The judgment in a partition suit does not bind parties whose title was derived before the institution of the suit, and the lower court should first establish the facts before assuming their non-existence based on a previous judgment.

JUDGMENT

Rau, J. - This appeal is by the Plaintiffs in a suit for declaration of title and recovery of possession in respect of a certain plot of land forming part of a tenure held by a number of persons. Their case was that there had been a private partition of the tenure amongst the co-sharers and certain specific lands, assessed with a specific portion of the rent, fell to the share of one of the co-sharers, Krishnamani Biswas. Subsequently, Krishnamani's daughter Jagat Tara Dasi succeeded to his property and on November 28th, 1917, she granted settlement of a plot of land (C. S. Plot No. 2466) situated in her allotment to the predecessors-in-interest of the Plaintiffs. In 1933, the Defendants, who were some of the other co-sharers of the tenure, instituted a partition suit in the Civil Court, making Jagat Tara a party, but not impleading the Plaintiffs' predecessors. The preliminary decree in this partition suit was made on March 1st, 1934, and the final decree on March 20th, 1937, Plot No. 2466 being allotted to the Defendants. On May 21st, 1937, the Defendants forcibly dispossessed the Plaintiffs of the plot. This was the cause of action in the present suit. The trial Court decreed the suit, holding, inter alia, that there had been an amicable partition among the co-sharers of the tenure, by which the Plaintiffs' landlord was in exclusive possession of the disputed plot. The Munsif's finding on this point was "So there is no doubt that the co-sharers held the lands of the jote in severalty by a mutual private arrangement among themselves." The Subordinate Judge, on appeal, however, reversed the decree observing that although the Plaintiffs' predecessors were not themselves parties to the suit of 1933, still the person from whom they derived their title, namely, their lessor, was in fact a party and therefore there was no reason why any finding regarding the nature of their lessor's title should not be binding on them. The Subordinate Judge considered that the Munsif was not competent to go behind the judgment in the partition suit and say that there had been a previous partition by private arrangement when the Court making the partition decree had held that there had been no such previous partition.

2. Here we think that the Subordinate Judge was in error. We do not see how the Plaintiffs can be bound by the judgment in the partition suit. The lease on which they base their claim was of 1917; the partition suit was of 1933; so that their title was derived, not after the decision of the suit, but before its institution. In these circumstances, the decision cannot operate as res judicata so far as they are concerned.

3. This is not the type of case where a lease granted by one co-sharer of joint property is sought to be enforced against other co-sharers. It is a case where, if the allegations of the Plaintiffs are true, the lease was granted by the sole owner of the land after that land had been allotted to him at an antecedent private partition. The lower Appellate Court ought first to have arrived at a finding, on the evidence given in this suit, on the question whether the private partition alleged by the Plaintiffs did in fact take place, instead of assuming from the judgment in the suit of 1933 that it could not have taken place.

4. We must accordingly set aside the judgment and decree of the lower Appellate Court and remand the case to that Court for disposal in the light of the above observations. Costs will abide the result.

Mukherjea, J.

I agree.