Wassoodew, J.
1. The facts giving rise to this appeal, so far as a, statement thereof is necessary for the present purpose, are these. The appellants who were holders of certain talukdari estate in the District of Ahmedabad filed a suit in 1900 to obtain a declaration regarding their title to a share in that estate in a civil Court. That title was confirmed by the High Court on August 6, 1907. The provisions of the Gujarat Talukdars' Act (Bom. VI of 1888) regulated the procedure in regard to the partition of the estate, and the appellants, therefore, applied in 1916 to the Talukdari Settlement Officer for the separation of their share in the said estate. To that petition there were numerous parties, the persons interested in the estate being not less than 65. They were, therefore, impleaded before the said Officer for the purpose of effecting a partition. In course of time before the application was decided some of them died, but through inadvertence the names of their legal representatives were not brought on the record. In consequence the Talukdari Settlement Officer dismissed the application in 1923. An appeal was taken to the District Court under the provisions of Section 16 of the Gujarat Talukdars' Act, and the District Judge on January 11, 1926, reversed the order of the Talukdari Settlement Officer and directed the heirs of the deceased respondents to be put on the record and the partition proceeded with. Upon that order the matter was taken up by the First Class Subordinate Judge of Ahmedabad who had been appointed by the Local Government as Talukdari Settlement Officer. On the ground of convenience the enquiry was transferred to the Court of the Subordinate Judge of Dhandhuka who was also a Talukdari Settlement Officer. After necessary formalities several issues were raised for determination before that Officer, all of which except one were decided in favour of the appellants on September 26, 1930. With regard to that one issue, it was held that as the certified dopy of the High Court's decision which confirmed in 1907 the decision on title of the Court of first appeal was not produced by the appellants or their pleader, the partition could not be proceeded with. The application for partition was accordingly dismissed with costs.
2. Against that order an appeal was taken to the District Court under the provisions of Section 16 of the Gujarat Talukdars' Act on November 4, 1930. In the course of the service of the notices of appeal it was discovered on July 15, 1931, that certain parties were dead and accordingly the matter was reported by the bailiff to the District Judge for orders. Thereupon on October 21, 1931, the appellants brought to the notice of the Court that certain respondents had died in the course of the proceedings before the learned Subordinate Judge, that they had in proper time applied for the substitution of the names of their legal representatives and their application was granted, that notwithstanding that fact the necessary entries of the names of the deceased parties were not made and that in the filing of the appeal they were misled by the copies of the proceedings furnished to them by the Court of the first instance. Consequently the appellants made the following prayer to the Court:-
We therefore pray to the Honourable Court that the names of the heirs of the deceased respondents be written as under in the said appeal and amendments be made accordingly in the memo of appeal and an order be made to issue notices which may be served through the Court on the heirs.
It was also brought to the notice of the Court that respondents Nos. 20, 30 and 34 had died during the pendency of the prior appeal of 1923 to the District Court, and that although the Court ordered the substitution of the names of their heirs, the necessary corrections were not made. It was also stated that two persons, viz., respondent No. 12 Matra Sura and respondent. No. 38, were the only persons who had died pending the appeal on February 10, 1931, and July 25, 1931, respectively, and permission was sought to substitute the names of their heirs.
3. Upon that petition the learned District Judge on October 21, 1932, made a note to the effect that as the names of the deceased respondents other than the two who had died before the appeal were not brought on the record and that as no application was made within time to bring the heirs of the legal representatives of respondents Nos. 20, 30, 34 and 38 on record, the entire appeal abated. He therefore following the ruling in Gujrati v. Sitai Misir I.L.R. (1922) All. 459 passed a formal order declaring the appeal to have abated and left it to the appellants to have the abatement order set aside.
