1. This is a second appeal by the plaintiff, and his learned Advocate states that the matter will not be taken further, whatever the decision of this Court may be. The suit was for partition of certain groves in which the plaintiff claimed one-half share. The genealogy appended to the plaint shows that the parties are descendants from a common ancestor, Aman Singh who has several sons. The plaintiff is the descendant of one of these sons, Pancham Singh, and the defendants are the descendants of: another son, named Harnam Singh. Defendants Nos. 1 and 2, who are the sons of Harnam Singh's son Jawahir Singh, have admitted the plaintiff's claim but defendants Nos. 3, 4, 9 and 10, who are descended from another son of Harnam Singh, contested the claim. The remaining defendants did not put in an appearence. The appellant's case, was that originally all the parties were members of a joint Hindu family. Some 40 years ago, separation took place but the groves belonging to the family were not divided. The groves in suit continued to be recorded in the name of Harnam Singh, until in 1325 Fasli defendants Nos. 1 and 2 got the appellant's name entered in respect of a half share of the groves in suit.' The other defendants, however, denied the appellant's title and disputes arose. The appellant accordingly filed this suit for partition.
2. The defence was that the property belonged to Harnam Singh's branch alone, and the plaintiff had no right to it. It was also pleaded that the suit was barred by limitation, as the plaintiff has never been, in possession. The First Court decreed the suit, but the lower Appellate Court dismissed it, holding that the groves belonged entirely to the branch of Harnam Singh alone. Two points only have been argued in appeal: the first, that the matter is res judicata, the second,, that as defendants Nos. 1 and 2 confess judgment the appellant should at least get a decree from their, share in the property.
3. It is in evidence that in 1910 there was a dispute among the descendants of Harnam Singh over the groves. This was referred to arbitration, and Sitla Bakhsh, the father of the plaintiff-appellant was one of the arbitrators. On the 6th July 1910, an award was made granting a one quarter share to the present defendants No. 1 and 2. Later on a creditor of defendant No. 1 got half the share in another grove (not one of those now in suit) attached and brought to sale. It was purchased at auction by the plaintiff-appellant and the contesting defendant instituted a suit to recover three quarters of the property, claiming that the whole grove had belonged to Harnam Singh's branch. The present, plaintiff who was defendant in the suit, pleaded that he was the owner of half the grove in his own right and that he was entitled to the other half as purchaser attire auction-sale. The Munsif decreed the suit holding that the groves had belonged to Harnam Singh's branch of the family alone, but on appeal the District Judge took the view that half the grove belonged to the plaintiff in his own rights as a descendant of Pancham Singh and that he got only one eighth of it at that auction.
4. It is contended that this decision operates as res judicata in the present suit for though the subject-matter of the suit is not the same, the matter in issue is substantially the same. In support of this contention the learned Advocate for the appellant relies on Panchu Mandal v. Chajidra Kant Saha 4 A. 55 : A.W.N. (1881) 110 : 6 Ind. Jur. 432 : 2 Ind. Dec. (N.S.) 610 and Pahhvan Singh v. Risal Singh 12 Ind. 9 : 14 C.L.J. 220 at p. 223. With this view I am unable to agree, as the groves now in suit are different from the grove which formed the subject of the previous litigation; and it cannot be said that the matter now in issue between the parties was directly and substantially in issue between them in the former litigation.
5. Turning to the other point raised; it is difficult to see why the plaintiff should not have been allowed a decree as against defendants Nos. 1 and 2. The lower Appellate Court has found that they are colluding with the plaintiff and the history of the case supports this view; but it is nowhere denied in the written statement of the other defendants that defendants Nos. 1 and 2 are entitled to a share in the groves in suit, nor does it appear that the other defendants would in any way be prejudiced by the granting of a decree against defendants Nos. 1 and 2 from their share of the property.
5. The appeal is dismissed as against all the defendants except Nos. 1 and 2 Bhagwan Singh and Tej Singh, and against them a decree for partition of one half of their one quarter share in the groves in dispute is granted to the appellant. No order as to costs against defendants Nos. 1 and 2.