Dismissal of a suit on the ground of abatement without any adjudication on merits does not operate as res judicata in a subsequent suit.

Ahmad, J.

1. The rule in this case has been issued at the instance of the defendant-petitioner calling upon the plaintiffs and some of the defendants, who constitute the opposite party, to show cause why the order dated 10th April 1956, passed by the trial Court holding that the defence of the defendants is barred on the principle of res judicata be not set aside.

2. The conflict here between the parties substantially centres round the question of title and possession as to five annas and four pies milkiat interest in village Tilberia, bearing touzi No. 1474 in the district of Saran. Originally two suits had been instituted in that regard. The first was by the defendant-petitioner and that was in the first Court of Munsif, Siwan, bearing Title Suit No. 43 of 1951. Therein the relief sought was for the declaration of title land confirmation of possession over that property. The other, namely, Partition Suit No. 38 of 1952, which has given rise to this application, was instituted by the present plaintiffs-opposite party and that was in the Court of the Subordinate Judge, Chapra. Therein the relief sought was one for partition of that share, namely, five annas and four pies, on the plea that the same was acquired by them under an auction purchase and a zerpeshgi bond. In answer thereto the plea set up by the defendant-petitioner was the same as that averred in his plaint of the former suit.

3. It, however, appears that subsequently on application made by the one or the other of the parties, the previous suit, namely, Title Suit No. 43 of 1951, was got transferred to the same Court where the latter suit, namely, Partition Suit No. 38 of 1952, was still pending for disposal.

4. There a petition was filed in Title Suit No. 43 of 1951 on behalf of the defendants of that suit that one of them, namely, Lachmi Singh was dead since long but in spite of it no step had been taken for any substitution. So according to them that suit had abated as a whole. The Court, on hearing the parties, accepted the contention and accordingly dismissed that suit on that ground without any adjudication on merit. Thus, thereafter, only the other case, namely, Partition Suit No. 38 of 1952, was left on the record for disposal on merit. But subsequently therein it was asserted that the defence of that case on the question of title and possession being founded substantially on the same facts as alleged in the plaint of the former suit, the dismissal of one would operate as res judicata in the other to that extent and as such there was nothing left in that case also to be discussed on merit. This submission also found favour with the Court giving rise to the order under revision. Hence the application.

5. Here the order has been challenged mainly on two grounds : (1) that Title Suit No. 43 of 1951 was not heard and decided and that there was no adjudication on merit and (2) that the parties in the two suits were not ex- actly the same. Therefore, in no case an order passed in Title Suit No. 43 of 1951 could operate as res judicata in the other.

6. In my opinion, the first ground alone is sufficient to dispose of this case and, therefore, it is not necessary for me to give any decision on the other.

7. One of the essentials for the operation of the rule of res judicata, as laid down in Sec.11 of the Code of Civil Procedure, is that the former suit should have been heard and finally decided, Res judicata," said Romilly in Jen-kins V/s. Robertson, (1867) 1 Sc & Div 117 (A),

"by its very words means a matter upon which the Court has exercised its judicial mind and has come to the conclusion that one side is right and has pronounced a decision accordingly. In my opinion, res judicata signifies that the Court has, after argument and consideration, come to a decision on a contested matter."

Therefore, it is clear that in order to substantiate a plea of res judicata, it is not enough that the parties are the same and that the same matter is in issue, it must a