Section 43 of the Specific Relief Act must be read subject to section 11 of the Code of Civil Procedure.

SRINIVASACHARI, J.

( 1 ) THE respondent filed a suit for the recovery of possession of the suit property against her husband on the allegation that her father was the pattadar of the suit properties and after the death of her father, she became entitled to them. She alleged that her husband had wrongfully got the patta of the lands transferred in his name professing to be the illatom son-in-law. A suit was filed by the wife, the plaintiff herein for the cancellation of the patta and her being granted the patta and in that suit the question as to whether the defendant-respondent was the illatom son-in-law of the deceased was agitated and it was held that he was not the illatom son-in-law and the suit was decreed in favour of the wife (the daughter of the deceased ). Proceedings under section 145, Criminal Procedure code, were started by the appellant which ended in favour of the appellant. He obtained possession of the lands in pursuance of the order of the Criminal Court. The wife thereupon filed the present suit for a declaration and possession of the suit lands. The suit was resisted on the same grounds that the defendant was the illatom son-in-law and the plaintiff had no right. Among the issues that were raised in that case there was one issue relating to res judicata. The issue was as to whether the finding in the prior suit between the same parties, that the defendant herein was not the illatom son-in-law of the deceased pattadar, did not operate as res judicata. The trial Court held that the judgment in the previous suit did operate as res judicata and decreed the plaintiff s suit. Hence this appeal.

( 2 ) THE contention of the learned advocate for the appellant is that the judgment in the former suit could not operate as res judicata because the present suit having regard to the value of the claim could not have been tried by the Munsif who tried the former suit and gave a findinig on the question of illatom.

( 3 ) THE gist of the argument is that in order to operate as res judicata, it is necessary that the Court which tried the former suit must be a Court which would be competent to entertain the latter suit. Section 11, as is well known, is based upon the principle that there should be a finality to litigation. Section 11 reads as under :-"no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court".

( 4 ) THE learned advocate for the appellant relies upon the words appearing in the section, viz. , "no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit. . . . . in a Court competent to try the subsequent suit. . . . . . . " and it is argued that the above words are important and could not be ignored. Admittedly the present suit could not have been tried by the Munsif who decided the former suit, the present suit being beyond the pecuniary jurisdiction of the Munsif. This question as to whether the general principle of res judicata is circumscribed and limited in its"scope by ection 11 of the Civil Procedure Code, in other words, is section 11 exhaustive of the cases where the principle of res judicata could be applied, has been the subject of decisions by the Privy Council and the Indian High Courts. The question in the case before us would be whether by reason of the fact that the present suit is beyond the competence of the Munsif Court which tried the former suit, the previous finding as regards the illatom adoption of the respondent would not operate as res judicata.

( 5 ) THE first case that may be referred is the case of Rajah Run Bahadur Singh

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