Abdur Rahim, J.
1. This was a suit to set aside an alienation. There were two brothers Gopala Aiya and Govinda Aiya. The plaintiffs are sons of a daughter of Gopala Aiya. They were also assignees of the property in dispute from the legal representatives of Ramachandra Aiya, the son of the other daughter of Gopala Aiya. Both the plaintiffs and Ramachandra Aiya were entitled to the reversion. The present plaintiffs instituted O.S. No. 58 of 1910 to recover 2/3 of their share from an alienee of the widow of the last male-holder who was in possession. To that suit, Ramachandra Aiya was made a party defendant. The suit was one for partition but the person in possession and claiming an independent right was also made a party. The 11th defendant in that suit, that is, Ramachandra Aiya supported the plaintiffs' case and said that he was also entitled to 1/3 share in the property and expressed his willingness to pay the necessary court-fee and asked that a decree might be passed in his favour. The District Munsif however did not make him a. plaintiff as he ought to have done : but an issue was raised as to whether he was entitled to 1/3 share as claimed by him. The real question for trial was common both to the plaintiffs and the 11th defendant. One of the pleas of the contesting defendants was limitation and that turned upon the question who died first--Gopala Aiya or Govinda Aiya The District Munsif finding that Gopala Aiya died first held that the suit, that is, 58 of 1910 was barred. The plaintiffs appealed from that decree and the appellate court decided in favour of the plaintiffs holding that Govinda Aiya was the surviving brother and the suit was not barred. He gave the plaintiffs a decree for 2/3 share claimed by them. Pending the appeal, Ramachandra Aiya, the 11th defendant had died and his legal representatives were not brought on the record. His legal representatives afterwards assigned Ramachandra Aiya's share to the plaintiffs in this suit who were also reversioners to the property in their own right and the past suit is for the recovery of that share. One of the. issues framed in this suit was whether the judgment of the District Munsif on the question of limitation in the previous litigation did not bar the suit. Both the courts have held that it did. I am of opinion that this is a wrong view of the law. The decree of the Munsif was reversed by the lower appellate court and so was the finding on which that decree was based, It is difficult for me to understand how the finding of the Munsif on the issue of limitation could be held to operate as a bar to the plaintiffs' present suit when that finding was reversed by the appellate court. It is true that the 11th defendant did not either appeal or file a memorandum of objections. But it was not necessary for him to do so when the plaintiffs who did appeal raised the very question in which the 11th defendant was interested. He was made a party to the appeal and the appellate court reversed not only the decree but the finding of the Munsif on the question of limitation. The effect of that must be that not only there was no decree of the District Munsif but also there was no subsisting decision of his on the question of limitation to operate as a bar to the plaintiffs suit. Then in this connection, a further question was raised that even if the finding of the Munsif in the previous suit on the question of limitation still held good so far as Ramachandra Aiya, the 11th defendant or his successor in title is concerned, whether the judgment of a Full Bench of this Court in Somasundara Mudali v. Kolandavelu Pillai I.L.R. (1904) M. 457 : 14 M.L.J. 404 would not apply. That was a case some what similar to the present. The suit was by a co-owner to recover his share of the property and there also the trespasser was made a party to the suit. It was ruled that Section 13, explanation 5 of the Civil Procedure Code of 1882 which corresponding to Section 11 explanation 6 of the present code did apply so as to make the judgment in the previous litigation as against one co-owner seeking to recover property, res judicata against another co-owner who was made a defendant. The ground on which the decision was based was that the relief claimed in the one suit was not the same as that claimed in the other. In that case the word right in Section 13 was interpreted as being synonymous with the actual relief sought by the plaintiff, that is to say, his share of the property. The suit in Somasundara Mudali v. Kolandavelu Pillai I.L.R. (1904) M. 457 : 14 M.L.J. 404 was also framed as a suit for partition but it appears that the court then gave only a decree for the share of the plaintiffs. That would be a good ground for distinguishing the present case from the case before the Pull Bench. As, however, the decision of the Munsif in O.S.S. No. 58 of 1910 was reversed by the appellate court, it could not be held that that decision operated as res judicata against the plaintiffs claim.
2. On the other hand, the question arises, upon the facts already stated, whether the finding or the appellate court in the previous litigation would not be res judicata in favour of the plaintiffs. No doubt this question was not raised by the appellants, but what the effect of the previous litigation was had been put in issue and we have got all the facts before us in this connection. The appellate court in O.S.S. No. 58 held that the plaintiffs were entitled to a decree for partition with respect to their share, that is to say, for 2/3rds. Its finding that Govinda Aiya was the survivor and the suit was not barred must have the effect of debarring the same question being raised again. 1 am therefore of opinion that the final judgment in O.S. No. 58 of 1910 is res judicata so far as the question decided by it is concerned in favour of the plaintiffs. The result will be that the judgment of the lower courts be set aside and the suit remanded to the District Munsif to be tried on the other issues arising in the case. Costs will abide the result.
