopped from challenging the status of the company astenants, on the ground that under the second term in the kabuliyat which heexecuted on February 9, 1912--the kabuliyat relating to the term that expiredlast March--he undertook to respect the recorded rights of raiyats and others.

35. So far as the suit claims partition there is no dispute,for it is not now contended that there can be no partition of a temporarilysettled estate as between co-ordinate holders. But so far as the suit calls in questionthe defendant Companys alleged tenancy right, it is contended for theappellants that the respondent is estopped by the covenant in his kabuliyatexecuted on the 9th February 1912, from disputing the rights of the defendantCompany as tenants, which were in fast recorded, the Company having beenentered as tenants with a right of occupancy. The ordinary rule in the case ofsuch a covenant is that the person entering into it is bound to recogniserights so recorded even if such rights were incorrectly recorded and had noreal existence. The appellants do not rely on the covenant as conferring abenefit on them as third parties but as a question of title, that is, certainlands were settled on them on certain conditions: and what was given to the respondentswas a right which was determined by the kabuliyat in a particular way, namely,the right to hold the lands in settlement subject to the recorded rights oftenants. It is, however, to be observed that in this case the respondentswished to appeal against the record but sanction to appeal was refused and thekabuliyat was executed under protest subject to the right to question thecorrectness of the record in the Civil Court. We are unable to hold that inthese circumstances the respondents are estopped as contended.

36. We now pass to the issue of res judicata, the facts asto which are as follows;--

In the plaint in Title Suit No. 6 of 1891, the plaintiffs,i.e., members of the Putia Raj family, alleged that the Revenue Authorities hadbeen wrong in holding that Watson & Co., and not the plaintiffs, were inpossession of the land that was being settled in 1887, and that Watson &Co. dispossessed them by virtue of the order of the Board of Revenue that thesettlement was to be with Watson & Co. They admitted that Watson & Co.owned an undivided share of 3 annas odd with themselves in the Mahal. Theirprayers were as follows:--

(a) for a declaration that the land appertained to Touzi No.814;

(b) for a declaration that they were entitled to get settlementfrom the Collector;

(c) for recovery of possession;

(d) for mesne profits, provisionally estimated at Rs. 1,692.

37. The defense was (a) that some of the land in suit, viz.,1,558B. 1K, 10Ch. had accreted to their estates churs, Hogulberia and Niamatpar,as held by the Revenue Authorities; (b) that the remainder had accreted totheir estates Udainagar, Temadia and others; (c) that they had acquired a rightby adverse possession, and (d) that the plaintiffs could not in any eventobtain khas possession. Other pleas were raised, but we are not concerned withthem.

38. It was found that the plaintiffs claim was barred as tothe 1,558-1.10 by adverse possession for twelve years, But that the remainderof the land was an accretion to Mahal No. 814 and that the defendants had notbeen in adverse possession for the statutory period. These findings of thefirst Court were upheld on appeal.

39. Regarding khas possession an issue was framed asfollows:--

"Are the plaintiffs entitled to recover khas possessionof the land in suit Have the defendants any jotedari right in the land"But on December 28, 1893, the plaintiffs Pleader made a statement in thesewords: "The plaintiffs claim only a right to the settlement of thedisputed land and no other right." On the same day the defendants Pleadermade a statement, and asserted that in any event khas possession could not begiven because the defendants had jotedari right in the land. As a result of thestatement made by plaintiffs Pleader the learned Judge did not decide theissue. He said: "The plaintiffs do not ask for khas possession. Hence itis not necessary to enquire whether the defendants have a jotedari right in thelands."

40. Watson & Co. preferred an appeal, and raised thequestion that the Judge had left open, in the eighteenth and nineteenthparagraphs of their memorandum. It will be seen from these grounds that theappellants, who now contend that the decision of the issue was unnecessary,expressly invited this Court to decide it. The 18th of their grounds of appealran as follows:--"For that the learned Sub-Judge, having held that it wasnot necessary to enquire whether the appellants have jotedari right in the landin suit, has erred in giving a decree for possession of the came to the plaintiffs."The 19th ground was equally explicit and ran: "For that it should havebeen held that the appellants are entitled to hold most of the disputed landsin jote rights and that the plaintiffs have no right to evict them from thesame without determining their tenancy in the manner prescribed by law."The point was pressed in argument before this Court. But it was held that therewas no evidence in support of the contention.

41. The decree that was drawn up in this Court made noexpress mention of the decision on this point in terms: it affirmed the firstCourts decree with modifications intended to remove uncertainties.

42. In the present suit the plaintiff says that the decreewas to the effect that the Raj should get possession after ejectment of Watson& Co., that Watson & Co. were ejected and possession delivered. Thestatement continues: "But the plaintiff has not in reality got possessionof the decreed lands in proper order even in spite of their having obtainedpossession in manner aforesaid, and the defendant company have illegally andwithout any right been still holding possession of the whole of the decreedlands."

