1. The point for consideration inthis appeal is whether the lower Courts wereright is dismissing the suit of the plaintiffs onpoints of law raised in the case. The plaintiffsclaim in this suit 'chat the suit pro property belongsto them after the death of Gowregowda, firstplaintiff's husband, the' original owner of the property. They contend that defendant 2 underwhom defendant 1 claims the pro property is notGowregowda's son. Present defendant 1 had filedO. S. 625 of 40-41 on the file of the Munsiff'sCourt, Nanjangud against defendant 2 on a hypothecation deed executed by him. Defendant 2 didnot contest that suit, but the plaintiffs in thissuit who were impleaded in that suit as defendants contended as they do now that the suitproperties exclusively belonged to them and defendant 2 who had executed the hypothecation deed,was not the son of Gowregowda, plaintiff 1's husband, to whom the properties in dispute originallybelonged.
It was contended by defendant 1 who was the plaintiff in that suit that the hypothecated properties had been divided between the hypothecator Chickkegowda and the plaintiffs in this suit, and as such the latter were bound to discharge that debt. In that case it had also been pleaded that the suit debt had been discharged and the Court held that the discharge as pleaded by the present plaintiffs is true, but it also held that defendant 2 Chickkegowda who was defendant 1 in that case is the son of Gowregowda. In the result the previous suit was dismissed. Disputes continued to arise between the parties and as usual in cases of this kind they ended in proceedings under Section 145, Criminal P. C. As the defendants in this suit have succeeded in those proceedings, the plaintiffs have filed the present suit for possession of the properties from the Receiver appointed in those proceedings and also for recovery of the amount realised by the Receiver by the sale of the produce of the land and deposited in Court. Apart from other pleas it is contended by both the defendants that the question that defendant 2 Chickkegowda is the son of Gowregowda has been decided in the previous suit and it has also been held in that suit that the plaintiffs are parties to the partition and as such the plaintiffs in this suit are barred by principles of 'res judicata' from contending, as they have been now contending, that defendant 2 is not the son of Gowregowda and that they have nothing to do with the partition.
2. The learned Munsiff upheld the contention of the defendants and dismissed the suit as barred by principles of 'res judicata'. The learned Subordinate Judge in appeal set aside the finding of the learned Munsiff, on the question of 'res Judicata'. He however held that there were admissions made by the plaintiffs or some of them that defendant 2 was the son of Gowregowda, that in the previous case it had been decided that there was a partition and that as it appears from the copies of documents filed in the case that plaintiff 1 has produced partition deeds for registration, the suit filed without a prayer for cancellation of the partition deed is bad. He upheld the dismissal of the suit on these grounds.
3. As regards the first question whether the suit is barred by principles of 'res judicata', it has to be stated that apart from other requirements the points substantially in issue in the two cases must have been finally decided before it could be, held that there is any such par. As observed by Mulla in his Commentary on Section 11, C. P. C. 'If the plaint is wholly dismissed, no issue decided against the defendant can operate as 'res judicata' against him in a subsequent suit, for the defendant cannot file an appeal the decree being wholly in his favour'. Again as observed in the case reported in --'Scott L. R. Mrs. v. Mohammad Din', ILR (1944) Nag 465 :
'The trial of an issue decided against a party who has the decision of the suit in his favour and therefore could not appeal from it, is not barred by the rule of 'res judicata' in a subsequent suit, the decision of that issue in the former suit not being final'. The learned Munsiff has relied on the decision reported in 22 Mys. C. C. R. 207. At first sight the decision in the above case appears to be helpful to the defendants. But the following head-note makes the point quite clear: 'A partition of the family properties had been effected between the plaintiff's father, his brother and his nephews and a partition deed drawn up to which the plaintiffs were no: parlies. In O. S. No. 5 of 1911-12 on the file of the District Judge, Mysore, the plaintiffs' uncle and his sons sued for the cancellation of the partition deed alleging fraud. The plain-tins were defendants 4 and 5 in that suit. An issue as to whether the partition deed was binding en the plaintiffs was framed and decided in the affirmative. In the present suit the plain-tins prayed for a repartition of the properties-and contended that the decision in the former suit did not operate as 'res judicata' inasmuch as (1) there was no conflict of interests between them and the other defendants in the former suit, (2) they could not have appealed from the decree in the former suit and the former suit was not one for partition in which the share of each co-parcener could be allotted to him. Held: that the decision in O. S. No. 5 of 1911-12 operated as a bar inasmuch as (1) the present plaintiffs were really co-plaintiffs in the former suit though they had been arrayed therein as defendants 4 and 5 and there was a conflict of interests between them and the present contesting defendants, (2) the present plaintiffs could have appealed from the decree in the former suit as it was not a decree in their favour but against them, (3) the decision in the former suit to which the plaintiffs were parties to the effect that a complete partition binding all parties had already been effected was as effectual a bar to future proceedings as a decision determining the respective shares of the co-parceners'.
The main point to be remembered in cases of this kind is that a decision cannot be said to be final if an appeal cannot be filed against that decision. It was held in the above case that though the first suit was dismissed, the plaintiffs in the second suit were pro forma defendants in the previous suit and were therefore really co-plaintiffs in it and could have filed an appeal against the decision dismissing the suit, since the plaintiffs in the second suit could have appealed from the decree against them in the first suit, it was held that the decision in the first suit was final. It cannot be said in this case that the present plaintiffs who were defendants in the previous suit could have filed an appeal against the dismissal of the previous suit. As such it cannot be said that the findings against them in the previous suit come in the way of the same points being decided over again, in this suit.
4. As regards the second point, the learnedSubordinate Judge has fallen into the same errorinto which the learned Munsiff had according tohim fallen. He should have remembered that, inthis suit the pltfs. have not admitted the partitionpleaded by the defendants and the findings in theprevious suit about the partition do not, as heldby him, come in the way of the plaintiff in thissuit re-agitating the matter over again. Ke shouldhave also remembered that the case had not beendisposed of by the learned Munsiff on evidenceafter giving both parties opportunities to adduceall the evidence they want to adduce. He wastherefore wrong in referring to the evidence available on record and giving findings based on suchinsufficient material. The appeal is therefore allowed and the judgment and decree of the courtsbelow are set aside. The suit is remanded to thetrial Court for disposal according to law alter allowing parties to adduce evidence. The costs willabide the final result of the case. Court-fee paidon this appeal memo will be refunded.
5. Appeal allowed.