Richard Garth, C.J.
1. In this case the plaintiff sued for possession of certain lands on the allegation that they appertained to a certain taluq, which he had purchased at an auction sale in execution. The defence raised several pleas, one of which was that the suit was barred by res judicata. The first Court overruled this plea and decided the case upon its merits. The lower Appellate Court, however, has held that the plea of res judicata is fatal, and has dismissed the suit on that ground.
2. The plaintiff appeals to this Court.
3. Now, what appears to have taken place in the former suit is this. In 1878 the present plaintiff framed his plaint on somewhat similar allegations to those in the present case; and the issues framed in that suit related--(1) to the extent of the rights which the plaintiff had actually acquired by his purchase; and (2) to the correctness of the description of the lands sought to be recovered. As to the first point, the Munsif decided that the plaintiff had purchased the right, title and interest of the judgment-debtors in the entire taluq. But as to the second point, inasmuch as it appeared that some of the defendants, who were part owners of the taluq, and who were proved to be in exclusive possession of specific portions thereof, were not judgment-debtors, and as the plaintiff had not excluded the lands held by those defendants from the property described in his plaint, the Court found itself unable to give the plaintiff any relief, and accordingly dismissed the suit 'without prejudice to plaintiff's bringing a fresh suit for possession of the lands of the taluq in suit distinctly ascertained.'
4. Against this decision the plaintiff appealed, and the Subordinate Judge seems to have come to much the same conclusion as the Munsif. He found that the plaintiff could not get khas possession, as he had not specified the lands which were exclusively in the share of the judgment-debtors; and that he could not get a decree for joint possession with the other part owners, because he had not specified the extent of the shares of his judgment-debtors. He, therefore, dismissed the appeal with the remark: ' According to the circumstances of the case the plaintiff can bring a fresh suit properly within time.'
5. The effect of the former litigation, therefore, was this. It established the fact, as against some of the defendants in that suit, that the plaintiff had purchased the rights of his judgment-debtors in the entire taluq, and not only in an eight-anna share thereof; and so far that decision is res judicata. But on the further and more important point, viz., as to what lands plaintiff was entitled to possession of by virtue of his purchase, the Courts found themselves unable to come to a decision by reason of errors of form in the frame of the suit. They, therefore, refrained from deciding that point, and left it to the plaintiff to bring a fresh suit, framed in such a manner that the Court might he able to grant the relief sought. It may be that in the former suit both Courts ought, properly speaking, to have insisted on proper issues being raised, and to have tried those issues upon the best evidence that the parties could adduce. But we are not prepared to say that the course taken by those Courts was ultra vires. They considered, rightly or wrongly, that they were not in a position to try the main question in the cause; and it is clear that a question, which was advisedly left undecided in the former suit, cannot be said to have been heard and finally decided within the meaning of Section 13 of the Code.
6. As we understand, the plaintiff has now come into Court 'with a plaint corrected according to what the Munsif had shown to be essential to his success,' and the first Court has been able to give a decree upon that plaint.
7. The lower Appellate Court has refused to try the case upon its merits, having found the issue as to res judicata against the plaintiff. We think that this judgment must be set aside, and the case remanded to the lower Appellate Court for trial of the remaining issues. The costs of this appeal will follow the result.