4. Thereupon the appellants on November 10, 1932, brought to the 'notice of the learned District Judge the misunderstanding in regard to the prayer in their former petition and explained its purport and pointed out that upon their petition there was no justification for the order of abatement. They also pointed out that the application for the substitution of the names of the heirs of the deceased respondent No. 38 was in time and that the delay in regard to a similar application for the substitution of the names of the heirs of deceased respondent No. 12 was due to excusable circumstances. Those circumstances were that the appellants manager was an old man of eighty years, that the appellants were residing at Dhandhuka about thirty miles from Nagadka where the deceased respondent lived, and that having regard to the large number of respondents it was not possible to keep in touch with all so as to enable their manager to inform the Court in time of the death of any one of them. Accordingly it was prayed as follows:
Under these circumstances we humbly pray that this Honourable Court will be pleased to order the memo of appeal to be amended and cancel or set aside the order of abatement and grant our application (exhibit 16), and pass such other orders as may appear just and proper in the interest of justice and order further proceedings in the appeal to proceed according to law.
Accordingly all the persons were served and the learned District Judge, after hearing them on February 5, 1934, found that no sufficient cause had been shown for excusing the delay in regard to the substitution of the names of the heirs of respondent No. 12 and that there was no reason to set aside the abatement as it was a partition suit in which all the sharers had to be on the record. Against that order this appeal has been filed by the original petitioners, plaintiffs.
5. Mr. Shah on behalf of the respondents has raised a preliminary objection that no appeal lies from a decision of the District Court under Section 16 of the Gujarat Talukdars' Act. He has relied on the full bench ruling in Amar-sangji Dungarji v. Deepsingji Patvabhai I.L.R. 1924 Bom. 442 : 27 Bom. L. R 345 In that case the plaintiff-talukdars had applied to the Talukdari Settlement Officer under Section 11 of the Gujarat Talukdars' Act for partition and separate possession of their share. In the proceedings certain talukdars disputed the title of some of the defendants to the shares claimed by them. The Talukdari Settlement Officer after making the necessary inquiry under Section 15 of the Act held that # the defendants were entitled to a share. The plaintiffs who appealed to the District Court unsuccessfully under Section 16 of the Act filed a second appeal in the High Court. That appeal was summarily dismissed under Order XLI, Rule 11, Civil Procedure Code. The plaintiffs thereupon filed a suit in 1920 in the Court of the Subordinate Judge at Dhandhuka for a declaration that the decision in the proceedings before the Talukdari Settlement Officer and in appeals there from was without jurisdiction and not binding on them, and for a permanent injunction restraining the defendants from having the decision of the Talukdari Settlement Officer carried out by partition. The defendants contended inter alia that the plaintiffs' suit was barred upon the principle of res judikata by reason of the former decision of the Talukdari Settlement Officer. The trial Judge accepted that contention and dismissed the suit. On appeal, the District Judge reversed the decision, and ordered the suit to be heard on its merits. An appeal having been taken to the High Court, it was argued before the full bench that the suit was barred by the rule of res judkata. In reply it was contended that the second appeal to the High Court from the decision of the District Judge under Section 16 of the Act in the former proceedings was incompetent and that the Talukdari Settlement Officer was merely an administrative officer and therefore not competent to try the subsequent suit. Both these contentions prevailed before the full bench, which overruled the decision in Jamsang Devabhcd v. Goyabhai Kikabhai I.L.R. (1891) Bom. 408, which was till then good authority for holding that the decision of the District Court on appeal from the Talukdari Settlement Officer partook of the same character as a decree in appeal from an ordinary suit, and, therefore, like all such decrees, was subject to second appeal to the High Court. The full bench held that the Talukdari Settlement Officer was not a Court exercising original jurisdiction, and it could not be; said that because Section 16 of the Act gave a right of appeal to the District Judge from his decision, that decision was a decree within the definition in Section 2(2) of the Civil Procedure Code. The effect of the decision of the District Court was thus stated (p. 447):-
The District Court hears the appeal as if it were an appeal from a decree of a Court from whose decision the District Court is authorised to hear appeals, but that is a specific right of appeal based on analogy, and the analogy cannot be extended further so as to entitle a dissatisfied party to take a second appeal to the High Court.
