1. In the suit out of which this appeal has arisen the plaintiff sued for the partition of certain properties. His case was that the properties in suit belonged to one Srimanta. Srimanta left three sons and three daughters. The sons were Nitai Makhan and Ram Lal. Two of the sons Makhan and Nitai died unmarried after the death of Srimanta. Their mother PraMoyi, therefore, inherited their share of the property. Plaintiff purchased this share from Prasanna Moyi. Plaintiff's case; is that he has in a previous Suit No. 670 of 1916 established his title to these lands and that as he has been dispossessed of some of the lands he has brought this suit for partition. Defendant No. 1 is the widow of Rakhal son of Prem Moyi one of the daughters of Prosanna Moyi. Her case was that plots Nos. 2, 3, 7 and part of plot No. 4 were purchased from Ram Lal the husband of Hira Moni defendant No. 2 and that the plaintiff has no claim to partition.
2. The Trial Court decreed the suit of the plaintiff. He ordered that the title of the plaintiff be declared to a two-thirds share of the land in dispute and that of defendant No. 2 to a one-third share less the lands that had been conveyed by Ex. A which would go to the defendant No. 1.
3. On appeal the Appellate Court found that the suit for partition did not lie. That the previous Suit No. 670 of 1916 did not operate as res judicata, that the lands had been amicably partitioned before between the plaintiff and the defendants excluding the lands that were in possession of defendant No. 2 and totally dismissed the suit of the plaintiff.
4. In appeal to this Court it has been con-tended on behalf of the appellant that the decision in the Suit No. 670 does operate as res judicata. That this suit determined the title of the plaintiff to the lands in, dispute and it also determined the question of the adverse possession of the defendants which it decided against them.
5. We think that this contention is correct.
6. In that suit it was determined that, the plaintiff had title to the share that he claimed in plots Nos. 4 and 7. To determine this point it was necessary to determine the title of the plaintiff to his share in the whole of the lands that had been left by Srimanta. The lower Appellate Court has held that this decision was based on an erroneous view of the law and hence did not operate as res judicata. In support of his decision he has referred to two authorities one reported as Alimonnessa Chowdhurani v. Shama Charan Roy 1 C.L.J. 176 : 9 C.W.N. 466 : 32 C. 749 and the other in Parthasaradi Aiyyangar v. Chinnakrishna Ayyangar. 5 M. 304 : 2 Ind. Dec. (N.S.) 211.
7. In the case reported as Alimonnessa Chouidhurani v. Shama Charan Roy 1 C.L.J. 176 : 9 C.W.N. 466 : 32 C. 749, it was held that an erroneous decision on a pure question of law did not operate as res judicata in a subsequent suit between the same parties where the cause of action in the two suits is not identical. The same view was taken in the Madras case-above referred to.
8. The appellant has referred us to the case of Aghore Nath Mukherjee v. Kamini Debi. 6 Ind. Cas. 554 : 11 C.L.J. 461. There it was held that a finding on a mixed issue of law and fact stood on the same footing, as a decision on a question of fact and operated as res judicata.
9. In the case of Dwijendra Narayan v. Jogesh Chandra 79 Ind. Cas. 520 : 39 C.L.J. 40 : (1924) A.I.R. (C.) 600, a case to which one of us was a party it was held that a judgment operates as res judicata with regard to all the findings that are necessary and essential to the judgment.
10. It is not easy to see how the decision in the previous suit proceeded on a, pure question of law. It would seem to depend on two questions of fact, viz., whether the plaintiff had purchased the lands in suit and if he had done so whether his title had been extinguished by adverse possession. In the previous suit it does not appear that the defendant did contend that the title of the present appellant had been extinguished by adverse possession. The decision in that suit did not proceed on a pure question of law but as far as can' be seen on a question of fact or mixed law and fact,
11. Moreover as far as can be seen the cause of action in the two suits is the same. In the first suit the plaintiff sued for a declaration of his title and recovery of possession of two plots, 4 and. half of' 7. His title was declared to these plots but it was held that he could not recover possession in that suit from a co-sharer but that his remedy lay in a suit for partition.
12. In this suit he is suing for partition of. these plots and some others having been deprived of possession by the defendants. It has been contended that in the first suit the plaintiff did not sue for the declaration of his title to plots Nos. 2 and 3.
13. That, no doubt, is correct. But in order to decide that suit it was necessary to decide his title to the whole two-thirds share in the whole property left by Srimanta. Applying then the principle enunicated in the case of Dwijendra Narayan v. Jogesh Chandra 79 Ind. Cas. 520 : 39 C.L.J. 40 : (1924) A.I.R. (C.) 600, the question of the 'plaintiff's title to these plots also must be held to be res judicata as between the parties. It will be observed that the parties to the two suits were the same.
14. The decision in the Suit No. 670 operates as res judicata between the parties in this suit. That being so it was not open to the lower Court to go into the question whether previous to the title suit there had been a partition between the parties.
15. The plaintiffs must, therefore, be held to have title as claimed to the two-thirds share.
16. The result is that the order of the lower Appellate Court must be set aside and the order of the Trial Court restored. The appellant is entitled to his costs in all the Courts.
17. I agree.