1. The property in dispute in this case is the eastern half of Survey No. 2 in Hullamballi a village in Melville Taluk. Both the eastern half and the western half of this survey number have got the same boundaries and in fact each of them is two acres in extent. They belonged to one Venkatanarasimhachar. It is in evidence that he got the eastern half of it under the release deed Ex. G in 1897. No title deed has been produced to show how he acquired the western half. But it is in evidence that he executed the hypothecation deed Ex. P hypothecating the western half of Survey No. 2 measuring two acres and one other land and it has been stated in that document that he acquired them in a revenue sale. It is therefore clear that while he got the eastern half of Survey No. 2 under the release deed Ex. G, he got the western half in a revenue sale. On 22-2-1927 half of Survey No. 2 was hypothecated to the appellant and though it is not clearly stated whether it is the eastern or western half that has been hypothecated to him it is clear that what was hypothecated is the western half, as it is stated in the hypothecation deed that that hypothecated portion had been purchased by the hypothecator in a revenue sale.
The appellant filed a suit on the foot of the hypothecation deed in O. S. No. 28 of 36-37 on the file of the Second Munsiff, Mysore, and obtained a decree. In execution of that decree he purchased the properly and obtained delivery. It is clear from the plaint as well as the delivery receipt that the property purchased and pat in possession is that portion of Survey NO. 2 which had been purchased under a revenue sale. He, however, came to know that one Sreenivasa teacher had purchased the same property in execution of a decree obtained against Venkatanarasimhachar though the property purchased by him was not that property. In order to give an opportunity to this person to pay the hypothecation amount, as he had not been impleaded in the previous suit, he filed the suit in O. S. 274 of 39-40 on the file; of the Second Munsiffs Court, Mysore. Sreenivasa Tatachar, however, did not contest the suit, though it is not clear whether he was under the impression that the suit was in respect of the land purchased by him in execution of the decree obtained against Venkatanarasimhachar or a different land.
Anyway, it is found that the suit filed in O. S. No. 274 of 39-40 ended in a decree with the consent of Srinivasa teacher but it has to be said that the suit was in respect of the western half of Survey No. 2 which is the property purchased under the revenue sale, as the plaint in O. S. No. 274 of 39-40 itself says that the land in respect of which the suit was filed had been purchased by Venkatanarasimhachar in a revenue sale. The plaintiff who has purchased the eastern half of Survey No. 2 from Srinivasa teacher claimed possession of the property on the ground that the appellant is in wrongful possession of it. Since no suit has been filed by the defendant in respect of the property now in dispute, i. e. the eastern half of Survey No. 2, it cannot be said that anything comes in the way of the plaintiff getting a declaration of his right in respect of the plaint schedule property.
2. What is seriously contended is that the decision in O. S. No. 274 of 39-40 operates as res judicata against the plaintiff. In that suit filed by the defendant, against Sreenivasa teacher the predecessor in title of plaintiff, it was alleged in the plaint that the latter had purchased the two acres of land hypothecated to the former. Sreenivasa teacher did not deny those allegations and allowed a decree to be passed against the interest if any he had in that land. In fact he had no interest in those two acres of land and it is the other two acres of land that is now in dispute, that he had purchased. The previous suit was not in respect of the two acres of land now in dispute. So the title of plaintiff or Sreenivasa teacher his predecessor in title to the lands now in dispute, was not the subject matter of dispute in the previous suit. The decision in the previous suit may operate as res judicata against Sreenivasa teacher or his successor in interest claiming any interest in the property which was in dispute in that suit, but not in any other property such as the two acres now in dispute.
3. It is contended that it is only two acres of land that had been purchased by Sreenivasa teacher and that, as he did not contend in the previous suit that what he had purchased was not the two acres which was the subject matter of the previous suit, he is estopped from now contending that what has been purchased by him are the two acres now in dispute and not the two acres which were in dispute in the previous suit. It may be that he is estopped from saying that the two acres of land which was the subject matter of the previous suit had not been purchased by him; but he at no time said that the two acres of land now in dispute was not purchased by him and neither he nor plaintiff who claims under him is estopped from saying that he is the owner of two acres of land, now in dispute.
4. The property now in dispute is the eastern half of Survey No. 2 and it belongs to plaintiff. It was not in dispute in O. S. 274 of 39-40 and nothing said or done in that suit comes in the way of Sreenivasa Tatachar, or plaintiff who claims under him, establishing his title to the suit land. Both the Courts below are right in decreeing the plaintiff's suit as prayed for. This appeal, therefore, stands dismissed with costs.
5. Appeal dismissed.