MALHARI VAMAN KRAMAVANT Vs. VINAYAK RAVJI KRAMAVANT

JUDGEMENT

(1.) The plaintiffs sued the defendants from partition and possession of their one- fifth share in the lands in suit at Nagaon and Davale. The plaintiffs and the defendants are the descendants (sons) of three out of the five sons of Hari. In the first Court defendants Nos. 5 and 6 supported plaintiffs claim which was contested by defendants Nos. 1 to 4 almost entirely on the ground that the plaintiffs title was barred by time inasmuch as neither they nor their father had ever had possession of the land in suit. It was also contended that there was other joint family property which should be brought in suit. The first Court awarded plaintiffs claim, and on appeal its finding was confirmed by the Joint Judge of Thana. The defendants Nos. 1 to 4 make this second appeal. The only points taken in the appeal are, first that the suit is barred by res judicata under Section 11, Sub-section 4 of the Code of Civil Procedure, and, secondly, that it is barred by adverse possession or by limitation, the plaintiffs having been excluded from any share in the property in suit. It is not disputed that the plaintiffs as one of the five sons of Hari would be entitled to one-fifth share in the property in dispute.

(2.) It seems that there was a partition between the brothers in 1875 which is evidenced by Exhibit 21. At that partition some property including the property in suit was left undivided. I use the word undivided in preference to the word joint because in law the position of the parties is that of tenants-in-common and not joint tenants.

(3.) The question of res judicata arises in this way. In 1921 the present defendants Nos. 1 to 4 brought suit No. 85 of 1921 against the heirs of Baja, that is defendants Nos. 5 and 6 and the present plaintiff's who are the sons of Ravji, for partition of their share of certain land, Survey No. 14, Pot No. 3. It is contended on behalf of the appellants that under Section 11, Clause 4, of the Civil Procedure Code, the present plaintiffs who are defendants in that suit should have as part of their defence put forward the present claim for the partition of the remainder of the family property and had it decided in that suit and not having done so they are now barred from bringing a separate suit to recover their share in this property. As a matter of fact in their written statement, which is Exhibit 26 at page 25, defendant No. 2, who is present plaintiff No. 1, said that there was other property, namely, the property which is now in dispute in the present suit, which was kept joint and should be included in the suit and partition of the whole land should be made. It will, therefore, be seen that the present plaintiffs did raise this ground but there was no decision on this point and hence it is claimed that they cannot now raise the question again presumably on the ground that any relief which is not granted by the decree should be considered to have been refused, and in support of the proposition that the present suit is barred the learned advocate for the appellant has relied on Kameahwar Pershad V/s. Rajkwmari Ruttan Koer (1892) I.L.R. 20 Cal. 79, 85, p.c. and Gangaihar V/s. Parasharam (1905) Bom. L.R. 252. In Kameshwar Pershad V/s. Rajkumari Rattan Koer which is a Privy Council case, the plaintiff had brought two successive suits practically on the same causa of action to recover the same relief. In the first suit he sued the reveraioner as being in possession of the property chargeable with the debt due by the widow. That suit was dismissed as against him but decreed against the widow. Subsequently he brought the present suit claiming to recover from the reversioner the balance of the widow's debt on the ground that he had agreed, on taking the surrender of the estate from her, to become responsible for her debts, It was held that this was an alternative ground which he might have alleged in the former suit. Hence the present suit would not lie.