1. This appeal arises from a suit brought by one Sham Dat Rai for a declaration that Decree No. 184 of 1921, relates to a plot of land bearing No. 649 at the Survey of 1273 Fasli, and not to the cultivatory holding of the plaintiff which bears the No. 985/38 of the Survey of 1301 Fasli now numbered 355, 366 and 367, and also for joint possession against the defendants Nos. 1 to 8. The defendants Nos. 9 to 12 were said to be in joint possession with the plaintiff. Other reliefs were asked for, which need not be enumerated here. The parties to the appeal are relatives who have been litigating over this or the adjoining land for about a quarter of a century, and evidently regard litigation as an amusement.
2. It is necessary for the sake of clearness to re state the facts as shortly as possible. In 1906 the present respondents sued for recovery of possession of the plot now in suit, calling it No. 985/38 according to the Survey of 1301 Fasli, and identifying that number with No. 649 of the earlier settlement. The present plaintiff-appellant was defendant in that suit and an ex parte decree was given against him. In 1921 the respondents--who had obtained possession under the decree of 1906 but had been again dispossessed--sued again for the recovery of this plot and another, again alleging it to be No. 985/38 of 1301 Fasli. The plaintiff-appellant defended the suit and alleged that he had no knowledge of the ex parte decree of 1906, which he wished to have set aside; but he lost his case and the Munsif gave a decree to the present respondents, restoring to them possession of No. 985/38 of the settlement of 1301 Fasli. The plaintiff-appellant's present suit is in defiance of these two decrees of 1906 and 1921. He made allegations of fraud in his plaint without being very definite as to the nature of the fraud exercised. I need not, however, pursue this question further, because the lower Appellate Court has found as a fact that there was no fraud. Indeed, the trial Court seems to have been very doubtful on this point, for it remarked 'I am not ready to go to the extent of holding that the defendants employed actively any fraudulent trick in obtaining the decree of 1921', and pointed out that the plaintiff had actively contested the suit of 1921 and knew all about the ex parte decree of 1906. It is not suggested in argument that the decree of 1921 can be set aside unless it is proved that the plaintiff was prevented from having his claim adjudicated therein by fraud. What has, however, been argued at some length and with some plausibility is this. In a later suit instituted in 1923 certain persons, stated to be co-sharers of the plaintiff, (that is to say in joint possession of the plot in suit, though not members of the same family) instituted a suit against the present defendants-respondents for a declaration that the plot in suit, which they called No. 985/38, was their occupancy tenure, and they obtained a decree. The present plaintiff-appellant did not join in that suit as a plaintiff, but he was arrayed among the defendants, and, of course, did not contest the suit. It is argued then that even if the plaintiffs appellant is bound by the Mnnsif's decree of 1906, the defendants-respondents are bound by the decree of 1924, and as the decree binding the respondents is of later date than the one binding the appellant, it must follow that the decree of 1921 binding the appellant should be ignored. For this proposition the learned Counsel for the appellant relies on two decisions of this Court, viz., the cases of Mallu Mal v. Jhamman Lal 1 A.L.J. 416 and Amar Singh v. Gobind Ram : AIR1927All717 .
3. This plea was not even suggested by the plaintiff in his plaint. He only refers to the suit of 1923 incidentally in para. 12 of his plaint, and even then it is only to mention that in that suit he obtained his knowledge of the earlier decrees, and not in order to plead that the decree in that suit would operate as res judicata against the defendants. Consequently no issue was framed on the point, and it is barely mentioned at the end of the judgment of the lower Appellate Court. However, it raises a question of law and it is mentioned in the grounds of appeal.
4. The facts are that the suit of 1921 in which the present respondents were the plaintiffs was concerned with the whole of No. 985/38. Then in 1924 the co sharers of the present appellant obtained their decree relating to 11/18th of No. 985/38. The plaintiff-appellant in the present suit claimed 7/36th of this number, of which it is said he was entitled to 1/9th before the suit of 1921 and afterwards inherited 1/12th more. In the suit of 1923 the plaintiff's co-sharers claimed that the execution proceedings relating to the decree of 1921 were null and void as against them, but not that they were null and void as against the present plaintiff-appellant, who, as I have already remarked, did not join in the suit and was arrayed among the defendants; and in deciding that suit the Subordinate Judge held that the present plaintiff-appellant was bound by the decree of 1921 and could not be considered at all, though, as a matter of fact, the amount of the share that he might have been entitled to had to be worked out in order to arrive at the share owned by the plaintiffs in that suit. It is clear then that in that suit the plaintiff's co-sharers and the Court both considered that the plaintiff appellant was bound by the decree of 1921, and as the plaintiff-appellant was a party to that suit there can be no doubt that he knew that he was bound by the decree of 1921, and that if he had ever had any right in the property in suit he had lost it. He was a co-defendant with the present respondents. There was no issue between them, and as his position was that he had lost his rights by the decree of 1921 he had no interest in the property that could clash with the interests of the present respondents, so no issue could have arisen.
5. In these circumstances I think that it is clear that Section 11 of the Civil Procedure Code cannot operate so as to make the decree of 1924 res judicata as between the plaintiff-appellant and the respondents. It was suggested at the very end of the argument that even if it be held that the plaintiff appellant is bound by the decree of 1921, and that the defendants-respondents are not bound by the decree of 1924, yet this will not apply to the 1/12th of the property which the appellant inherited after the decree of 1921. This is a new question which gives rise to an entirely new set of considerations. It was not set up in the plaint and there is no adjudication by the lower Courts. What is certain, however, is that the plaintiff-appellant cannot succeed on the case set up by him in the plaint, and the appeal is dismissed with costs.