Authored By : O Kinealy, Macpherson

O Kinealy and Macpherson, JJ.

1. It appears that, previous to the present suit, there wasa suit between the same parties in which the plaintiffs sought to eject thedefendant.

2. That suit was dismissed, but in the course of the trial,the Court came to a decision upon the nature of the defendants holding.

3. In the present suit, the plaintiffs seek, anew, torecover possession of the land after notice to quit, and the lower Court hasheld that the decision arrived at by the Court in the previous suit is bindingbetween the parties; but that as in the previous suit no issue regarding thequestion of estoppel by conduct was raised, the defendant is not precluded fromraising it in the present suit; and on that ground judgment has been given infavour of the defendant.

4. The plaintiffs have appealed, and they urge that theprevious decision is, as has been held by the Court below, res judicata, andbeing res judicata that Court was precluded from going behind the previousdecision and taking notice of the question of estoppel. They further contendedthat the inducement was too remote to affect the conduct of the defendant, andthat the Subordinate Judge was wrong in holding that there was an estoppel byconduct.

5. This last is a question of fact with which we are notcompetent to deal. The Judge has declared that "it is clear that LallMohan by his words and conduct induced the appellant to believe thatPanchoowris interest in the property was of a permanent character and to partwith a large sum of her money in consequence of that belief for purchase of theland."

6. In regard to the first question raised by the appellant,namely, whether the decision arrived at in the previous case is res judicataand binding between the parties, we have come to the conclusion that it is not.

7. No doubt it has been held by a Full Bench of this Courtthat, even where the defendant does not get the issue decided against himinserted in the decree, it is binding between the parties in a subsequentlitigation. But this procedure was not followed in the case of Run BahadoorSingh v. Lucho Koer L.R. 12 I.All. 23 : I.L.R. Cal. 301 and in regard to that^hen-Lordships state as follows:

The widow has not appealed against the decree, nor couldshe, because it is in her favour. But she has appealed against the finding thatthe brothers were joint in estate. It may be supposed that her advisers wereapprehensive lest that finding should be hereafter held conclusive against her.This could not be so, inasmuch as the decree was not based upon it, but wasmade in spite of it.

8. Here, in the former suit between the present parties, thedecree dismissing the suit was not based on the finding adverse to thedefendant in that case, but in spite of it. We think, therefore, after lookingat the decision of their Lordships in the Privy Council, that the previousdecision is not binding between the parties in this suit.

9. Further, we are of opinion that, even if we come to anopposite conclusion, the respondent is correct in saying that the issue thendecided was not an issue regarding any estoppel by conduct.

10. What was decided there was, what was the right to theproperty, not whether the plaintiffs are estopped by their conduct fromasserting their right if it existed.

11. From this point of view also we think the decision ofthe lower Court was correct.

12. The appeal is therefore dismissed with costs.

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Nundo Lall Bhuttacharjee and Ors. vs. Bidhoo Mookhy Debee (09.03.1886 - CALHC)