1. The suit out of which this Second Appeal arises (O.S. No. 630 of 1926, District Munsif, Guntur) was brought by plaintiff against the widow of his brother Venkayya to recover possession of certain items of property which according to him belonged jointly to Venkayya and himself and are now his by right of survivorship. In defence the widow contended that there had been a partition between the brothers about 20 years before the suit at which the principal item of property in suit, a house, fell to her husband's share. This defence has been held by both Courts below to be barred by the rule of res judicata. The former litigation began with O.S. No. 1557 of 1920, filed by plaintiff against Venkayya, to recover possession of this house. Plaintiff's case was that there was a partition. in 1910 between himself, Venkayya, and another brother Subbisetti at which the house fell to Subbisetti's share and was subsequently sold by him to plaintiff. Venkayya, while admitting that Subbisetti had separated from the family in 1910, contended that he and plaintiff remained joint for some time and acquired this house from Subbisetti as their joint property. Later he and plaintiff divided and the house fell to his (Venkayya's) share. Plaintiff's suit was dismissed in both Courts on the ground that he had failed to establish that the sale deed which was in the names of both Venkayya and himself was executed for his sols benefit. It was also held that he and Venkayya remained joint in 1910. On the second point-Venkayya's claim to the full ownership of the house-the first Court was in Venkayya's favour, the appellate Court against him with a finding, that the subsequent partition set up by Venkayya had never taken place. It is this last finding of the appellate Court which has now been held to be res judicata in favour of plaintiff and against Venkayya's widow.
2. As soon as the contentions are set out clearly it seems to me to become obvious that this is no case for the application of the rule of res judicata. What do the parties say now? Plaintiff says that when Venkayya died he and Venkayya were joint. Venkayya's widow says they were divided. What did the parties say in the previous litigation Plaintiff said he was divided from Venkayya in 1910, Venkayya said the division was some years later. How can it conceivably be said in this state of the pleadings that the question whether plaintiff and Venkayya were divided or undivided was directly and substantially in issue in the former suit? And how can the rule of res judicata possibly be invoked by a plaintiff whose contentions in the two suits on the matter in issue are mutually contradictory? In this view of the case it is unnecessary to discuss the many decisions which have been brought to my notice. It is enough to say that in my opinion the decision of the Privy Council reported in Midnapore Zamindari Co. Ltd. v. Naresh Narayan Rao 1922 48 Cal 460 and the law as laid down by a Bench of this Court on p. 492 in Kumarappa Chetti v. Mnthuvijaya Raghunatha 1933 55 Mad 483, furnish clear authority in appellant's favour. This appeal must be allowed, the decrees of the Courts below be set aside, and the suit restored to the file of the District Munsif and disposed of ac-cording to law upon the remaining issues. Respondent must pay appellant's costs here and in the lower appellate Court. Costs in the District Munsif's Court to abide the event. Court-fee in both appeals to be refunded to the appellant upon application. Leave to appeal refused.