1. Both these appeals have been heard analogously as they arise out of the same judgment of the lower appellate court and the same original suit. Defendant-2 is the appellant in both these appeals.
2. Plaintiff filed O. S. 21/61 in the court of Munsif at Anandapur for confirmation of title or possession or in the alternative for recovery of possession and for permanent injunction in respect of Ka and Kha Sch. properties. Plaintiff and defendants 1 to 10 are members of a joint family. Both the schedules Ka and Kha properties are admittedly joint family properties, but they are tenanted lands. Ka Sch, property was under the Sikimi tenancy of Budhia Dehury, father of defendant- 1 and Sch. Kha property was under the Sikimi tenancy of Chinta Behera, father of defendant-12. Both of them were Sikimi tenants under the joint family. These Sikimi tenants acquired occupancy rights by reason of their long possession in accordance with the tenancy law prevalent in Keonjhar State. Budhai sold his interest in Kha property on 29-1-51 to the plaintiff for a consideration of Rs. 100/- under a registered sale-deed, Ext. 3. Similarly defendant-2 sold his right in Sch-Kha property to the plaintiff under a registered sale-deed, Ext. 2. After purchase, the plaintiff was put in Khas possession of these properties. Subsequent to his purchase, the plaintiff paid rent, mutated his name and was in peaceful possession of the same from 1951 till 1959. In the year 1957 defendants 1 to 5 tried to disturb his possession by forcibly entering upon the land. A criminal case was filed by the plaintiff against defendants 1 to 5 in which they were ultimately acquitted. Hence he filed the suit.
3. Defendants 6 to 8, 11 and 12 filed one written statement supporting the plaintiffs case. They did not, however, take any subsequent part in the litigation and were ultimately set down ex parte. D-2 alone contested the suit, though he filed a written statement jointly with defendants 1, 3 to 5, 9 and 10. His defence, in substance was that the suit was not maintainable. He raised pleas of res judicata and estoppel and also alleged that the suit is barred by limitation. He denied the allegation in the plaint that one Banamali was adopted to Hari of the second branch of the family. He further alleged that the suit-land was not tenanted land at any time. The plaintiff having described the suit-land as raiyati land in a prior partition suit No. 10/46, it is not open to him now to say that they were tenanted land and that he is purchaser from those tenants. Plaintiff's Khas possession was also denied.
4. This litigation had a chequered career which need be stated here. The original suit O. S. 21/61 filed by the plaintiff was decreed in respect of Ka Sch. lands and was dismissed in respect of Kha Sch. lands. From that judgment two appeals were preferred, one by the plaintiff who claimed in respect of Kha was dismissed, and the other by defendant-2 in respect of Ka Sch. lands which was decreed in favour of the plaintiff. The plaintiff's appeal was T. A. No. 11/62 and the defendants' appeal was T. A. 15/62. Both of them were heard analogously and one judgment was passed by which T. A. 11/62 was allowed and T. A. No. 15/62 was dismissed. As a result of this decision of the lower appellate court the entire suit of the plaintiff was decreed. Defendant-2 came up to this Court and filed two second appeals, as there were two decrees, though one judgment. His second appeal no. 167/63 was against the judgment and decree in T. A. 11/62 and second appeal no. 168/63 was against the decree and judgment in T. A. 15/62. Both the appeals were heard together by Hon'ble Barman, J. (as he then was) and by his order dated 16-3-64, he remanded both the appeals. After remand, the lower appellate court again allowed the plaintiff's T. A. 11/62 and dismissed defendant 2's T. A. 15/62, in other words, after remand, the entire suit of the plaintiff was decreed afresh. D-2 accordingly has again come up to this Court and filed the present two second appeals, second appeal No. 62/65 is against the decision of the lower appellate court in T. A. 15/62 and second appeal No. 112/65 is directed against the decision in T. A. 11/62.
5. The trial court held that the plaintiff had acquired valid title to Ka Sch. property, but he acquired no title to Kha Sch, property as his vendor had no title. He also held that the suit is not barred by res judicata. He also held against the plea of estoppel.
