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1. This Second Appeal arises out of a suit by the zemindar of Ramnad to recover thecrva from the trustee of the Rameswaram temple for trees growing on the land attached to the temple. The written statement alleged first that the topes belonging to the temple were devadayam land and that the temple is not liable to any theerva in law or by custom ; secondly, that the suit was barred by Section 11, Civil Procedure Code, by virtue of two decrees, one that of the District Court at Madura on appeal in O.S. Nos. 288 and 289 of 1879, the other in O.S. Nos. 571 and 572 of 1903 in the Court of the District Munsiff of Paramafudi. Issues were framed, the third issue being " Whether the plaintiff's claim is barred by res judicata?" The District Munsif decided against the defendant in respect of both judgments pleaded as res judicata, but the lower appellate court has reversed that decision holding that both these decisions operated as res judicata. This question now comes before us for decision.

2. With regard to the judgment and decree of the District judge of Madura, the lower appellate court is clearly in error. [His Lordship next considers the evidence relating to the plea.

3. A far more difficult question arises with regard to the plea of res judicata in respect of the award and judgment in O.S. Nos. 571 and 572 of 1903. At the time when this latter suit was brought the trustee of the Devasthanam was himself a lessee of the whole Zemindari. It appears that one Lakshmanan Chetty was a co-lessee. The two lessees brought O.S. ,Nos. 571 and 572 of 1903 against one of themselves as trustee of the temple in respect of tree tax from the temple. The allegations were that the lessees had tendered proper pattahs for faslies 1309, 1310 and 1311, and the defendant had refused to accept them. Nothing is said about the tree tax in the pLalnt. In the written statement however the trustee-defendant pleaded that the lessees were not entitled to get the theerva imposed on the topes of the Rameswaram Devasthanam. They also pleaded that the suit was barred by res judicata under Section 13, Civil Procedure Code by virtue of the decisions in Appeals Nos. 243 244 against O.S. Nos. 288 and 29 of 1879. No issues were settled in the case by the court but by consent the whole suit was remitted to arbitration. It is obvious that this was in the nature of a friendly suit, and I have little doubt that the trustee in his position as lessee wished to get a decision which would cover the whole period of his lease which was for twenty years. The following issues were framed by the arbitrator with the consent of the pleaders. " Whether the suits were barred by Section 13 of the Civil Procedure Code by reason of the decrees in A.S. Nos, 243 and 244 of 1880 of the District Court of Madura as alleged by the defendant?" "Whether the defendant is estopped from raising that contention by the conduct of his predecessors in paying tax for the trees till fasli 1310? and whether such payment was due to mistake? "The arbitrator issued an award in which he found that the suits were barred by reason of the decrees in A. S. Nos. 243 and 244 of 1880. I have already shown that this finding is absolutely incorrect. He then proceeded as follows: - "Apart from the question whether Ex. 1 can operate as res judicata, it seems to me that the reasoning upon which that decision is based applies equally to the present suits and disentitles the plaintiff to any rent in respect of the pLalnt mentioned lands and trees standing thereon, forming part of the pagoda Devadayam." The reasoning on which the decision was based is, as I have pointed out already, a contradiction in terms for the decree confirmed the judgment making the defendant trustee liable for the tree tax, and any observation in the judgment cannot affect the decree. Therefore this ground for decision is wrong. But the decision by the arbitrator remains whether it was right or wrong. The award was tiled in court, and certain objections were put in, the nature of which appears from the order of the District Munsiff. They were based on the refusal to grant an adjournment and that the decision on the question of law and fact was erroneous. The District Munsiff held that those were matters into which he could not go and concludes his judgment by saying "In pursuance of the award of the arbitrator the suit must stand dismissed." It was not urged by the defendant in the suit that the arbitrator's award by itself operated as res judicata, nor was that question argued before us because the written statement relied on the judgment'and the decree of the District Munsiff. But it has been strenuously argued before us that the finding on the issue of res judicata is binding by virtue of the judgment and that by virtue of explanation 4 any other plea which could have been raised must also be res judicata. We have therefore to see whether Section 11 Civil Procedure Code does or does not apply.

8. In the result the judgment of the Lower Appellate Court must be set aside except as to road cess and railway cess and interest thereon and the case remanded to be disposed of on the other issue framed in the suit. Costs will abide and follow the result. Stamp duty paid by the Appellant will be refunded.

Krishnan, J.

9. The only question arising in this case is one of res judicata, My learned brother has set out the circumstances in which it arises and I need not repeat them. The issue alleged to be res judicata is whether the plaintiff the Rajah of Ramnad is entitled to levy a tax on trees standing on the defendant Devasthanam's lands in the Pamban village in Rameswaram or not. It is coptended by the defendant that the Rajah's claim to such tax is barred (1) by the decision in O.S. Nos. 288 and 289 of 1879 and (2) by the decision in O.S. Nos. 571 and 572 of 1903, all on the file of the District Munsif of Paramakudi.