1. In this suit out of which this appeal has arisen the plaintiff sued for a declaration of his title to and for recovery of possession of the land in suit, for compensation for damages and for an in junction on the defendant.
2. The suit was dismissed by the Trial Court and the plaintiff appealed to the District Court. The learned District Judge held that the question of the plaintiff's title was res judicata by reason of a previous decision of the same Court in 1915; and on that finding the learned Judge allowed the appeal, set aside the decree of the Court of first instance and ordered that the plaintiff would get a decree declaring his title to the land subject to the defendant's right of way. It was further ordered that each party would bear their own costs.
3. The defendant has appealed to this Court and the learned Vakil for the appellant has contended first of all that the judgment of 1915 does not operate as res judicata; secondly, that, the subject-matter of the previous suit is not identical with the subject-matter of the present suit; and, thirdly that with regard to the piece of land which is common in both the suits the plaintiff in the first suit stated that he claimed no relief as he was in possession; and the suit was dismissed on that ground. I deal with the first point. In the previous suit the present plaintiff was defendant and the present defendant was the plaintiff and the Trial Court in that case held that not only had the plaintiff in that suit failed to prove his title but that the defendant had proved his. On appeal the learned District Judge in dealing with the appeal said: 'the learned Munsif found that the plaintiff had no title to the lands in suit that he had not acquired any right in the land by his alleged adverse possession and that, he has a right of way over the existing darja as admitted by the defendant'. Then in dealing very briefly with the evidence he came to the conclusion that the plaintiff had not proved his title and he dismissed the appeal. It cannot, therefore, be said that he decided the question as to whether the defendant in that suit who is the plaintiff in the present suit had or had not any title to the land in question. 'When the judgment of a Court of first instance upon a particular issue is appealed against, that judgment ceases to be res judicata and becomes res subjudice, and if the Appellate Court declines to decide that issue and disposes of the case on other grounds, the judgment of the First Court upon that issue is no more a bar to a future suit than it would be if that judgment had been reversed by the Court of Appeal'. This is the principle enunciated in the case of Nilvaru v. Nilvaru 6 B. 110 : 3 Ind. Dec. (N.S.) 531, and applying this principle to the present case it seems quite clear to me that the Appellate Court did not decide the issue as to whether or not the defendant in that case who is the plaintiff in the present case had or had not a title to the land. The only question which the learned District Judge decided was whether the plaintiff who is the defendant in the present suit had any title and he decided that he had not. In the present suit the plaintiff, who was the defendant in the former suit, prayed for a declaration of title and for possession. He has, therefore, as against the defendant to prove his title. It is not sufficient for him to say that the defendant in this suit has no title which is the only question which was decided in the other suit. He must prove his own title in order to succeed. In this view of the matter I think the, former judgment does not operate as res judicata so far as the title of the plaintiff in the present suit is concerned. I, therefore, set aside the judgment and decree of the learned District Judge and send the case back to him in order that he may decide the appeal on the merits. Costs of this Court will abide the result.