1. The suit (O.S. 661 of 1918) was by one of three reversioners (plaintiff, defendants 2 and 3 for a declaration that all the three were entitled to the suit property as reversioners and for partition and for recovery of one-third share of the suit property. Issue 2 raised the question whether plaintiff, defendants 2 and 3 were reversioners. Issue 4 raised the question whether plaintiff was estopped by reason of the compromise decree in a suit of 1881. These points were found against defendant 1 and the suit decreed on 7th November 1919. There was an appeal. Meanwhile defendant 3 filed a suit, O.S. 100 of 1920, for his one-third share. Defendant 1 repeated his plea of estoppel based on the decree of 1881 against this claimant also and also contended:
As this plaintiff was a party to O.S. 661 of 1918 a separate suit is not maintainable,
thereby implying that he can get the relief he seeks in the suit O.S. 100 of 1920 in execution of O.S. 661 of 1918. This was in March 1920. In September 1921, defendant 3 stated that he was willing to pay Court-fees, and wanted a. final decree to be passed even as regards himself and prayed for the appointment of a commissioner. On 26th September 1921 the District Munsif directed him to pay stamp duty. Time was given till 29th September 1921. On 27th September-1921 O.S. 100 of 1920 was not pressed and was dismissed. We must take it that this was because of the Munsif's order on 26th September 1921. On 3rd October 1921 the Munsif directed an amin to divide the property and he noted the fact that defendant 3 filed the stamp duty On 26th October 1921, the fact there was a partition into three shares was recorded and notice to defendant 1 for objections was ordered. On account of a stay order from the District Court, all further proceedings were stayed. The Sub-Court dismissed the appeal in 1922, and the High Court dismissed the second appeal in January 1924. In July 1924 the plaintiff and defendant 3 applied for making the preliminary decree final. The new District Munsif, in ignorance of the order of 1921, in September, and October 192L, dismissed the application of defendant 3, but on review passed a decree in favour of defendant 3 also. This was in October 1924. This order was reversed by the District Judge. Hence this second appeal.
2. We think that it is not open to the respondents to contend that this is not a case in which defendant 3 can ask for a decree for his share on payment of Court-fees as in a partition decree. The learned vakil for the respondent relies on Adhikari Vishnumurthiayya v. Authaiya : (1918)35MLJ153 . In the first place we do not think that case applies as the facts are different. That case was not a 'comprehensive suit for partition' and anything beyond the plaintiff's right was not put in issue. In the present case issue 2 raised the question as to the title of all the reversioners. We, therefore, think that that case does not apply; and secondly, defendant 1 is estopped from reopening any such question after his written statement in O.S. 100 of 1920.'
3. The respondent now wants an opportunity to raise the question how far the decree of 1882 (Ex 2) estops defendant 3. He is entitled to this as issue 4 concerned the plaintiff only though there are some opinions in the judgments already recorded. Subject to this, we think defendant 3 ought to have a decree in this case, seeing he has lost his other remedy apparently being induced to withdraw his suit of 1920 by the plea of defendant 1.
4. We set aside the order of the District Judge and direct the application of defendant 3 to be restored to file. The District Munsif will consider the following issue:
Whether defendant 3 is estopped from getting a decree for his one-third share by reason of the allegations in para. 6 of defendant 1's written statement.
5. If this point is decided against defendant 1, a decree will be passed for defendant 3's share also. Fresh evidence may be adduced on this issue. We make no order as to costs in appeal and in second appeal. The costs in the first Court will abide the result.