1. This is an appeal against a preliminary decree in a partition suit by the legal representatives of one out of many defendants. The plaintiffs-respondents' case is that a Taluk No. 4518 was partitioned with the result that the estate was divided among the co-sharers with the exception of two portions, one of these was a 3 annas, 4 gandas 3 karas and odd share, which was left as a residuary mehal and retained the number of the original taluk, that is 4518; treating this as 16 annas, the plaintiff claims a 3 annas 1 kara and odd share. The other is an undivided portion of the original taluk, being lands in the Mouzah Tilli, which were under water at the time of the partition, but which had reformed by the time of the suit. These were left ijmali, and in them the plaintiff now claims a 12 1/4 gandas share. Against the decree passed by the lower Court recognising these two claims with modifications, the appellant now raises four points; two of a preliminary nature, and two more directly on the merits. The two preliminary points are that the suit is bad because it is multifarious, and that the claim is res judicata. Neither of these points is available for upsetting the decree. As regards the first, a right to the partition of the residuary mahal seems to be a different cause of action from a right to the division of part of a taluk which was formerly incapable of partition; and it is admitted that the parties concerned in a claim under the first right are less numerous than those concerned in a claim under the second. There seems, therefore, to have been misjoinder of causes of action and of parties. The appellant raised the point in his written statement, but the fact that the causes were not disjoined as they might have been, does not entitle him to have the decree set aside, particularly as the misjoinder has not prejudiced him, and if two separate suits had been brought on the separate causes of action they would probably have had to be tried together.
2. The plea of res judicata is based on two suits which were tried together. One was brought by the present plaintiff against the defendants' predecessor-in-title. The subject-matter of that suit, however, was not the same as that of the present suit, so it need not be further considered. In the other suit, one Krishna Dayal Rai, the cousin of the present plaintiff, sued to have his title declared to Taluk No. 4518 among others. The present plaintiff and the appellant were co-defendants. What was decided was that there had been a binding private partition confining the interest of each co-sharer to the allotment received by his predecessor, and that what happened was not merely an informal division for convenience of possession. If this decision comes within the scope of Section 11, Civil Procedure Code, it is decisive in the present suit: but is it binding between the present parties? We cannot hold that it is, because though the question of a previous partition was one which not only might and ought to have been, but actually was made ground of defence in the former suit within the meaning of Section 11, Explanation IV of the Civil Procedure Code, and though taking the two title suits together, it is difficult to suppose that the present plaintiff was not acting in the same interest as her cousin, it is impossible to hold that in the suit in which she and the appellants were co-defendants there was a conflict of interest between them, and still more that the judgment defined their real rights and obligations inter se. The case accordingly does not come under the rule relating to the res judicata among co-defendants as laid down in Gurdeo Singh v. Chandrika Singh 36 C. 193; 5 C.L.J. 611 : 1 Ind. Cas. 913 and the cases there quoted. See, too, Aghore Nath Mukerjee v. Kamini Debi 11 C.L.J. 461; 6 Ind. CAS. 554.
3. The two points that the appellant now raises on the merits are that the property that it has been sought to partition was partitioned long ago by a private arrangement, and that in any case the shares have not been properly apportioned.
4. Apart from the previous partition, the plaintiff's right to partition of the property now in suit seems to he well-established and the evidence in favour of it will be most conveniently treated in considering the case made by the appellants in relation to the partition that they say took place. This is based on documents, supported in part by oral evidence, showing possession of the disputed shares by the predecessors-in-title of the appellants or persons acting on their behalf. The earliest document relied on by the appellants is a solenama of 1215--1808. This document was not produced before the lower Court and we are asked to admit it now under Order XLI, Rule 27. The ground for admitting it is that it was referred to in a deposition by Shyama Charan Dutta Ray, defendant No. 25, in the suits which we have decided do not constitute res judicata, which was put in by the defendant (Exhibit 2). It purports to have been entered into by predecessors-in-title of the present parties, and in fact goes to show that the plaintiff's predecessors gave up shares in Unail, falling within Taluk No. 4518, and took shares in Mouzah Tilli in another taluk instead. The fact that it was referred to in a previous suit in which the present parties were represented does not constitute a sufficient ground for admitting it in the present state of this litigation, and we accordingly find ourselves unable to admit it. This practically does not affect the case as it is referred to in documents that are on the record, and the fact that an attempt has been made to produce it even at this late period, can be taken as to some extent accrediting the references to it made directly or indirectly in the later documents. This is particularly the case with Exhibits F and G kabuliyats of 1251 (1846) and 1272 (1865). These recite that the appellant's predecessors-in-interest are entitled to a certain 2 annas 9 gandas share in a portion of Taluk No. 4518. They are unregistered; but we are inclined to think that the lower Court attaches too much weight to this defect. In Baisakh 1299, (May 1892) we have a patni lease (Exhibit A) by the plaintiff's cousin which may be considered as reciting the same partition and in Baisakh 1305, (May 1898), there is a patni (Exhibit N), by Shyama Charan Dutta Ray an original defendant in favour of the appellants, in which the partition is plainly recited. There are also collection papers of various kinds showing collections on behalf of the appellant for 1879, 1880, 1889, 1890 and several years about 1900, which are supported by oral evidence showing possession in