That view was sought to be reinforced by reference to Hari v. Secretary of State for India I.L.R. (1903) Bom. 424 : 5 Bom. L.R. 431, which was a decision upon the provisions of the City of Bombay Improvement Trust Act (Bom. IV of 1898) constituting a Tribunal of Appeal for purposes of acquisition of land. It was there pointed out that although a right of appeal to the High Court was given by Section 48(11), the local legislature had no power to control by that Act the jurisdiction or procedure of the High Court. Reference was also made to Rangoon Botatoung Co. v. The Collector, Rangoon (1912) L.R. 39 IndAp 197 : 14 Bom. L.R. 833 which was regarded as directly in point justifying the view that the decision in Jamsang Devabhai v. Goyabhai Kikabhai could not be supported.
6. It seems clear that if the above view in Amarsangji Dungarji v. Deepsangji Pawabhai represents the considered opinion of the Court directly affecting the merits of that appeal-it would be binding upon us. It is urged by Mr. Thakor for the appellants that the finding that a second appeal does not lie from a decision of the District Judge under Section 16 of the Act was not essential for the decision of that appeal and is therefore obiter. The only question which the full bench was then considering was the question of the correctness of the appellate Court's decision that the plaintiffs' suit was not barred as res judicata. That question has been separately dealt with by the full' bench. In the consideration of that question they followed Malubhai v. Sursangji I.L.R. (1905) Bom. 220 : 7 Bom. L.R. 821 which held that a Talukdari Settlement Officer was not a Court of jurisdiction competent to try the suit but an administrative officer. It was emphasised in that connection that 'in considering the competency of a Court for the purpose of deciding on a question of res judicata, the Court must look to the powers of the Court in) which the suit was instituted, and not to the powers of the Court by which that suit was decided on appeal.' Consequently upon that principle the only important issue for decision before the full bench was whether the Talukdari Settlement Officer Was a Court of competent jurisdiction to try the suit. If he was not, his decision would not operate as res judicata. The full bench, however, upon a consideration of the arguments and perhaps of the prayers for declaration. in the plaint that the proceedings before the. Talukdari Settlement Officer and the subsequent proceedings were without jurisdiction, entered into a discussion as to whether there was a right to carry a second appeal from the order under Section 16 of the Act. Thereby it was traversing upon ground which it was unnecessary to tread for the purpose of deciding the merits of that appeal. It was an expression of view which I think must be regarded as obiter.
7. In the above view the pronouncement in Amarsangji Dungarji v. Deepsangji Pawabhai regarding the right of appeal from the order of the District Court under the Gujarat Talukdars' Act is not binding on us and Jamsang Devabhai v. Goyabhai Kikabhai I.L.R. (1891) Bom. 408 is still the ruling authority on the point whose effect, in my view, is not weakened by the dictum in Amarsangji's case. The full bench followed Rangoon Botatoung Co. v. The Collector, Rangoon, in support of the view that a special appeal to the District Court does not confer by implication a right to second appeal inasmuch as the Judicial Committee had ruled out the contention that 'when once the claimant is admitted to the High Court he has all the rights of an ordinary suitor, including the right to carry an award made in an arbitration as to the value of land taken for public purposes up to this Board as if it were a decree of the High Court made in course of its ordinary jurisdiction.' It is true that Lord Macnaghten in delivering the judgment of the Board stated the principle very broadly that an appeall does not exist in the nature of things and that a right of appeal from any decision of any tribunal must be given by express enactment. That induced the Indian legislature to amend the provisions of Section 26 of the Land Acquisition Act. In 1924, the Judicial Committee of the Privy Council, notwithstanding that amendment, expressed in Narsingh Das v. Secretary of State (1924) 27 Bom. L.R. 783 its reluctance to interfere with judgments of the Courts in India on matters regarding valuation of property especially in cases of awards affecting, the valuation of lands in India. The decision in Rangoon Botatoung Co. v. The Collector, Rangoon,; was explained by their Lordships in Rama-chandra Rao v. Ramachandra Rao . Lord Buckmaster in delivering the judgment made the following observations (p. 136) :-
The argument which succeeded in that case emphasizes the distinction between an award and a decree, and the judgment mentions this in terms by stating that the appellants, although admitted to the High Court, could not have the right to-carry an award made under an arbitration as to the value of land taken for public purposes up to this Board as if it were a decree of the High Court made in course of its original jurisdiction.... When once the award as to the amount has become final, all questions as to fixing of compensation are then at an end; the duty of the Collector in case of dispute as to the relative rights of the persons together entitled to the money is to place the money under the control of the Court, and the parties then can proceed to litigate in the ordinary way to determine what their right and title to the property may be.
