1. This was a suit for possession of a grove and Rs. 50, the alleged value of the fruit of the grove taken by the defendants during the three years immediately preceding the suit. The suit has been dismissed on the ground that it is barred by a decision in a previous suit. The previous suit was brought by Hardial and his son, Banke Rai, to recover damages on account of the fruit of the grove alleged to have been wrongly taken by the defendants. The suit was dismissed because the plaintiffs failed to prove their title to the grove or that it ever was in their possession. The present suit was brought by Banke Rai and other descendants of Hardial, who were either not born or were very young children at the date of the previous suit. There can be no doubt, I think, that such of the plaintiffs as were alive at the date of the previous suit, were sufficiently represented by Hardial. Those who were born since the date of the previous suit, are clearly bound by that decision so far as the question of the parties is concerned.
2. It is argued that the decision on the question of title in the previous suit did not render that question res judicata, because the previous suit was of a nature cognizable by a Court of Small Causes and because the decision on the question of title was only incidental. The previous suit was not tried by a Court of Small Causes, but was tried by an ordinary Civil Court, and under Section 11 of the Code of Civil Procedure Explanation II, it is quite clear that the fact that no second appeal lay in the previous suit is no ground for holding that the decision in the previous suit does not render the question res judicata, nor can I accept the argument that the decision on the question of title was only incidental. It was, in my opinion, the most important question in the case. The circumstance that the relief claimed in this case differs from the relief claimed in that case is immaterial. The crucial question in both cases was the question of the plaintiff's title. The decision in Anwar Ali v. Nur-ul-Haq A.W.N. (1907) 218 : 4 A.L.J. 517 and the decisions therein quoted rest, partly at all events, on the view that a decision in the course of a suit of a nature cognizable by a Court of Small Causes does not render the question of title decided therein res judicata. The point was one on which there was considerable difference of opinion, but it has been settled by the new Code of Civil Procedure. In my opinion, the decision of the Courts below is correct. The appeal is dismissed with costs.