1. The lower appellate Court has found upon the evidence that the appellant, Abdullakhan valad Usman khan, is the heir of the deceased Salekhan, and that as such he would have been entitled to the property in dispute, were it not that his right is barred on theground of res judicata,.
2. That ground is based upon Suit No. 265 of 1901, brought by the first respondent, Khanmiya, claiming as the heir of the deceased Salekhan, against several persons, of whom the appellant was defendant No. 7 and the second respondent was defendant No. 13. The first respondent prayed in that suit for partition of the properties specified in his plaint and for allotment to him of Salekhan's share therein.
3. The property now in dispute was not included in the plaint. The appellant in his defence denied the first respondent's heirship and asserted himself to be Salekhan's heir.
4. The Subordinate Judge having raised several issues, of which one was whether the first respondent or the appellant was Salekhan's heir, found upon the evidence in favour of the latter and against the former on that one issue and dismissed the suit holding it unnecessary in consequence of that finding to decide the other issues.
5. The appellant has brought the suit, out of which this second appeal arises, to establish his right to the property in disputes as Salekhan's heir.
6. The lower appellate Court has negatived the claim upon the ground that as the appellant failed to make the omission by the first respondent to include the. property in dispute in the previous suit for partition a ground of defence, his (appellant's) right to the property is in the present suit barred under Explanation II to Section 13 of the Code of Civil Procedure.
7. That Explanation must be read in conjunction with and as part and parcel of the 1 eading provisions of the section itself. According to those provisions, several conditions are necessary to constitute a matter res judieata. Two of those conditions are: (1) that the matter must have been in the former suit directly and substantially in issue ; and (2) that it must have beeu heard and finally decided in that suit.
8. Explanation II does no more than lay down that if a matter, which might and ought to have been made a ground of defence in the former suit, is not made such a ground, it shall be dealt with as falling within the first of the abovementioned conditions. That is, the omission shall have the same effect given to it as it Avould have had if it had been made a ground of defence. It can hardly be disputed that if it had been made a ground of defence and the Court in the former suit had declined to decide the matter but disposed of the suit on some other ground sufficient for its final adjudication, the said matter cannot be res judicata.
9. Why should the omission of the matter among the grounds of defence have a wider effect than that and become res judicatai Explanation II does not attribute to that omission any such effect. For instance, suppose A, as heir of B, sues C for partition of Whiteacre. C denies A's heirship and claims to be himself the heir, and further pleads that, if the Court should hold A to be the heir, the suit for partition is bad because A has not included in his plaint another property-Blackacre-in which B had a share. The Court raises two issues:- (1) Whether A or C is B's heir; (2) Whether the suit is bad by reason of A's omission to include Blackacre in his claim for partition. The Court finds A is not but C is B's heir, and declines to decide the second issue because, in consequence of the finding on the first issue, it does not arise. In such a case there being no final decision on the second issue, the matter covered by it is not res judicata.
10. Now, if C had omitted to make that matter a ground of defence under Explanation II it would have become a matter directly and substantially in issue as if it had been made such a ground. But then to constitute res judicata, a second condition is necessary. It must have been finally decided. And if the former suit went off on a preliminary ground, not calling for adjudication on other grounds of defence, whether raised or not, those grounds remain undecided.
11. And that is exactly what happened in Suit No. 265 of 1901 between the present parties. The first respondent was found not to be Salekhan's heir and therefore no suit for partition could He at his instance. The Court declined to decide other issues ; and even if it had decided them, the findings could not be res judicata, having regard to Anuauyabai v. Sakharam Pandurang ILR (1883) 7 Bom. 464; Ghela Ichharam v. Sankalchand Jetha (1893) I.L.R. 18 Bom. 597; Shib Charan Lal v. Raghu Nath ILR (1895) All. 174 ; and Rango v. Mudiyeppd ILR (1893) 23 Bom. 302. The same effect must be given to a matter which might and ought to have been but has not been made a ground of defence in the former suit as must be given to a matter which was made a ground of defence in the former suit. All that was decided in Suit No. 265 was that the first respondent was not Salekhan's heir. Prom that preliminary finding it followed that the first respondent had no right to claim partition at all. The question whether the suit for partition was good, in other respects did notarise and as to them therefore the actual decision of the suit on the preliminary point could not constitute res judicata, for the purposes of the present suit.
12. For these reasons we reverse the decree and restore that of the Subordinate Judge with costs in this and in the lower appellate Court upon the respondents.
13. Mr. Gharpure for respondent No. 2 urges that as his client claims as mortgagee under respondent No. 1 our decree should be without prejudice to his rights in that respect. As no question arises here as between the two respondents we decline to accede to the prayer.