3. My learned brother has stated the facts of the case both in this and in the previous litigation and it is not necessary for me to recapitulate them. In the present suit, the 2nd defendant raised the plea that the judgment of the District Munsif in O.S.S. No. 58 of 1910 finding on the facts as to the date of the death of the parties, on which finding he held that the suit was barred by limitation, must be taken to be a decision which will bind the plaintiffs in this suit because their predecessor in title the 11th defendant did not appeal against that decision and there fore he was not entitled to the benefit of the decision of the court of appeal in that suit. In consequence of that plea, the court framed an issue ' whether the suit is barred by reason of the decision in O.S.S. No. 58 of 1910, on appeal A. S. No. 281 of 1911 and on Second Appeal No. 2143 of 1913. Mr. Balakrishna Row has contended here that the matter is not res judicata by virtue of that decision of the District Munsif and he has relied on the decision of a Full Bench in Somasundar Mudali v. Kolandavelu Pilial I.L.R. (1904) M. 457 : 14 M. L J. 404. That was a suit in which the plaintiff sued for partition and to recover possession of his share from the 1st defendant who denied that the 5th defendant was a reversioner and set up his own title. The matter was referred to the Full Bench and the Full Bench gave the opinion based on the form of the decree which was that there should be no decree for partition but only a decree for a particular share, and in that view held that as the defendant who was sought to be held bound by that decree was not a person entitled to share in the relief given to the plaintiff, explanation 6 to Section 11 of the Civil Procedure Code did not apply, the words being ' where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others. The view taken by the Full Bench which is of course binding upon us is expressed in the opinion on page 465 that the 5th defendant in the present suit is not interested in the relief that may be granted to the plaintiffs in the first suit. The conduct of the suit was not in his hands and with reference to the share of the plaintiffs in that suit, he could not have been made a co-plaintiff. He gets no advantage therefore from that suit. He cannot enforce any rights of his own under that decree. Mr. Yegnanarayana Adiga has contended that this case can be distinguished on two grounds. First that there was in this suit a decree for partition. In the prior suit, the decree was for a partition. That appears from the papers in that case. On page 36 of the papers in S.A. No. 2143 of 1913, the decree is set out containing this clause ' That the plaint item No. 2 here under described be divided by metes and bounds into three equal shares, having regard to the good and bad soil, and two shares out of them be made over to the plaintiffs for their shares that the 3rd defendant do pay 2/3 of the past mesne profits etc. He further contends that the Pull Bench case is not applicable where there is in fact an active contest between the defendant who is sought to be bound by that decree and the other co-defendants; and he points out that there is nothing in the judgment in Somasundara Mudali v. Kolandavelu Pillai I.L.R. (1904) M. 457. to show that their Lordships intended to apply the reasoning in their judgment to such a case. With regard to the first ground, bearing in mind the language which I have referred to especially the words, he is not interested in the relief that may be granted--he gets no advantage from that suit--he cannot enforce any rights of his own under that decree. I am satisfied that the distinction is sound and that the decision of the Full Bench will not affect this case. With regard to the other contention, it is true that what the Full Bench were doing was the construing of the language of what is now explanation (6) to Section 11, namely, the words 'litigate bona fide in respect of a private right claimed in common for them selves and others.' They did not purport to be construing the language of Section 11, namely, ' where the matter has been directly and substantially in issue in a former suit between the same parties,' Therefore the decision does not affect such a case. That is the view taken in Ramaswami Reddi v. Abboy Chetty (1911) 2 M.W.N. 306. There the language is ' The decision in Somasundara Mudali v. Kolandavelu Pillai I.L.R. (1904) M. 457. is inapplicable, (though it is written applicable in the report) to this case as there was no active controversy between the co-defendants there.' In my opinion that case was rightly decided and I would follow it. The defendant is entitled to say that the decision in Somasundara Mudali v. Kolandavelu Pilled I.L.R. (1904) M. 457 does not stand in the way of his plea of res judicata. But although that is so, it seems to me and I agree with my learned brother in that view, that the appellant has taken a wrong line in the presentation of his case to this Court and that he should have argued that the decision of the District Munsif in O.S.S. No. 58 of 1910 is not a bar to him because the judgment and decree in that case had been set aside and the appellate court had arrived at opposite findings and substituted another decree. There can be no question of one thing namely, that the decree in neither the suit nor the appeal has any bearing on the subject whatsoever because it does not mention the rights of the person who was then the 11th defendant in that suit. It is only the finding on the issue of fact or law which can operate as res indict at a and as my learned brother has pointed out, the facts found and the inference of law arrived at on these facts by the District Munsif have been negatived by the findings of the appellate court. This is of use not a case where there have been several judgments or a single judgment in several suits and some of these suits had not been appealed from; in such a case, of course, the finding still remains because the decision in the suit remains. But here we have a case where there has been an appeal and the 11th defendant was a party to that appeal and in that appeal the findings and inference of law arrived at on those findings by the District Munsif have been negatived. It seems to me to follow therefore that there cannot remain any finding of the District Munsif on the question of law or fact which will bind the 11th defendant. That disposes of the plea of res judicata raised by the defendant as if founded on the judgment of the District Munsif. There then remains the question whether it is necessary for us to give leave to the plaintiffs to amend his suit and frame a further issue as to whether the finding of the appellate court does not operate as res judicata in favour of the plaintiffs. I agree with my learned brother that there is no necessity to do that, The question of res judicata was brought for decision by the 2nd defendant, and the issue in fact names both the decision of the District. Munsif and that of the Court of appeal and this Court in second appeal. I agree with my learned brother that the findings of the appellate court in that suit are res judicata in favour of the plain tiffs and that therefore on a preliminary issue as to the question of res judicata there must be decision that those findings govern the case of the plaintiffs and that they are binding on the court in respect of the case of the plaintiffs. The question having been raised on a preliminary issue, there may be other issues which will arise on the proceedings and these the first court will dispose of in the light of the observations which we have made on the subject of res judicata. I agree with the order proposed by my learned brother.