6. The lower appellate court on the other hand came to a finding that fathers of defendants 11 and 12 were Sikimi tenants and they were in possession of the lands till 1951 as raiyats when they alienated their interest in favour of the plaintiff under exts. 2 and 3. Accordingly, the plaintiff's title in respect of Ka and Kha was upheld. He also found that the plaintiff was in possession of the disputed land from the date of his purchase till 1956 when his possession was disturbed. He also concurred with the trial court that the suit is not barred by res judicata, and negatived the plea of estoppel.
7. It is in evidence that the plaintiff had filed a suit for partition in the year 1946 claiming partition of the joint family lands. This partition suit was numbered as 10/46 which had been decreed. This suit property was described in the schedule to the plaint in the partition suit as raiyati-lands (as opposed to Prajadakhali) of the parties, and they were partitioned accordingly. The plaint, judgment and decree of the prior partition suit 10/46 has been proved respectively as exts. A, C and B in this case. The plea of res judicata is based upon this prior partition suit. The plea of estoppel is likewise founded upon the allegation of the plaintiff in the prior partition-suit that the suit-lands are raiyati lands and not tenanted lands.
8. The plea of estoppel may be taken up first. It is argued on behalf of the defendants that the plaintiff not having described the lands in the previous partition Suit No. 10/46 as tenanted lands, is estopped from claiming the same as such in the present suit. Section 115 of the Evidence Act is the provision dealing with the rule of estoppel. It provides that when one person by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. So the main elements are that the plaintiff must have made a' declaration intentionally so that another may believe it to be true and to act on the footing that it is true. There is nothing in evidence to show that the plaintiff had intentionally made a false declaration in the prior partition-suit describing the suit-lands as raiyati lands and not Prajadakhali lands or know that such declaration was false at the time it was made, and thereby made the defendant to act in a manner, on the footing of that representation, to his own prejudice. That was a partition suit. Whether Prajadakhali or not, they would have been allotted to some co-sharer or other. The description of the suit-land in the partition suit either as raiyati land or Prajadakhali land would not have mattered very much for the relief of partition prayed for in that suit, such description, in my opinion, is irrelevant in a suit for partition. On the circumstances, the plea of estoppel has no legs to stand upon and this plea is accordingly rejected.
9. The next question which is urged is that the present suit is barred by res judicata. Mr. Murty seeks to base his case of res judicata upon explanation (iii) to Section 11, C. P. C. Section 11 of C, P. C. runs as follows:--
'No Court shall try any suit or issue In which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court'.
x x x x x Explanation (iii): 'The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly by the other'.
10. It appears to me on a plain reading of this provision that the question whether the suit-land was tenanted or not was not and could not be a matter directly and substantially in issue in the former partition suit. No issue was framed in that suit as to whether the suit-lands were Nijdakhali or Prajadakhali lands. In view of the present finding that the suit-land was in fact tenanted by the vendors of the plaintiff till the year 1951, it is clear that in the prior partition suit both the plaintiff as well as the defendants were not cognizant of the fact that they were tenanted, nor even if they had been cognizant, that would have affected the relief for partition claimed in that suit. No attention was focussed on the character of the suit-lands in the prior suit, nor was that matter adjudicated upon. This aspect of the matter has been dealt with by the lower appellate Court in para 12. He has noticed that in the prior partition-suit the partition was not only in respect of Prajadakhali lands but in respect of other lands also. Thus, in the prior suit the inclusion of the suit-lands in the schedule of non-raiyati lands was obviously a mistake. It is a mistake which was bona fide committed by the plaintiff and concurred in by the defendants. In the circumstances, as already stated, it was not a matter which was directly and substantially in issue in the prior partition suit, nor was it even collaterally or incidentally in issue, nor adjudication of such an issue was material and essential for the decision of the prior partition suit. Accordingly, this point also fails. There is no merit in these two appeals which are accordingly dismissed, but there would be no order for costs of this Court.