In that case it was held that a decision with regard] to title in land in land acquisition proceedings operated as res judkata between the parties in sub- sequent proceedings, the ratio decidendi being that where the proceedings amount to a civil contest between persons before a Court in respect to the compensation awarded and any determination by the Court as to the rights of the parties thereto is tantamount to a determination in a civil case, the ordinary rule applicable to a decree in a civil suit concerning property will apply.
8. The Board had another opportunity of explaining the pronouncement in Rangoon Botatoung Co. v. The Collector, Rangoon, in Secretary of State for India v. Chelikani Rama Rao . An objection was taken in that case that no appeal lay to the Privy Council as it was decided under the Madras Forest Act, and reliance was placed upon the dictum in Rangoon Botatoung Company's case. In overruling that objection on the ground that there was no civil right in dispute in the latter case, Lord Shaw made the following observations (p. 198):-
The proceedings were, however, from beginning to end ostensibly and actually arbitration proceedings. In view of the nature of the question to be tried and the provisions of the particular statute, it was held that there was no right ' to carry an award made in an arbitration as to the value of land' further than to the Courts specifically set up by the statute for the determination of that value.
As regards the case before them, his Lordship observed (p. 198):-
The merits of the present dispute are essentially different in character. The claim was the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seised of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation.
9. On examining the proceedings in the present case in the light of the above observations, it will be noticed that the Gujarat Talukdars' Act affects taluk-dari estates in general. Under Section 5 a settlement register has to be maintained which involves inquiry into the extent of the interests of different co-bharers in the estate and the determination of the proportionate share of profits in that estate of such co-sharers. The disputes regarding matters which are required to be entered in the register are left for determination to a special agency constituted under the Act. Under Section 21 civil Courts are barred from entertaining suits or applications for partition and a special tribunal is set up to effect partition by Section 15 read with Section 11. Section 16 then provides for hearing appeals from the decision of that tribunal or officer in the following terms :
An appeal shall lie from any decision, or from any part of a decision, passed under the last preceding section by the Talukdari Settlement Officer or other officer aforesaid, to the District Court, as if such decision were a decree of a Court from whose decisions the District Court is authorized to hear appeals.
In certain cases that decision may involve the determination of civil rights including the interest and nature of the right of the parties to the contest.
10. In the present case, after obtaining the decision of the civil Court as to the extent of the appellants' right the latter asserted before the Talukdari Setttement Officer that a portion of the common property should be divided and assigned to their share- That claim was tantamount to the assertion of a legal right to possession of property. Notwithstanding the fact that Section 16 regarded the decision of the officer as a decree it had not the force of a decree under Section 2, Clause (2), of the Civil Procedure Code, and would not operate as res judicata considering the nature of the duties of the officer concerned. But upon the remedy of appeal to the District Court the latter Court was seised of the dispute in which the contest was of a civil nature. If that were so, the decision of the appellate Court would always be regarded as a decree of a subordinate Court within the meaning of Section 100 of the Code of Civil Procedure; for, as stated in Secretary of State for India v. Chelikani Rama Rao (1916) L.R. 43 I. A. 192 : 18 Bom. L.R. 1007 it would require a specific statutory limitation to exclude the ordinary incidents of litigation. There is no such exclusion or limitation provided for in the Gujarat Talukdars' Act.
11. There is nothing in the judgment in Amarsangji Dungarji v. Deepsangji Pawabhai to suggest that the later observations of the Judicial Committee explaining Rangoon Botatoung Co. v. The Collector, Rangoon, were considered. With extreme respect it seems to me that the full bench put a very wide interpretation on the decision) in Rangoon Botatoung Company's case which their Lordships themselves never intended it to bear. Therefore the governing authority in the Presidency en the point which still holds the field is Jamsang Devabhai v. Goyabhai Kikabhai. Accordingly, in my opinion a second appeal lies from the order of the District Court under Section 16 of the Gujarat Talukdars' Act, and the preliminary objection must be overruled.
