LAL BIHARI Vs. PARKALI KUNWAR

JUDGEMENT

(1.) The suit out of which this appeal has arisen was brought, by one Sitlu Rai for establishment of his right to and possession of certain immovable property consisting of shares in sixteen villages, on the allegation that he was the reversioner of the last "male owner of that property and that Musammat ParkaliKunwar, the. principal defendant, had no interest in that property. The lower appellate court found the facts in favour of the plaintiff and decreed his claim in respect of three villages. As regards the remaining villages the court dismissed the claim on the ground that in its opinion Section 11 of the Code of Civil Procedure barred it. The way in which the section was applied to the case was this. The name of the defendant Musammat Parkali had been entered in the revenue papers along with the name of the plaintiff. The plaintiff and the Musammat jointly applied for partition of the villages in respect of which the claim has been dismissed and the shares recorded in their names were formed into a separate mahal. The court below has held that, as both of them had applied for partition and obtained partition, the matter became res judicata in consequence of the order for partition passed by the Revenue Court. This decision of the lower appellate court was affirmed by a learned Judge of this Court in second appeal.

(2.) During the pendency of the appeal Sitlu Rai died. A question was raised before us whether the present appellants were legal representatives of Sitlu Rai and were entitled to maintain the appeal. An issue was referred to the court below on the point and it has been found that they are the legal representatives of Sitlu Rai. This finding has not been questioned....

(3.) It is urged on behalf of the appellants that the court below has erred in holding that Section 11 of the Code of Civil Procedure is a bar to the claim as regards the villages in respect of which the claim has been dismissed. This contention seems to be valid, In the Revenue Court when an application for partition was made no question of title was raised and no question of title was determined, , therefore the mere fact of a partition having been effected by the; Revenue Court does not amount to a decision of the question of title by that court which might have: the effect of res judioata upon the question of title to the property as between Sitlu Rai and the defendant Musammat Who were arrayed on the same side as applicants for partition.