A judgment in a previous suit will not operate as res judicata in a subsequent suit if the question of title was not decided in the previous suit.

S. BARMAN, J.

( 1 ) THIS revision is directed against an order of the Munsif, Berhampur, in Title Suit no. 224 of 1954 holding that the plaintiff is not precluded from raising the question of title in this suit and the suit is not barred by res judicata.

( 2 ) THE matter arose in this way: In 1949 the plaintiff, opposite party in the present revision petition, filed a suit being T. S. No. 151/49 (60/50 B. D. M. O.)hereinafter referred to as the first instituted suit, in the Court of the Munsif, berhampur, for among other reliefs, permanent injunction, restraining the defendants from doing certain acts as stated in the plaint of that suit.

( 3 ) THE following issues, amongst others, were raised in the said first instituted suit: "1. Whether the plaintiff succeeded to the suit schedule properties as the sole owner and has been in enjoyment and possession of the same; 2. Whether the suit properties are the Stridhan properties of late akkamma and devolved upon the defendants and whether the defendants are in possession and enjoyment of the same. " On 18-21951 the said suit was dismissed by the Additional Munsif, Berhampur. The learned Additional Munsif in his judgment gave his findings on different issues including the issues which I have quoted above. An appeal was filed against the said judgment being T. A. No. 7/53 before the Subordinate Judge, Berhampur, who dismissed the appeal upholding the decision of the learned Additional Munsif.

( 4 ) THEREAFTER, in November 1954 the plaintiff again instituted a suit against the defendants for declaration of her title over the suit properties and for delivery of possession to her. The said suit was filed in the Court of the Munsif Berhampur, as t. S. No. 224 of 1954 (hereinafter referred to as the second instituted suit ). In due course, issues were raised and it appears from records that issue No. 6 was taken up first for determination, the issue being as follows: "whether the suit is barred by reason of the judgment in T. S. No. 60/50 a. B. D. M. C. and T. A. No. 7/1953".

( 5 ) AS I have already said above this T. S. No. 60/50 A. B. D. M. O, was the first instituted suit hereinbefore mentioned which was instituted in the Court of the munsif, Berhampur, and ultimately decided on appeal, in T. A. No. 7/1953 as hereinbefore stated.

( 6 ) IN determining the said issue the learned Munsif decided in favour of the plaintiff holding that he is not precluded from raising the question of title in this suit and the suit is not barred by res judicata. The present revision is directed against this last order of the learned Munsif.

( 7 ) THE main question in this revision petition is whether the judgments of the additional Munsif and the Subordinate Judge, on appeal, in the first instituted suit decided the question of title or not. I have carefully considered both the judgments in this connection which were placed and read before me in extenso. The learned Additional Munsif in the first instituted suit while giving his decision on different issues, expressed the view that he did not deem it necessary to discuss the question of title in view of the facts stated in his judgment. Rightly or wrongly, the learned Additional Munsif, taking that view, did not decide the question of title. The said decision was, however, taken up in appeal before the Subordinate judge where he, in course of his judgment observed as follows:

"the question of title to these properties has not been gone into by the learned Court below on the assumption perhaps that this question did not materially affect the claim for a permanent injunction which was to be decreed or refused on a finding as to whether the plaintiff was in possession of the suit lands or the defendants were in possession of them as the Shridhan heirs of P. Akkamma. "

Then again, there is another passage in paragraph 6 of his judgment where the learned Subordinate Judge in arriving at his conclusion observed as follows:

"lastly 1 would say that the plaint