12. Turning to the merits of the appeal, it is obvious that it was not brought to the notice of the learned District Judge when he passed the preliminary order of abatement on October 21, 1932, that with the exception of two respondents' heirs and legal representatives all the remaining deceased respondents' heirs and legal representatives were ordered by the Court to be brought on the record upon the application of the appellants. It was no part of the appellants' duty to take the necessary steps to carry out the Court's order for the substitution of the names of the heirs of the deceased respondents who were properly served with notices in order to correct the record of the Court in terms of its order. That was a ministerial function which the Court's establishment was charged to perform. If it was not performed or neglected, the fault would not lie with the appellants. Extracts of the roznama have been produced to support the appellants' contention that from time to time within the period of limitation they had applied for the substitution of names of the heirs of the deceased respondents. The correctness of the statement of the appellants in that respect has not been disputed. Perhaps if those facts had been brought to the notice of the lower Court at an earlier stage it would have restricted its remarks to the prayer in the application, exhibit 16. On the application for amending the record subsequently made on November 10, 1932, the Court became aware that the neglect was due to the office establishment's failure to carry out the Court's order. But the view of the Court was that notwithstanding that neglect 'the appellants should have taken care to see that proper respondents were in eluded.' The first indication of the failure of the office to amend the record was perhaps given to the appellants and their pleader when a certified copy of the order of the first Court was obtained in 1930. If the pleader of the parties had attempted to compare the names of the numerous parties given in the title with those in the original plaint and in the various applications for amendments thereof, the omission might have been brought to light. But the necessity for that comparison would arise only upon the assumption, that the Court's establishment had failed to carry out its orders. That would in my opinion be an unreasonable assumption having regard to the normal course of business and the limited opportunities for comparison which a lawyer possesses in such matters. It would be an obvious injustice to the plaintiffs in the circumstances to dismiss their prayer for amendment of the record when the principal offenders in the matter were not the plaintiffs themselves. As pointed out in Rodger v. The Comptoir D'Escompte De Paris (1871) L.R. 3 P.C. 465:
One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression ' the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.
It seems to me, therefore, that a saner and more reasonable view must be taken of the application to amend the record and to bring it in conformity with the orders of the Court passed on the various applications of the appellants. That would affect the legal representatives of the respondents who were found to have died before the appeal was brought to the District Court.
13. The question will have to be decided with regard to the appeal against respondent No. 12 Matra Sura. Only two respondents died since the appeal was filed, viz., Matra Sura respondent No. 12 and respondent No. 38. The latter died on July 25, 1931, and the application for the substitution of his heirs was made on October 7, 1931. On that date the appellants also applied for the substitution of the heirs of Matra Sura. The latter part of the application, therefore, was beyond time and the question arises as to the sufficiency of the cause for not making the application for setting aside the abatement within the time limit prescribed by law. In regard to the procedure in such a case it may be observed that there was no necessity, as the lower Court has done, of making an express order of abatement. The lower Court relied for that procedure on Gujrati v. Sitai Misir I.L.R. (1922) All. 459 but that case has been overruled by the decision in Churya v. Baneshwm I.L.R. (1926) All. 334. That was the view followed in Vijayasing v. Shivajirao : AIR1924Bom416 . The ground upon which the appellants asked the abatement order to be set aside was specifically stated in their petition of November 10, 1932. The statements of fact therein have not been controverted and there is no reason to distrust the appellants in that respect. But the reason given by the lower appellate Court for rejecting the appellants' excuse was that the appellants lived in the same village as the respondents and if they chose an agent who was aid and who lived else where they were themselves to blame. That prejudice was apparently created by the assumption of previous neglect of the appellants in regard to the other respondents who had died long ago. That assumption, as I have pointed out, is erroneous. If the previous activity displayed in the proceedings before the learned Subordinate Judge is attributable to the industry of the agent, the latter's age was not a disqualification to the active prosecution of the appeal. The lapse or neglect in the particular instance was perhaps, as stated above, due to the ignorance of the agent who, having regard to the numerous parties in the appeal, could not properly keep a more efficient watch on them. This one default was perfectly excusable and ought not to result in the destruction of the effort of so many years to bring about a separation of interests of the cosharers involved in the estate. If some reasonable consideration were paid to the difficulties in the nature of things, I think the conduct of the appellants is easily intelligible, and I would accept the cause given as sufficient for the purposes of setting aside the abatement.
