JAI MANGAL DEO Vs. SRI RANI BEDSARAN KUAR

JUDGEMENT

(1.) The facts of this case are set forth in our judgment in the connected Second Appeal No. 67 of 1910 in which we held, in concurrence with the Court below, that the question of the title of the plaintiff-respondent was res judicata. In consequence of our decision in that case the learned Advocate for the appellants contends that we must be taken to have held that the plaintiff had no title to the property in suit and that, therefore, she is not entitled to maintain her, claim against any of the defendants. I do not agree with this contention. We have not in deciding the connected appeal, held that the plaintiff has no title. All that we have held is that the question of her title being res judicata against those defendants who were respondents to that appeal the issue as to her, title could not be tried, as against those defendants. As the appellants were no parties to the suit in which the previous judgment was passed that judgment cannot operate as res judicata as between them and the plaintiff. This is conceded, but it is said that the title of the plaintiff being a part of her cause of action she cannot set it up against the appellants because it must be held that she has no title to the property in suit. As to this I may first observe that if she has no title as against some of the defendants it does not follow that She has none against the other defendants also. In the next place, as I have pointed out above, it has not been decided in (he suit that the plaintiff has no title. What has, been decided is that, in consequence of the decision in the former suit, she is precluded from setting up her title against those defendants who were defendants to that suit and that the issue as to her title cannot be determined as against those defendants. That, however, cannot bar the trial of the issue as against the defendants-appellants Who were not parties to the former suit, and the Court below was right in ordering a trial of that issue.

(2.) It is next urged that, in view of Explanation VI to Section 11 of the Code of Civil Procedure, the former judgment must be held to be res judicata. This contention is, in my judgment, equally untenable. The parties to the former suit did not litigate in respect of a private right claimed in common for "themselves and "others." The defendants to that suit set up their own right to a part of the property and also alleged that another part of the property belonged tothe appellants to this appeal, but they did not assert any right which was common to all of them. In order that the explanation may be applicable there must be community of interest such as is referred to in Order I, Rule 8; In the present case there was no community of interest. It is admitted that if in the former suit a decree had been passed in favour of the plaintiff it would not have been binding on the appellants. Why then should it be binding because the suit was dismissed? In my judgment Explanation VI has no application to a case like this.

(3.) For the above reasons I would dismiss the appeal with costs. Karamat Husain, J.