Bhandari, J.—This second appeal has been referred to a Division Bench by Ranawat, J. as it involves an important point of law relating to res judicata and has come before us for hearing.

2. For the proper understanding of the case, the following pedigree table is given—

Shah Shankarlal

Pannalal(widow Lalkunwarbai) Chakchand Maganlal

Jowaharlal(Deft. No. 1).

Chhhganlal(Plaintiff) Kesrimal(Deft. No. 2) Shantilal(Deft. No. 3) Kantilal(Deft. No. 4)

3. On the 4th of April, 1942, Chhaganlal filed the present suit in the court of Sadar Devani Raj Devgarh, Partapgarh State. It is alleged in the plaint that in Smt. 1956 a partition had taken place amonst the three sons of Shankarlal by which one house situated opposite the house of Bhuraji in the town of Partapgarh was allotted to the share of Maganlal while another house situated in Gopalganj was jointly allotted to Pannalal and Chokchand and the movable property remained in the possession of the widow of Panna Lal. This partition was confirmed by the parties subsequently. The house in Gopalganj remained in the possession of Pannalal and Chokchand. Pannalal died issueless and Chokchand died leaving four sons. After the death of Chokchand, his four sons became the owners of the whole house in Gopalganj. Mst. Lalkunwar Bai widow of Pannalal had mortgaged a portion of the house with Jawaharlal defendant No.1 on the 20th February, 1937 for Rs. 1,000/- and the plaintiff had already filed a suit for the cancellation of the mortgage which was then pending. The plaintiff further alleged that on the 5th of April, 1939, the defendants has divided the property of Pannalal amongst themselves, which was against the interest of the plaintiff. The plaintiff claimed one fourth share in the house in Gopalganj. The defendants contested the suit on various grounds. One of the pleas taken by defendant No. 1 was that of res judicata on the ground that on the 3rd of July 1947, the High Court of Partapgarh had dismissed the previous suit filed by Chhaganlal. It was held in that case that after the partition of Smt. 1956, there was no reunion between Pan(nalal and Chokchand, that they were not members of the joint Hindu family but were separate and Chhaganlal or his sons did not become the owner of the property left by Pannalal. It was further held that at the time of the death of the widow of Pannalal, her daughters and their sons were living and were the nearest next reversioners and that the plaintiff was not entitled to maintain the suit.

4. The present suit was tried by the learned Civil Judge, Partapgarh, and it was decided by him on the 18th of November, 1952. He granted a preliminary decree to the plaintiff. He ordered that the house in dispute be divided in two equal parts. In one half, the plaintiff and the defendants were held entitled to get one fifth share each as heirs of Pannalal. In the other half, the plaintiff and defendants No. 2, 3 and 4 were to have equal shares as the heirs of Chokchand. It was also provided that the plaintiff and the defendants shall pay the mortgage money in equal shares to redeem the mortgage of defendant No. 1. A Commissioner was appointed to divide the property by metes and bounds according to the above directions.

5. Jawaharlal filed an appeal to the court of the District Judge Partapgarh, which was dismissed on the 15th of September, 1954, The plea taken up by Jawaharlal that the suit was barred by res judicata on account of the decision of the High Court of Partapgarh was rejected by the learned District Judge. Hence this appeal on behalf of Jawaharlal defendant No. 1,

6. In this court, the main argument, urged on behalf of the appellant Jawaharlal is that the present suit is barred as the decision of the Partapgarh High Court dated the 3rd of July, 1947 operated as res judicata. In this connection, it may be pointed out that the widow of Pannalal died on the 20th of March, 1937 and the previous suit was filed on the 15th of February, 1940 after her death. That

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