The main legal point established in the judgment is the revival of easement after partition and the absence of bar by res judicata in a partition suit.

JUDGMENT

Sen, J. - This appeal is by defendants 1 and 2 and it arises out of a suit for a declaration of a right of way and of a right of passing drainage and rain water from the land of the plaintiffs over the land of the defendants. The plaintiffs claimed this right on three grounds, namely (1) by virtue of a grant, (2) as an easement of necessity and (3) as having been acquired by prescription. The defence taken consisted of a denial of any such right. It was alleged further by the defendants that if there were any such right it had become extinguished by the plaintiffs' acquisition of a share in the servient tenement, which was possessed by the defendants. Both Courts have held that the plaintiffs have got a right of way, and that they have acquired it by prescription. They have found that the plaintiffs' case of acquisition by the other two means has not been made out. They have also found that the plaintiffs have not got a right of passing their drain water and rain water over the land of the defendants. Against this decision defendants 1 and 2 have appealed. There is no cross-objection.

2. Certain facts will have to be stated for the purpose of appreciating the points which have been raised on appeal. The plaintiffs were the owners of a homestead. This is the dominant tenement. South of the homestead is a plot of land and south of that is a road known as Thana road. The claim of the plaintiffs is that they have always passed from their homestead to the Thana road by a pathway over the southern plot of land which belonged to defendants 1 and 2 and before them to their predecessors. This right the plaintiffs claim has been exercised by way of an easement and as of right without interruption for a period of about a hundred years. In the year 1928, the plaintiffs purchased a share in this land to the south of their homestead and were in joint possession of that land with defendants 1 and 2. In the year 1930 the defendants brought a suit for partition of this southern land and in August 1932 a decree for partition was passed by which the plaintiffs were given a portion of this land, which has been described as lot No. 2, and the defendants were given a portion of the land described as lot No. 1. Now, this pathway passes over the entire length of lot No. 1, and over a small portion of lot No. 2. Both Courts have found that the plaintiffs had by prescription acquired a right of way over the southern land as an easement long before the plaintiffs purchased any portion of the southern plot. This finding is now not challenged. What is urged on behalf of the defendants is that the plaintiffs' easement was extinguished as soon as they acquired the right of a co-sharer in the servient tenement, and it is contended that after the partition decree this right could not be considered as having been revived or recreated, as this pathway was not a pathway of necessity. Both sides agree that the pathway is not an easement of necessity.

3. The second point taken on behalf of the appellants is that the plaintiffs' claim is bar-red by Section 11, Civil P.C., and also by principles analogous to res judicata. This argument is founded on the following facts. In the suit for partition, the plaintiffs, who were the defendants, alleged in their written statement that there was this right of way over the land which was the subject-matter of the partition. In spite of this allegation, there was no decision obtained regarding the existence of this right of way; the learned advocate for the appellants contends that it must be held that this question cannot be reagitated in the present suit.

4. I shall take up for consideration, first, the question whether the right of way has been extinguished by the purchase by the plaintiffs of a share of the servient tenement. My attention is drawn to a passage in the judgment of Mookerjee J. in Tinkori Pathak Vs. Ram Gopal Pathak and Others, AIR 1923 Cal 8 . The passage is as follows:

The principle applicable to oases