Full Judgment
1. It is argued for appellant that the suit is not barred by res judicata because the plaintiff in the former suit was a tenant of present plaintiff, and present plaintiff was only a formal party (second defendant) in that suit, and Brujo Behari Mitter v. Kedar Nath Mozumdar I.L.R. 12 Cal. 580 is quoted in support of this eontention. That case certianly does seem to support the appellant's arguments, but the decision in Venkayya v. Narasamma I.L.R. 11 Mad. 204 not dissented from in Chandu v. Kunhamed I.L.R. 14 Mad. 324 is a direct authority for the proposition that a matter may be res judicata in a subsequent suit, although the parties in that suit, between whom the matter was decided, were arrayed as co-defendants in the former suit and not as plaintiff and defendant, if the matter in dispute in the second suit formed the subject of active controversy between the co- defendants in the former suit. There can be no question that in the former suit and the present case the question whether the land in dispute was the property of the tarwad of the present plaintiff, then the second defendant, was the subject of active controversy between the present plaintiff and the then karnavan of the tarwad. The present plaintiff's title was put forward by the then plaintiff and actively supported by the present plaintiff'. This case comes, therefore, within the principle laid down in Chandu v. Kunnhamed I.L.R. 14 Mad. 324 and we must follow the decision of this Court in preference to that of the High Court of Calcutta.
2. Lastly it is argued for appellant that the plea of res judicata applies only to item 2 in the present suit, as the remaining two items were not in dispute in the former suit. It appears that there were only two parambas in question in the former suit, while in this there are three, and the appellant's vakil states that one of the parambas in the former suit is not, in question in this. The respondent's vakil can give us no information on this point, and we must, therefore, hold that the whole suit is not shown to be barred by res judicata and reverse the decrees of the lower Courts and remand the appeal for decision on the merits with reference to the foregoing observations.
3. Costs of this appeal to be dealt with in the revised decree.
4. It has also been argued that the question of res judicata could not be decided by the judgment in the former case without the decree, which was not produced. No doubt the decree ought to have been produced, and we direct the District Judge to receive it in evidence at the further hearing of the appeal.