M. M. Dutt, D. C. Chakravorti, JJ.

( 1 ) THIS appeal is at the instance of the defendant and it arises out of a suit for partition. The appeal involves interpretation of the New Explanation VIII which has been added to S. 11 of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1976.

( 2 ) THE plaintiffs instituted the suit claiming partition by metes and bounds of their half share in the suit property. The principal defence of the defendant was that prior to this suit he had instituted a suit against the plaintiffs, being Title Suit No. 69 of 1961, in the First Court of that Munsif at Rampurhat, for a declaration of his title to 10 acre of land appertaining to C. S. Plot No. 1183. In that suit, it was inter alia contended by the defendant that there was a previous partition. The said suit was decreed on a finding that there was an amicable partition of the suit property. It was urged by the defendant that the finding of the learned Munsif in the said Title Suit No. 69 of 1961 would operate as res judicata in the present suit.

( 3 ) THE learned Subordinate Judge overruled the contention of the defendant that the finding in the earlier suit operated as res judicata in the present suit, for he took the view that the Court of the Munsif in which the earlier suit was instituted was not competent to try the present suit. He relied on a decision of the Supreme Court in Mst. Gulab Bai and Ors. v. Manphool Bai, AIR 1962 SC 214. On the merits of the case, the learned Subordinate Judge held that there was no previous partition as though the plaintiffs had a half share and the defendant had the other half, the defendant was in possession of 15 or 16 bighas of land and the plaintiffs were in possession of 7 or 8 bighas of land. The defence plea of previous partition was disbelieved by the learned Subordinate Judge. Acordingly, the learned Subordinate Judge decreed the suit in a preliminary form declaring the plaintiff's half share in the suit property. On appeal by the defendant against the judgment and decree of the learned Subordinate Judge, the lower appellate court also took the same view and dismissed the appeal. Hence this second appeal.

( 4 ) THE principal question is, therefore, whether the present suit is barred by res judicata. One of the conditions that must be fulfilled before the doctrine or res judicata as embodied in S. 11 of the Code of Civil Procedure can be invoked is that the Court in which the former suit was instituted must be competent to try the subsequent suit. In the instant case, the former suit was instituted by the defendant in the Court of Munsif, but the present suit has been instituted by the plaintiffs in the Court of the Subordinate Judge. It is true that in the former suit it was held by the learned Munsif that there was a previous petition of the suit property, but the learned Munsif not being competent to try the present suit, it cannot be said that the said finding operates as res judicata in the present suit. A similar question was raised before Supreme Court in Golab Bai's case referred to above and the Supreme Court, after a review of judicial decisions on the point, held that if the trial Court was not competent to try the subsequent suit the question of res judicata would not arise.

( 5 ) MR. Samarendra Kumar Dutta, learned Advocate appearing on behalf of the defendant appellant has urged that in view of the new Explanation VIII to S. 11, the question of competency of former court to try the subsequent suit has become irrelevant. The new Explanation VIII provides as follows: explanation VIII - An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. It is argued by Mr. Dutta that in view of Explanation VIII, alt

Click Here to Read the rest of this document