A plea of res judicata can bar a subsequent suit if the same subject matter has been adjudicated upon in a previous suit between the same parties or their privies.

Rai, J.

1. This appeal by the plaintiffs is directed against the judgment and decree of the Special Subordinate Judge, Ranchi, confirming those passed by the Munsif of the same place.

2. Some relevant facts preceding the institution of the present suit may shortly be stated as follows. Plot No. 720 situated within the town of Ranchi belonged to Balmakund Marwari, the present defendant No. 3. In the year 1928, one Alam Khan got a money decree against Balmakund Marwari in a small cause court suit from the Court of the learned Small Cause Court Judge at Calcutta. The small cause court decree was transferred or execution to Ranchi where the execution case was numbered as Execution. Case No. 567 of 1928.

Subsequently, the decree-holder assigned his right, title and interest in the "decree to Bhagwat Dayal Sahu, grand father of Motilal Saha, the present defendant No. 2. The assignee of the decree was thereafter substituted in place of the original decree-holder in the execution proceeding. At the auction sale held on 8-8-1933, one-third share of plot No. 720 was sold and purchased by the assignee of the decree-holder.

On 11-11-1933, the auction purchaser got delivery of possession of the one-third share of plot No. 720 purchased by him at the auction sale. In the year 1937, Baldeo Choudhary and Motilal Saha instituted Partition Suit No. 46 of 1937 for partitioning their one-third share in plot No. 720.

This suit was originally filed against Balmakund Marwari who pleaded that he had transferred his right, title and interest in the plot to his daughters-in-law, Mt. Janki Kuer and Mt. Kamli Kuer, the present plaintiffs. Thereafter, the present plaintiffs were impleaded as party defendants to the partition suit. On 31-10-1938, the partition suit was decreed, On 18-8-1939, the appellate Court affirmed the decree passed in Partition Suit No. 46 of 1937.

On 5-2-1946, the plaintiffs instituted the present suit for grant of the following reliefs: "(1) A declaration be made that the plaintiffs are fully entitled to the property described in Schedule A.

(2) Costs and interest on costs to be decreed.

(3) Any other relief or reliefs to be decreed if the plaintiffs are found entitled to."

Under Schedule A, the plaintiffs mention one-third share of the municipal plot No. 720.

3 According to the plaintiffs, plot No. 720 constituted a raiyati holding which was not transferable under the Chota Nagpur Tenancy Act, and as such, the auction purchasers in Execution Case No. 567 of 1928 had acquired no interest which was binding on them.

4. The suit was contested by defendants 1 and 2 who pleaded inter alia that the present suit was barred under Sec. 42 Specific Belief Act, and that the present plaintiffs were not entitled to question the title of defendants 1 and 2, as that plea was barred by res judicata by virtue of the decision in Title Partition Suit No. 46 of 1937. On these and other pleas they asserted that the suit was liable to be dismissed.

5. The trial Court held that the Suit was barred by res judicata and was also hit by the provisions of Sec. 42, Specific, Belief Act, but as defendant 2 had admitted the title of the plaintiffs with respect to his half share out of one-third share of plot No. 720, the suit was decreed as against defendant 2 on admission, but it was dismissed against defendant 1 with costs.

6. The plaintiffs thereafter went in appeal, but the lower appellate Court also affirmed the judgment of the Court below on the question of res judicata and on the maintainability of the suit under Sec. 42, Specific Belief Act. The lower appellate . Court further held that the provisions of the Chota Nagpur Tenancy Act did not apply to the house standing on plot No. 720, In this view of the matter, the appeal was dismissed with costs as against defendant 1.

7. The plaintiffs thereafter came up in Second Appeal before this Court Learned Counsel for the appellants contended before us that the delivery of possession given to the auctio