14. Then there remains the question as to the form which this order in appeal should take. Essentially this is an appeal from an order refusing amendment and if it were set aside the question would be of impleading the legal heirs of certain respondents who were not parties to the appeal when it was preferred to the District Court. We were referred to Veerappa Chetty v. Tindal Ponnen I.L.R. (1907) Mad. 86. for holding that there is no jurisdiction in the Court to direct an amendment in the manner suggested as there was no proper appeal before the Court, the appeal being filed against a dead person or persons. A contrary view was expressed by the full bench of the same Court in Gopala Kristnayya v. Lakshmana Rao I.L.R. (1924) Mad. 18. With respect I think that view is correct. The learned Counsel for the appellants has deliberately invoked the jurisdiction of the Court under Sections 151 and 153 of the Civil Procedure Code so far as the absent deceased respondents are concerned and has relied upon the power of the Court to add legal representatives after abatement. In view of the peculiar facts of this case, I am strongly in favour of the view that the Court ought to act in a manner which would prevent injustice being done to either side, considering the length of time spent in this litigation. Any ruthless dismissal of the prayers for amendment would merely result in the restoration of status quo ante litem, i.e. the status of co-owners with definite shares in the common property. If the partition has to be effectively made the amendment in the record must be allowed.
15. It is urged that the Court has limited powers under the provisions of Order XLI, Rule 20, of the Code of Civil Procedure, to add respondents, and that the effect of the amendment will be nothing short of an order adding parties under the discretionary rule. We were referred in the course of the arguments to a decision of the Privy Council in Chokalingam Chetty v. See-thai Acha (1927) L.R. 55 IndAp 7 : 30 Bom. L.R. 220 in support of the view that no person who is a party to the proceedings in the original Court can be added as a respondent if the time to appeal against him has expired. The assumption that that decision lays down an inflexible rule of interpretation of the expression 'interested in the result of the appeal' in Order XLI, Rule 20, is erroneous. Referring to the provisions of Order XLI, Rule 20, their Lordships remarked as follows (p. 13):-
That rule empowers the Court to make such party a respondent when it appears to the Court that 'he is interested in the result of the appeal. Giving these words their natural meaning-and they cannot be disregarded-it seems impossible to say that in this case the defendants against whom these suits have been dismissed, and as against whom the right of appeal has become barred, are interested in the result of the appeal filed by the plaintiff against the other defendants.
Those remarks imply that the question whether the interest of the respondents proposed to be added still survives in the appeal must depend on the nature of the litigation, the decree passed, the subject-matter of the appeal, and the effect of the decision in appeal in their absence. Here is a partition suit instituted in 1916. The extent of the interests of the co-sharers in the estate was determined in 1916. There was no question of limitation when the suit was instituted. The first Court dismissed the suit in 1927. The effect of that dismissal was merely the restoration of the parties to the original status. Referring to the order of dismissal there is nothing in it which has the effect of a decree in the defendants' favour improving their status before the suit. In consequence their interest in the subject-matter of the appeal is the same as it was before. In these circumstances I think the discretion could properly be exercised in favour of the appellants' request that the heirs and legal representatives of the deceased respondents be added as parties to the appeal before it is heard.
16. I think, therefore, that this appeal must be allowed and the order of abatement set aside and the heirs and legal representatives of the respondents who died pending the appeal substituted in their place. As regards those who died before the appeal was filed, the proper order to make is to amend the proceedings in the light of the orders passed by the original Court bringing the heirs and legal representatives of the deceased respondents on record. That amendment should be made in the title of the appeal and the necessary parties joined.
N.J. Wadia, J.
