1. This is an appeal by defendant No. 9 against the decision of the Subordinate Judge of Bankura, dated the 8th August 1917. The question that arises on the appeal is a very short one, namely, whether a prior suit in which the predecessors in-title of the defendant No. 9 were parties acts as res judicata in the present suit as against the appellant, defendant No. 9
12. It appears that in the month of May 1905 the suit which it is said makes the matter res judicata was filed in the, Munsif's Court. It was found that the value of the suit exceeded the jurisdiction of the Munsif's Court, and accordingly on the 21st June 1906 the suit was re filed in the proper Court. The defendants in that suit represented two families, one of whom is described as the Kara and the others as the Mandals. We are only concerned with the Mandals who were defendants Nos. 4, 5 and 6 in that suit. On the 29th November 1907 the Mandals appeared for the first time and filed a written statement which is not before ns and for the contents of which we have to rely upon extracts from the judgment of the 31st March 1909 in Title Suit No. 193 of 1906 in the Court of the Subordinate Judge at Bankura. The Mandals in their written statement, so it appears from the judgment in the Bankura suit, stated that they had disposed of their interest to one Haradhan Chatterjee, who admittedly was the Benamdar for the present appellant defendant No. 9. The Mandal defendants contended that the suit was bad for defect of parties and that having regard to the transfer of their interest it was necessary that Haradhan and Asu Roy, the appellant before us for whom Haradhan was Benamdar, should be added as parties to the suit. The decision of the Court was that Haradhan's actual possession of the Kanpore Mouzah, which was the property in dispute so far as the Mandals were concerned, was not admitted by the plaintiff and that it was not proved, and he, therefore, found that neither Haradhan nor Asu Roy was a necessary party to the suit. He went on to add that they would, therefore, not be bound by any adjudication in the suit, and he held that the suit was not defective for want of parties. The material facts are as follows: On the 4th March 1907 two-thirds of f the rights of the Mandals in the Mouzah were sold and the sale was confirmed on the 8th April 1907; the remaining interest of the Mandals in the Mounah was sold on the 25th April 1907, the sale being confirmed on the 29th June 1907.
13. On behalf of the appellant before us two contentions were raised: First of all, it was said that at the time the properties were sold the suit was not being actively prosecuted and that there was in fact no lis pendens; secondly, it was said that after the Mandals on the 29th November 1907 filed their written statement stating that this interest in the property had passed, the suit was no longer contested so far as this interest was concerned. We have before us the order-sheet in the Title Suit No. 193 of 1906. It appears that certain witnesses were called en behalf of the defendants, but it is probable that these witnesses were witnesses on behalf of the Kar defendante, and the only part that we can find from the order-sheet that the Mandals took in the suit was that on the 23rd of March 1809 they filed certain exhibits, A5 and B5, which were put in on behalf of the defendant No. 5 and others, the defendant No. 5 being as already stated one of the Mandal defendants.
14. So far as the first contention of the appellant is concerned, we do not think that there is any substance in this. It appears that on the 23rd April 1907 the suit was dismissed for default, neither party being present. But on the 24th April 1907, that is to say, prior to the second sale of the 25th April 1907 an application was put in for restoration of the suit, and on the 4th May 1907 the suit was restored. Under these circumstances it does not seem to us that it really can be contended that there was no lis pendens at the time of the two sales in question. On the 4th March 1907, the date of the first sale, the lis was certainly pendens and on the 25th April 1907, although the suit was dismissed for default on the 23rd the application of the 24th April which was granted on the 4th May following would, it seems to up, have the effect of restoring the suit as from the date the application was made, that is, the 24th April. There is nothing in the first contention raised on behalf of the appellant.
15. In so far as the second contention is concerned, it is urged on behalf of the respondents to the appeal that once a suit becomes a contested suit it never ceases to be such, and that, therefore, this question of title was decided in a contested suit and is binding on the defendant No. 9, the appellant, as his predecessors-in-title the Mandals were parties to the contested suit. But it appears to us that it is clear that there was no real contest on the part of the Mandals after they had parted with their interest to the appellant. They had told the Court that they were no longer interested in the suit and the Court expressly stated that tie interest of Haradjhan and Ashutosh Roy would not be affected by any decision that it gave, it is not clear upon the evidence whether any searches were made upon the purchase by Asu Roy and his Benamdar to ascertain if there was any lis pendens or whether in fact Asu Roy and his Benamdar had any notice of the lis. Sa nothing turns upon that, and we desire to rest our decision entirely upon the footing that it appears to us that there was no real contest in the suit with regard to the title of the Mandals and that the appeal must succeed on this basis.
16. The result will be that the suit will go back to the lower Court in order that the issues in the suit may be decided upon the merits and that the question of title, in so far as the Successors in interest of the Mandals are concerned, may be decided in their presence and the rights of the respective parties determined.
17. The costs of this appeal will abide the result of the hearing of the suit on the merits.