A subsequent suit for partition of joint family property is barred by res judicata if the omission to include a particular property in the previous suit was due to a mistake of the court.

( 1 ) THIS is an appeal under the Letters Patent against the decision of a single Judge of this Court. The facts have been fully and clearly set out in his judgment, a report of which is to be found in 1955 Andhra Law Times 243 (Civil ). The only point for determination in this appeal is whether the suit on the file of the Subordinate Judge s Court, Tenali, out of which the present appeal arises instituted by the respondent-plaintiff is barred by res judicata because of an earlier suit, O. S. No. 318 of 1939 on the file of the District Munsif s Court, Repalle, which he himself had instituted.

( 2 ) THE controversy relates to only one item of property described as item 2 of the plaint schedule. This item was the same as item 8 in the A schedule, to the plaint in the previous suit and it comprises Ac. 1-43 cents of wet land covered by demarcation no. 1154/5-B of Intur village. The respondent sought the relief of partition in respect of 8 items of the property described in that schedule and the first issue in o. S. No. 318 of 1939 was whether the suit properties were properties belonging to the joint family of the plaintiff and the defendant. That issue was decided against the respondent by the trial Court but in appeal it was decided in the affirmative by the learned Subordinate Judge who remanded the suit for determination of the other issues. There was also a question raised in that suit as to whether some of the alienations made by the present appellant were not binding on the respondent. This latter issue however did not touch item 8. On the finding therefore that item 8 was joint family property, the preliminary decree should have included a direction for division of this item also. But, as a matter of fact, it did not. That decree was dated 23rd August, 1946. On 5th July, 1948 the respondent filed an unnumbered interlocutory application marked as Exhibit B-9 in the present case in which the prayer was "that the Honourable Court be pleased to amend and/ or review the preliminary decree by directing division of 1 acre 43 cents wet covered by D. No. 1154/5-B of Intur village-between plaintiff and. . defendant".

( 3 ) THIS was rejected on 6th August, 1948 on the ground that court-fee for review was not paid. The present plaint is based upon the allegation that the plaintiff, being guided by an "incorrect private office copy was under a wrong impression as well as confusion about the items and schedules filed in the Repalle suit," and that it was only after some time that he discovered that the present item remained unnoticed and ignored both at the time of the preliminary decree as also at the stage of the final decree. It is stated therein that as " the plaintiff did not obtain enforcement of his claim in respect of this property," " by reason of mistake and inadvertence", he is obliged to file the present suit. Paragraph 10 of the plaint recites :-"the plaintiff s claim for partition being a continuing and locurring one, the cause of action for the suit arose in August, 1948, when the defendant refused peaceful division, on 14th November, 1948, when the plaintiff discovered the mistakes committed regarding the items in the schedules filed in the Repalle suit. "

( 4 ) THE learned Subordinate Judge dismissed the suit. But, on appeal, our learned brother set aside the dismissal and decreed partition. He was of the view that there is a conflict as regards the applicability of the doctrine of res judicata to partition suits between two bench decisions of the Madras High Court------One reported in Kandum venkalaswamy v. Baligadu, (1915)19 M. L. T. 43 : 32 I. C. 179, and the other sethurama Sahib v. Chotta Raja Sahib, 1917 M. W. N. 327, and he chose to follow the earlier one. According to the learned Judge, there is no discussion in the latter case " in what respects, the well-considered judgment in jogendra Math Rai v. Baladeo Das, (1997) I. L. R. 35 Cal. 961, is wrong or opposed to principle" a judgment from whic