17. I agree with the view taken by my learned brother that the remarks of the full bench in Amarsangji Dungarji v. Deepsangji Pawabhai I.L.R. (1924) Bom. 442 : 27 Bom. L.R. 345 that no second appeal lies to the High Court from a decision of a District Court under Section 16 of the Gujarat Talukdars' Act must be treated as obiter. The question whether a second appeal lay did not arise in that case and was not necessary for the determination of the appeal. The plaintiffs in that case had sued for a declaration that the decision in the proceedings before the Talukdari Settlement Officer and in the appeals therefrom to the District Court and the High Court was without jurisdiction and was not binding on them, and for a permanent injunction restraining the defendants from having the decision of the Talukdari Settlement Officer carried out by partition. The defendants' contention was inter alia that the suit was barred as res judicata. The trial Court held that the plaintiffs' suit was so barred and dismissed it. On appeal, the District Court reversed that decision and ordered the suit to be heard on the merits. The High Court in second appeal confirmed the decree of the District Court. The only question, therefore, before the full bench was whether the matter was res indicate. The full bench held, following the decision in Malubhai v. Sursangji I.L.R. (1905) Bom. 220 : 7 Bom. L.R. 821 that in considering a question of res judkata the Court must look to the power of the Court in which the suit was instituted and not to the power of the Court by which that suit was decided on appeal that the Talukdari Settlement Officer before whom the proceedings were started was an administrative officer and not a Court, and that his decision could not therefore operate as res judicata. On this view the question whether a second appeal lay from the decision of the district Court to the High Court did not really arise for consideration. Whether a second appeal lay or did not lie, the decision of the Talukdari Settlement Officer could not operate as res judkata.
18. In Malubhai v. Sursangji, in which there was an appeal from a Talukdari Settlement Officer's decision to the District Court and a second appeal from the District Court's decision to the High Court, it was nevertheless held that the Talukdari Settlement Officer's decision did not operate as res judicata, and that the fact that the proceedings had come up in second appeal to the High Court would not better the plea of res judicata. The result of the appeal before the full bench in Amarsangji's case would therefore have been the same even if the full bench had taken the view that the previous decision in Jamsmg Devabhai v. Goyabhai Kikabhai I.L.R. (1891) Bom. 408 was correct and that a second appeal lay from the decision of the District Court to the High Court. The view of the full bench on this point must, therefore, in my opinion, be treated as obiter, and I am, with great respect, of opinion that that view is not correct and that the earlier view in Jamsang's case in which it was held that a decision of the District Court on appeal from the Talukdari Settlement Officer is subject to second appeal to the High Court is still good law. The full bench in Amarsangji's case, in arriving at its conclusion, was largely influenced by what it considered was the effect of the Privy Council decision' in Rangoon Botatoung Co. v. The Collector, Rangoon (1912) L.R. 39 IndAp 197 : 14 Bom. L.R. 833. That was a case under the Land Acquisition Act, and the question was whether an appeal lay to the Privy Council as of right from an, award of a High Court under that Act. Lord Macnaghten, in dealing with the contention that an appeal lay to the Privy Council, said (p. 200):-
It was admitted by the learned Counsel for the appellants that it was incumbent upon them to shew that there was a statutory right of appeal. As Lord Bramwell, then Bramwell J.A., observed in the case of Sandback Charity Trustees v. North Staffordshire Railway Co. (1877) 3 Q.B.D. 1. An appeal does not exist in the nature of things. A right of appeal from any decision of any tribunal must be given by express enactment.' A special and limited appeal is given by the Land Acquisition Act from the award of 'the Court' to the High Court. No further right of appeal is given. Nor can any such right be implied.
After dealing with the arguments raised by Sections 53 and 54 of the Act, he said (p. 201):-
That section (Section 54) seems to carry the appellants no further. It only applies to proceedings in the course of an appeal to the High Court. Its force is exhausted when the appeal to the High Court is heard. Their Lordships cannot accept the argument or suggestion that when once the claimant is admitted to the High Court he has all the rights of an ordinary suitor, including the right to carry an award made in an arbitration as to the value of land taken for public purposes up to this Board as if it were a decree of the, High Court made in the course of its ordinary jurisdiction.
