Judgement

Appeal from a judgment and decree of the High Court (July 3, 1906) affirming a decree of the Subordinate Judge of Patna and Bogra (September 22, 1902).

The suit was instituted by one Kashi Das Sanyal, since deceased and now represented by the appellant, who succeeded Kashi Das Sanyal as heir to the property in suit. The claim was for a declaration of the plaintiffs title to, and for possession of, a share of a patni taluq and was made under the circumstances following.

The patni taluq in question belonged originally to Kashi Das Sanyal and certain co-sharers, his share being 1£ annas. Suits for partition by divers co-sharers were instituted from time to time. In 1886 there were three suits of this character which were tried together, Kashi Das Sanyal being in each case made a defendant and his share being stated as 1£ annas in the respective plaints. There was also a similar suit in 1892 in which Kashi Das Sanyal was also made a defendant. In this suit the first respondent Sarnamoyi Debya applied to be made a defendant and claimed partition in respect of a share which she alleged was a gift to her by her husband, Dinendra Nath. In all the above-mentioned suits decrees were made in favour of the various claimants, including Dinendra Nath, the predecessor in title of the respondents, and the shares were partitioned out by metes and

Law. Rep. 41 Ind. App. 247 ( 1913- 1914)

Nalini Kanta Lahiri V. Sarnamoyi Debya 94

bounds and the several claimants put into possession.

The plaintiff by his plaint in the fruit alleged that the land left unpartitioned was less in amount than the share to which he was entitled, and that the respondents had received and were in possession of land in excess of their actual shares. The respondents by their defence pleaded that the suit was barred by the principle of res judicata and by the Limitation Act, 1877. The Subordinate Judge decided both those issues in favour of the respondents and dismissed the suit. The High Court affirmed the judgment of the Subordinate Judge.

De Gruyther, K.C., and Ross, K.C., for the appellant. The suit is not barred by res judicata. The question raised by it was not " directly and substantially in issue " in the previous suits within the meaning of the Code of Civil Procedure, 1882, s. 13. In all the suits it was admitted that the share to which the appellants predecessor in title was entitled was 1 ½ annas. In the 1886 suits the question was how the balance unpartitioned and after deducting that 1 ½ annas share should be divided among the various claimants. Further, the first respondent was not originally a party to the suit in 1892, but was subsequently joined and obtained a partition decree; the appellant had no notice of this, and is not bound by the decree or the subsequent partition by metes and bounds. The suit is not barred by the Limitation Act, 1877, since art. 140 applies and not art. 120.

Dube, for the respondents, was not called upon.

The judgment of their Lordships was delivered by

LORD MOULTON. In this case the original plaintiff (now represented by the appellant) was one of the co-sharers of a patni taluq. In past times, others of the co-sharers have been desirous to have their shares partitioned out to them, and have accordingly brought suits for that purpose. To every one of those numerous suits the appellant was a party, and the object of each of those suits was to have the share of the plaintiff in the suit partitioned out by metes and bounds. Those suits have gone on until every co-sharer other than the plaintiff has had his share thus partitioned out, so that the plaintiff was left with the remainder as representing his share. In this suit he alleged that this remainder was insufficient to represent his share of the original patni taluq. It is evident that on examination of the claims of previous plaintiffs he had convinced himself, and, so far as their Lordships know, convinced himself correctly, that in two cases the shares ascribed to other