1. The first contention raised on behalf of the appellants is that the judgment of the Lower Appellate Court does not fulfil the requirements of Section 574 of the Code of Civil Procedure. The judgment, no doubt, is a feeble compliance with the provisions of that section, and, like most other judgments of the learned Judge, is too brief to be intelligible, much less lucid. It is impossible to know the facts of the case from the judgment, and the points for determination can only be gathered from the conclusion at which the learned Judge arrived. It would certainly be more satisfactory were the learned Judge to pay more attention to the provisions of Section 574 than he often does and than he has done in this case. I cannot, however, say that the judgment in this case is in violation of that section, and I do not see sufficient reason to interfere with the decree on that ground.
2. The next contention, namely that the Court below has erroneously held the 13th section of the Code of Civil Procedure to be a bar to the appellant's suit, must prevail. The judgment which has been held to operate as res judicata was dated the 11th of February 1890. It was not passed between the parties to the present suit or between those from whom they derive title. It was passed in a suit in which the parties to the present action were ranged on the same side as co-defendants. A judgment to operate as res judicata under Section 13 of the Code of Civil Procedure must be between the same parties or between parties under whom they or any of them claim. A previous suit in which the parties to the subsequent suit were co-defendants cannot ordinarily be regarded as a suit between the same parties. It is true that in some cases an adjudication between co-defendants would conclude them in a subsequent litigation. The principle governing such cases was thus stated in Cottingham v. Earl of Shrewsbury, 3 Hare, 627: at p. 638, by WIGRAM, V.C.: 'If a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide that case and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be hound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains.' Following this case it was held by WEST, J., in Ram Chandra Narayan v. Narayan Mahadev I.L.R. 11 Bom. 216, that 'where an adjudication between the defendants is necessary to give the appropriate relief to the plaintiff there must be such an adjudication, and in such a case the adjudication will be res judicata between the defendants as well as between the plaintiff and defendants. But for this effect to arise there must be a conflict of interest amongst the defendants and a judgment defining the real rights and obligations of the defendants inter se. Without necessity the judgment will not be res judicata amongst the defendants.' The rule laid down in the above case is in my judgment the correct rule as to the effect of a previous judgment as between co-defendants.
3. Applying this rule to the present case, it is clear that the previous, judgment on which the Court below has relied cannot operate as res judicata between the parties. The suit in which that judgment was passed no doubt related to the property now in dispute, and the issue which arose in the present case was also raised in that case, namely, whether the share claimed originally belonged to the present plaintiff Ahmad Ali. But that was a suit brought by the wife and the son of the present plaintiff on the allegation that a gift had been made in their favour by the now plaintiff Ahmad Ali. The validity of the gift and the title of the donor to make it were put in issue by the real defendants. Ahmad Ali was only a pro forma defendant, and he did not enter appearance. The Court found against the plaintiffs to that suit. The issues which were determined in that suit arose and were tried between the plaintiffs and the principal defendants. If the case of the plaintiffs to that suit was true, the present plaintiff had ceased to have any interest in the property in suit, and there was no conflict of interest between him and the other defendants, an adjudication of which was necessary. The real contest was between the plaintiffs to that suit and the principal defendants. The judgment passed in that suit cannot therefore operate as a bar to the present suit. The ruling of the Madras High Court in Madhavi v. Kelu I.L.R. 15 Mad. 284, to which the learned Judge below has referred, is perfectly distinguishable and has no application to the present case.
4. As the appeal to the Court below was decided upon a preliminary point, and its decision on that point was erroneous, I set aside the decree below and remand the case to the Lower Appellate Court under Section 562 of the Code of Civil Procedure with directions to readmit the appeal under its original number in the register and to try it on the merits. Costs here and hitherto will abide the event.