Hill and Brett, JJ.
1. By this suit the plaintiff sought to recover possession of a parcel of garden land.
2. His case was, that the, garden had belonged to his father and uncle in moieties and that on the death of his father he as his heir became entitled to one moiety. The other moiety descended on the death of the uncle to the two sons of the latter, Kalikamal and Nilkamal. On the death of Kalikamal, his widow Trailokyamohini succeeded to his one-fourth share, and when she died it passed to Gobindamohini, Kalikamal's mother. On the death of Nilkamal his widow Bhabatarini took the remaining one-fourth share as his heiress. Bhabatarini and Gobindamohini both died childless, the former in November 1888, and the latter in November 1894, leaving the plaintiff the sole reversionary heir of their respective states. On the 8th January 1888 the defendant's husband purchased from Bhabatarini her one-fourth share in the garden, and on the 4th June 1890 he purchased from Gobindamohini her one-fourth share. Subsequently the defendant, her husband having died in the meantime, possessed herself of the whole of the garden, and the plaintiff now sued to have his title to the garden declared, to have the sale to the defendant's husband set aside as having been made without legal necessity, and to recover possession. The defence, as far as it is now material, was that the suit as regards a moiety of the land was barred By the operation of Section 13 of the Code of Civil Procedure. This plea was founded on a suit brought by the defendant's husband against the present plaintiff in the year 1895 for a declaration of his title to a moiety of the garden under his purchases from Bhabatarini and Gobindamohini and for partition. The suit was not defended, and the then plaintiff obtained a decree ex parte under which the partition V, was subsequently carried into effect, and the present defendant obtained possession, With respect to the remaining moiety the defendant states that she is not in possession and lays no claim to it.
3. The question for decision now is, whether the validity of the sales under which the defendant claims can be enquired into in the present suit, and that question appears to us to depend on whether it was Incumbent on the present plaintiff in the suit of 1895 to contest the title of the defendant's predecessor on the ground which he now seeks to take, namely, that the sales to him were not supported by legal necessity.
4. It was contended for the appellant, that it was not necessary in that suit to go into the question of the then plaintiffs title at all, that the mere fact of joint possession gives a right to claim partition, and that the appellant, therefore, by abstaining from raising the question of title in the former suit, did not lose his right to raise it now. The case of Sundar v. Parbati (1889) I.L.R. 12 All. 51 : L.R 16 I.A. 186 was claimed as an authority for these propositions; but in that case the widows of Buldeo Sahai, whose rights and interests in the property were of precisely the same nature, were the sole claimants, and there was accordingly no question as between them and the rightful owner of the property. Here, however, it is otherwise, for if the appellant be right, he alone was entitled to the property now in suit and the defendant's husband had no title to it whatever; so that unless the case referred to goes the length of deciding that a person who has no title may, on the strength merely of his being in possession, enforce a partition as against the true owner, it cannot help the appellant. It, however, we think, lends no support to that view; nor, apart from it, do we think that such a proposition is maintainable.
5. In our opinion the question of the validity of the sales to the defendant's husband ought to have been raised by way of defence to the partition suit, and it must, therefore, by virtue of the 2nd Explanation to Section 13 of the Code of Civil Procedure, be treated as having been directly and substantially in issue in that suit. It is, consequently, we think on the principle of Mahabir Pershad Singh v. Macnaghten (1889) I.L.R. 16 Calc. 682 : L.R. 16 I.A. 107 and Kameswar Pershad v. Rajkumar Ruttan Koer (1892) I.L.R. 20 Calc. 79 : 219 I.A. 234 now res judicata. The result is, that the appeal fails and must be dismissed with costs.