The full bench in Amarsmgji's case relied on these remarks in support of the view which they took that the decision in Jamsang's case could not be supported and that no second appeal lay from the decision of the District Court to the High Court. In a later Privy Council case, however, Secretary of State for India v. Chelikani Rama Rao (1916) L.R. 43 IndAp 192 : 18 Bom. L.R. 1007, their Lordships explained what the effect of their ruling in Rangoon Botatowng Co. v. The Collector, Rangoon, was. In that case (Secretary of State for India v. Chelikani Rama Rao) certain claims made by zamindars in proceedings under the Madras Forest Act (V of 1882) were dismissed by the Forest Settlement Officer whose judgments were affirmed by two decisions of the District Court of Godavari. The decisions of the District Court were reversed and varied by the High Court, and it was contended in the appeal before the Privy Council on behalf'of the Secretary of State that after the decision of the District Court all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute. Section 10 of the Madras Forest Act provides that the Forest Settlement Officer 'shall pass an order specifying the particulars of such claim and admitting or rejecting the same wholly or in part.' Section 10, Sub-clause (ii), of the Act, provides that 'if such claim be rejected wholly or in part, the claimant may, within thirty days of the date of the order, prefer an appeal to the District Court in respect of such rejection only.' In support of the Secretary of State's contention that no appeal lay to the High Court, reliance was placed on the decision of the Privy Council in the Rangoon Botatoung Company's case. Dealing with this contention, their Lordships said (p. 198):-
It was urged that the case of Rangoon Botatoung Co. v. The Collector, Rangoon (1912) L.R. 39 IndAp 197 : 14 Bom. L.R. 833 enounced a principle which formed a precedent for excluding all appeal from the decision of the District Court in such cases as the present. Their Lordships do not think that that is so. In the Rangoon Case a certain award had been made by the Collector under the Land Acquisition Act. This award was affirmed by the Court, which under the Act meant 'a principal civil Court of original jurisdiction.' Two judges sat as 'the Court' and also as the High Court to which the appeal is given from the award of 'the Court.' The proceedings were, however, from beginning to end ostensibly and actually arbitration proceedings. In view of the nature of the question to be tried and the provisions of the particular statute, it was held that there was no right 'to carry an award made in an arbitration as to the value of land' further than to the Courts specifically set up by the statute for the determination of that value.
The merits of the present dispute are essentially different in character. The claim was the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seised of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation.
In holding that the contention urged on behalf of the Secretary of State was not well founded, they said (p. 197):-
Their view is that when proceedings of this character reach the District Court, that Court is appealed' to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply. This is in full accord with the decision of the Full Bench in Kamaraju v. The Secretary of State for India I.L.R. (1886) Mad. 309. a decision which was given in 1886 and has been acted on in Madras ever since.
It appears, therefore, that the full bench was not justified in applying to proceedings under the Gujarat Talukdars' Act the principles laid down by the Privy Council in the Rangoon Botatoung Company's case. Section 16 of the Gujarat Talukdars' Act provides that an appeal shall lie from any decision, or from any part of a decision, passed under the last preceding section by the Talukdari Settlement Officer or other officer aforesaid, to the District Court, as if such decision were a decree of a Court from whose decisions the District Court is authorized to hear appeals. The language of this section is stronger than that used in Section 10 of the Madras Forest Act inasmuch as it expressly provides that an appeal shall lie from the decision of the Talukdari Settlement Officer to the District Court as if the decision of the Talukdari Settlement Officer were a decree of a Court subordinate to the District Court. The District Court is, therefore, 'appealed to as one of the ordinary Courts of the country,' and following the view taken by the Privy Council in Secretary of State for India v. Chetikani Rama Rao , a second appeal would lie to the High Court as was held in Jamsang Devabhai v. Goyabhai Kikabhai I.L.R. (1891) Bom. 408. For these reasons I agree that we are not bound by the full bench decision in Amarsangji's case and that a second appeal lies to this Court.
19. On the merits of the case I have nothing to add to the judgment delivered by my learned brother and agree with the orders proposed to be passed by him.
20. In view of the orders passed with regard to the amendment of the plaint, we think that the appellants must bear the costs of the respondents in this appeal and the costs hitherto incurred in the District Court.