43. The prayers are as follows:--(a) for a declaration thatthe Company has not, never has had and never can have jote rights in the landscovered by the decree in Title Suit No. 6 of 1891; (b) for a partition of thoselands and of the land in Touzi No. 814 as it was in 1891; (c) for possession ofthe separate share of 5a. 16g. 2k. 2kr., to be allotted to the plaintiff by theejectment of the defendant company; and (d) for an account and mesne profits,etc.

44. There is no dispute about the identity of the land nowin suit with the land of the previous suit.

45. Now had the matter rested where the Subordinate Judgeleft it, no such Question as we have to discuss would have arisen. Whether thesuit might and should have been properly determined without entering into thequestion of the tenancy right as the plaintiff apparently wished to do, we neednot now enquire. For in fast (as we have seen) the present appellants directlyinsisted on the point being tried and alleged that the first Court should havedone so. It was contended before us that whatever the appellants might havedone in this respect, the issue in fact was not a necessary or proper one to betried in that suit and that it is open to us to say so. But we most see firstwhether this Court adjudged otherwise, that is, whether this Court having thequestion before its mind decided that the issue did arise. If so, that decisionwould be as math res judicata as the final determination of the issue on themerits. If we are of opinion that the Court did so decide, we are not concernedto see whether it did so rightly or not, and indeed cannot do so. Now this isnot a case, as not infrequently happens, where incidentally some point isdecided which is not necessary, which was not of first rate importance orspecially brought to the notice of the Court. The plaintiff has excluded thequestion by the statement of his Pleader. The first Court, therefore, expresslystated that it could not decide it. The defendant, the present appellant, asexpressly urged that the Judge was wrong in not deciding this question eventhough his action was based on the plaintiffs advisers statement, and heasked this Court expressly to decide it. As this Court did so, it seems to usthat we ought to assume, not that it did something which was unnecessary, butthat, in so far as it decided the point raised, it must also have decided thatthe then defendants objection that the point should be tried was a good oneand that the iseus was one which did arise in the suit.

46. Then what did the learned Judges say a Maslean, C.J.,after disposing of the question of reformation, sets out the three contentionsof the then defendants and present appellants, the third of which was that thedefendants are entitled to jotedari rights. On this the Chief Justice held thatno such rights were anywhere recorded, nor was there any evidence of suchrights. It was, he said, for the then defendants, the present appellants, tomake out such rights but that they had not succeeded in doing so. Banarji, J.,states the contention that the plaintiffs cannot claim khas possession as thedefendants had jotedari rights in the greater part of the lands in suit."He says that that was part of the defense which it was necessary to consider.He then points out that the first Court did not consider the question ofjotedari right necessary to be determined, and expressly refers to the groundof appeal that the first Court ought to have determined the question of tenancyright and held that the possession to which the then plaintiff was entitled wassubject to the tenant right of the present appellants. It is quite clear fromthe above that the then defendants case was present to the minds of the Court.The learned Judges then proceeded to decide it and held that there was no joteright. If the learned Judges had thought the issue unnecessary, they wouldpresumably have said so and not decided it. But they did decide it. Can it besaid under these circumstances that the point was not raised, that the Courtdid not consider it to be a necessary issue and did not impliedly decide thatit was necessary and did not decide the issue on the merits We think theanswer is clearly in the negative. Then, what of the decree. It is true that itdoes not expressly refer to the tenancy right, but it gave a decree forpossession What then did it intend to give For the appellant, it is said thatall that was given was possession as co-proprietor and that the questionwhether such possession was free of the alleged tenancy right was leftuntouched. But if so, what was the necessity of discussing the question in thejudgment We ought not, we think, to assume that the Judges discussed aquestion which was irrelevant to the case and then (sic) no relief in respectof (sic) but rather that as they had (sic) and (sic) alleged tenancy right inthe judgment they intended to and did give a decree which should give effect tothese findings. If so, the learned Judges decree in effect gave to therespondents before as a light to the lands in that Bait free of the allegedtenancy right claimed. We are of opinion, therefore, that the issue as to theappellants right is res judicata. As we are of opinion that the appellantshave established no bar to the hearing of the suit, it is unnecessary to discuswhether notwithstanding the finding of the High Court on the 30th May 1899 theappellants have on the fasts established the alleged right in this suit.

47. In our opinion, then, the decree of the SubordinateJudge should be affirmed. The appeal, therefore, fails and is dismissed withcosts.

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Midnapore Zemindary Company Limited vs. Kumar Nares Narain Roy and Ors. (17.01.1921 - CALHC)