accordance with the alleged partition. Neither the documents nor the oral evidence connected with the collections have, however, commended themselves to the judgment of the lower Court, and we see no reason for entertaining a different opinion. There is, as the Court below has pointed out in some detail, a difficulty in following the exact shares with which the earlier of these documents at any rate deal. This in itself would not to our minds be a very weighty objection to the argument which the appellants seek to deduce from their contents, namely, that they show a real partition was effected at an early date, which we may take to be 1808, the date of the solenama which we have not admitted. But in view of the case made for the plaintiff, we cannot admit that the argument is sound. The most important point made by her is that there was a partition of this property under Act VIII of 1876 (B.C.) which commenced on the 6th December 1884 and was finally concluded on 26th October 1892: possession being finally delivered according to its terms the next year. It does not appear that any previous partition was alleged as a bar to this proceeding, which it is admitted that it could have been. All the defendants to the present suit except the appellants seem to have appeared in this proceeding, and though the appellants deny all knowledge of it, it is very difficult to believe that it was really carried on behind their back. The certified copy of the proceedings (Exhibit 18) seems to show that all usual steps were taken in the matter; and there is no doubt that the shares affected by the present suit were divided. Previously also to the time of this partition, we find claims of title to this taluk being set up by predecessors-in-title to the plaintiff. So in a suit decided in 1863, we find her mother successfully suing to establish her right to have her name registered in respect of Taluk No. 4518 (Exhibits 12--14); again in a land registration case in 1889, to which the appellants' predecessors-in-title were parties, the taluk was treated as joint property. The plaintiff's oral evidence does not add much to the case; but her claim under the batwara is a good one till it is set aside. The earlier documents produced by the appellants are too indefinite; and the late ones too suspicious for this purpose. That something which may have resulted in a separate holding of different portions of the property in dispute may have occurred a long time before the admitted partition is possible; but we find it impossible to suppose that it amounted to a private partition of such a character as to make the later proceeding void. Under these circumstances, we hold that there was no such private partition, and that the first point that it is sought to establish on appeal must fail.
5. The next point is the question of shares. As to this, the learned Subordinate Judge holds that the appellants have proved their share separately in respect of 8 gandas 2 karas 1 kag 17 til: he also holds that the shares of defendants Nos. 14 and 25 have devolved by patni and purchase upon the appellants who are the legal representatives of defendant No. 24 but that this share is not separately made out.
6. Exhibit 15, a land registration decree, dated 20th November 1889, shows that Ichamoyi, the Manager for defendant No. 25, applied for the registration of her name in respect of 4 gandas 1 kag and defendant No. 14 in respect of a 4 gandas 1 kag share, but they were registered jointly with others in respect of 2-annas 9 gandas share.
7. Exhibit 11, the Collector's Register D revised up to 1894, shows that Paddamani, defendant No. 14, is entered jointly with others in respect of 3 annas 13 gandas 3 cowris odd share. The name of Shyama Charan, or his Manager Ichamoyi, or his father Durgadyal is not there. In 1898, Paddamani, defendant No. 14, and Shyama Charan, deceased defendant No. 23, executed a patni and a sale in favour of defendant No. 24, the predecessor of the appellants, and stated that their original shares in the three Taujis Nos. 255, 4518 and 1096 was 8 gandas 2 kags and in lieu of that they got two annas 9 gandas in Unail Taluk No. 4518 and some other mouzas and settled 1 anna 16 3/4 gandas in patni and sold 12 1/4 gandas thereof. Their entry in the Collector's records, however, jointly with other co-sharers indicates that there was some dispute as to the exact amount of their shares and that it was not admitted to be 8 gandas 2 kags as stated by them. The appellants further claim a share of 13 3/4 gandas from Gyanada Soondari and Exhibits O and P, printed in pages 101 and 106 of the paper-book, show that Gyanada Soondari sold 1-anna 5 gandas and leased as Miras Taluk 1 anna in Taluk Nos. 4518 and 255 to the predecessor of the appellants as the ancestral property of her husband Durga Nath Bose Ray and conveyed to her by heba. Some of the documents exhibited in the case including some decrees show that there was some sort of arrangement between the co-sharers by which different mouzahs or parts of them were in possession of different co-sharers and the appellants claimed to have been in possession of the major portion of Unail. The general butwara of the mahal which continued for a period of nearly nine years and the delivery of possession thereunder accepted by the agent of the appellants seems to have changed the whole pre-existing condition and the parties have to be relegated to their original shares in the whole estate. A suit for partition determines the share of the co-sharers amongst themselves and each co-sharer that demands a separate block for himself may prove his share and get a block for himself. It is not quite clear whether this aspect of the case was fully realized by the parties. Complaint is made both by the appellants and by defendants Nos, 1 and 2 in this connection and considering all the circumstances of the case, we think that a further consideration of the shares of the appellants and of defendants Nos. 1 and 2 should be made after giving the parties a sufficient opportunity of adducing further evidence. We, therefore, keep the appeal on our file and send back the case to the lower Court for determining the shares of the appellants and defendants Nos. 1 and 2. All parties interested will have an opportunity of adducing fresh evidence on the point. In determining the shares of the appellants and defendants Nos. 1 and 2, the Court may, if necessary, consider what are the shares of the other co-sharers in the property in suit. Record to be returned with the evidence and finding within four months from the arrival of the record in the Court below. Records to go down at once.