B.L. Hansaria, J.
1. There have been many bouts of litigations between the parties to the present suits or their predecessors-in-interest. The first round of litigation is not very important for the purpose of the decision of the two appeals; but the second which was the subject matter of Title Suit No. 125/58 dees have material bearing. To appreciate the decision in that suit, it would be relevant to note the relationship between the parties. To put shortly, one Sewbharat Shah had three sons named Kalpuram, Anturam and Ganga Prasad. Kalpuram had among others Jamuna Prasad as one of his sons. Wife and son of Jamuna Prasad are the plaintiffs in the two suits with which we are concerned. Anturam had two grand-daughters Sahadari and Monohari. The third brother Ganga Prasad had Sahadei and Janaki as two daughters. Title Suit No. 125/58 was filed by Sahadari and Monohari claiming l/3rd share in the lands of Periodic Pattas 1 and 4, 1/2 share in lands covered by P. P. Nos. 18 and 122 and the
entire land covered by Periodic Pattas 77 and 95. The suit was decreed as prayed for on 3-5-1961. In the suit, Kalpuram was one of the defendants to start with. As Kalpuram died during the pendency of the suit, his legal heirs were brought on record. It may be stated that among the heirs brought on record the plaintiffs of the present suit were not included, who subsequently filed two suits in question praying for declaration of their different shares in the different pattas. The learned trial Court decreed 2/10th share in land covered by Pattas 1 and 4 only. On appeals being preferred by both the parties, the learned District Judge has decreed the suit not only with respect to land covered by Periodic Pattas 1 and 4, but also those covered by Periodic Pattas 18, 77, 95 and 122. Feeling aggrieved the contesting defendants have approached this Court in second appeal.
2. The only point urged by Shri Das for the appellant is that in view of the decree in Title Suit No. 125/58 the plaintiffs are debarred from getting any declaration beyond the one which was decreed in that suit. To put it differently, according to Shri Das, the decision in Title Suit No. 125/58 would operate as res judicata on the plaintiffs inasmuch as the decree in that suit is equally binding on them as on the other heirs of late Kalpuram. As the plaintiff had not been impleaded in the earlier suit as legal heirs, the point for determination is whether despite this the decree in earlier suit is binding on them. Shri Das has placed reliance on four decisions of the Supreme Court, the first of which is Daya Ram v. Shyam Sundari, AIR 1965 SC 1049, where it has been stated that where a plaintiff after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant are and bring them on record within the time limited by law, there is no abatement of the suit or appeal, and the impleaded representatives sufficiently represent the estate of the deceased and a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. This would not, however, be so if there is fraud or collusion. This principle was reiterated in Mohd. Sulaiman v. Mohd. Ismail, AIR 1966 SC 792. It was observed in this case that the aforesaid
rule will not apply where the absent heir had a special defence which was not and could not be tried in the earlier proceeding. To the same effect is the decision in Dolai Maliko v. Krishna Chandra, AIR 1967 SC 49, It was pointed in Suresh v. State of Maharashtra, AIR 1975 SC 783 that the fraud must be between the parties impleading the legal representatives and the representatives brought on record.
3. Though these decisions have been rendered on the question of abatement of a suit, it has been clearly held that a decree obtained with the legal representatives who sufficiently represent the estate of the deceased will be binding on the legal representatives not brought on record. The submission of Shri Medhi that the decisions could not apply to a proceeding like the present one cannot therefore be accepted. The case reported in J. Kotamma v. P. Simhachalam, AIR 1969 Andh Pra 76 on which reliance is placed by Shri Medhi has dealt with the matter with reference to Section 11 of the C. P. C. only. This decision cannot, therefore, assist the respondents.
4. Let it be seen whether the plaintiffs in the present suit were left out due to fraud or collusion. It is fairly admitted by Shri Medhi that there is nothing to show this. Really in the written statement which the legal heirs, who were impleaded in place of Kalpuram, had filed in Title Suit No. 125/58 the point relating to non-
impleading of the plaintiffs had not been urged. It may be that the plaintiffs were left out because the case of the plaintiffs in Title Suit No. 125/58 was that Jamuna Prasad was not a son of Kalpuram. Be that as it may, no fraud or collusion can be read in not impleading the present plaintiffs as heirs of Kalpuram in Title Suit No. 125/58.
5. This being the position, I would hold that the decree in Title Suit No. 125/58 was binding on the present plaintiff also. In terms of the decree in the earlier suit the present plaintiffs can lay their hands on the lands covered by Periodic Pattas 1 and 4 only. Kalpuram's share in these two pattas come to 1/3rd, of which the plaintiffs would get 1/5th. As Kalpuram had sold 16 b. 2K. 12 Lechas of land out of the Periodic Patta 4, as found by the learned District Judge, the plaintiffs are entitled to 1/5th share in the remaining land of that patta falling in the share of Kalpuram which is 5B. 0K. 13-2/3 Lechas. So far as land of Periodic Patta No. 1 is concerned, the plaintiffs would get 1/15th of that land.
6. The appeal is allowed as aforesaid. The judgment and decree of the learned District Judge stand modified accordingly