A fresh suit for partition is maintainable if the previous partition decree has not been given effect to by the parties proceeding to partition in accordance with it.

S.C.Prasad, J.

1. This is the plaintiffs appeal against the judgment of the Additional Subordinate Judge of Ranchi. His claim for partition of the properties mentioned in the plaint has been dismissed by the learned Subordinate Judge on the ground that the present suit was barred by res judicata, inasmuch as one of co-sharers, who is defendant No. 15 in this suit, had, in 1927, filed a suit for partition of the same properties against the same persons or their predecessors-in-interest, who were co-sharers in the properties.

That suit was decreed on compromise on the 5th January, 1929. A preliminary decree was drawn up in accordance with the terms of the compromise which were that the partition was to be affected according to the shares claimed by the parties leaving the question of determination of raiyati rights claimed by some of the defendants in some of the lands, open to be decided by another suit. It was stipulated that at the time of the final decree, the raiyati lands will be allowed to remain in possession of those who were already in possession and as far as possible those raiyati lands should be allotted to those persons. After the preliminary decree, a commissioner was appointed to divide the properties by metes and bounds, which he did. In the meantime, the appellant and defendants 1, 2 and 16 filed one title suit for declaration that the raiyati settlements claimed by some of the defendants in the partition suit, were not valid and binding, and the lands were bakasht.

The further proceeding in the partition suit was stayed. The subsequent title suit filed in 1930 was ultimately decided by this Court on the 2nd February, 1937. According to this decision, raiyati right claimed in the partition suit by some of the defendants was upheld. Thereafter on the 10th May, 1938 the plaintiff of the previous partition suit, who is one of the defendants here, applied for final decree to be passed according to the allotments made by the commissioner, The final decree was sealed and signed on the 7th January, 1939. On the 20th February, 1940 an application was made for delivery of possession according to the final decree, but some of the judgment-debtors objected under section 47 of the Code of Civil Procedure and ultimately this Court, by its order dated the 23rd September, 1941, held that the execution was barred by time. The present suit was filed by the plaintiff-appellant, who was defendant No. 1 in the previous partition suit, on the 24th November, 1945. The present suit, as I have already stated above, relates to the partition of those very lands which were the subject-matter of the previous partition suit of 1927.

2. In the plaint of this suit the plaintiff-appellant stated, after referring to the above facts in respect of the execution of the previous final decree having been held to be barred by limitation, that the parties continued in joint possession according to their shares, and that there had been no change in his possession, as the previous partition decree proved to be infructuous.

3. Several written statements were filed in this suit by different sets of the defendants raising several points, but in this appeal we are concerned only with the defence of some of the defendants that the present suit was barred by res judicata in view of the previous decision of the partition suit and the final decree passed thereunder. Some of the defendants in their written statements did not object to a decree being passed in this suit, on this-ground.

4. The learned Subordinate Judge upheld the objection of the defendants and dismissed the suit.

5. This is the only point which has been contested before us and it has been contended by the learned Counsel for the plaintiff-appellant that in the circumstances of the case the present suit for partition was not barred and the learned Subordinate Judge had erred in dismissing the suit. It was contended by the learned Counsel that there was evidence in this case which clearly