Judgment :

Rajasekhar Mantha, J.

1. The subject appeal is directed against the judgment and preliminary decree dated 19th December, 1994, passed by the learned Additional Sessions Judge, Purulia in Title Suit No. 89 of 1990.

2. The suit for partition was filed in respect of the properties standing in the name of the common ancestor/predecessor-in-interest of the parties, one Dhanu Gope. The schedule to the plaint, inter alia, has set out the properties in CS Khatian No. 21 comprising 5.24 acres of land and in CS Khatian No. 23 comprising about 70 acres of land in the district of Purulia under PS Purulia Mufassil.

3. The question involved in the subject appeal is whether the properties comprising in CS No. 21 having not been made the subject matter of a prior suit for partition, can at all be made subject matter of the present/subsequent partition suit. A further issue would arise, i.e. whether there is evidence on record to suggest that the properties in CS Plot no. 21 are the joint properties of the the common ancestor Dhanu Gope.

FACTS OF THE CASE

4. The predecessor-in-interest of the present plaintiffs and defendants filed the partition suit being TS No. 184 of 1926 (first partition suit). The subject matter of the said suit were the properties standing in the name of Dhanu Gope in CS Khatian No. 23

5. The first partition suit resulted in a compromise decree dated 4th June, 1929. The said compromise decree set out the shares of 8 predecessors of the present plaintiffs and defendants qua the properties comprised in CS Khaitan no. 23. There was, however no mention of any property under CS Khatian No. 21 in the said suit or the compromise decree. Admittedly apart from appointment of a commissioner for partition the properties no final decree was passed and the formal subdivision of properties did not occur.

6. The present suit, Title Suit No. 89 of 1990(second partition suit), filed by the present plaintiffs and defendants, who are the descendants of the parties of the first partition suit, seeks partition the properties of Dhanu Gope, allegedly comprised in CS Khaitan. 21 and CS Khatian No.23. Admittedly CS Khaitan no. 21 was left out from the ambit of the first partition suit. The properties in CS no. 21 however were very much in existence at the time of the filing of the first partition suit. The second partition suit therefore has to be considered in light of principle of constructive res judicata as well.

7. The plaint of present suit mentions the earlier TS No. 184 of 1926, and the compromise decree dated 4th June 1929. A report of the Commissioner of partition dividing the properties comprised in CS. No. 23 filed in the earlier suit was also referred to in the said plaint. There is, however, no explanation in the plaint as to why CS Khatian No. 21 was not made the subject matter of the first partition suit.

8. In the written statement filed in the present suit, the appellants, inter alia, pleaded as follows:

a. The suit is barred by the principles of res judicata and bad for non-joinder of parties.

b. Section 11 of the CPC was invoked by the appellants, inter alia, on the ground that all properties that stood in the name of the original predecessor of the parties, Dhanu Gope were already partitioned by the reason of the earlier compromise decree dated 4th June, 1929 passed in TS No. 184 of 1926 and the report of the Commissioner of the partition. It was also contended that since thereafter, the successor in interest of Dhanu Gope are holding their respective properties.

9. Across the bar, Mr. Mahato, learned Counsel for the appellant/defendants in the suit has admitted that two portions of Khatian No. 23 namely Bakshi Bandh Tarn and Tilai Bandh Tarn must be deemed ejmali properties without partition. As per report of the Commissioner or partition in the earlier suit, the usufruct thereof namely the standing trees were be sold and the proceeds thereof were to be equally distributed between the plaintiffs and/or their successor in int