JUDGMENT

1. This is an appeal by Durbali Panday, defendant 2, against the judgment and decree dated 16th April 1931 of the learned Subordinate Judge of Sultanpur, upholding the judgment and decree dated 10th October 1930, of the learned Munsif of Amethi at Sultanpur. It arises out of a suit for partition of the family property.

2. In order to elucidate the point of law which arises for determination in this appeal it is necessary to state the family pedigree, and some facts which are no longer in dispute. (sic)

3. At the time of the first Regular Settlement Ramdat, Dwarka and Nanku, as representatives of the family, obtained a decree for certain "Qabzadari" rights from, the Settlement Court. By a mutual arrangement amongst the members of the family, the branch of Khushal held 7-an-has share and the branch of Nohri the remaining 9 annas share in the decreed lands. Baijoo, the last surviving male member of the branch of Khushal. died about 1888, and was succeeded by his widow, Mt. Indtani. On Mt. Indrani's death, which took place about 1906 or 1907 Ram Narain took possession of the entire 7 annas share belonging to the branch of Khushal. In the branch of Nohri, Hardwar died childless, thus making the line of Ajudhia extinct. As a result of this, each of the remaining five branches of the sons of Nohri became entitled to a one-fifth of 9 annas share. Neemar, son of Durga, was unheard of for some years, and his one-fifth share also appears to have been taken possession of by Ram Narain. Sheo Ratan disputed the right of Ram Narain to succeed to the entire share which had been held by Mt. Indrani, and to any portion of the share of Neemar and wanted to bring a suit to recover a half of the share of Mt. Indrani, and the whole share of Neemar from Ram Narain, on the ground that he was entitled to a moiety of Mt. Indrani's share, and the whole of Neemar's share. In order to raise funds for the suit he sold half of his actionable claim to Sheo Charan. In 1912 Sheo Ratan and Sheo Charan jointly brought a suit against Ram Narain to recover half of the 7 annas share of Mt. Indrani, and the one-fifth of 9 annas share of Neemar. This suit was decided by a compromise (Ex. 30), dated 31st January 1913, under the terms of which Neemar's entire share was allowed to Ram Narain and the 7 annas share of Mt. Indrani was taken equally by Sheo Ratan, Sheo Charan and Ram Narain. Soon after this, on 15th February 1913, Durbali filed a suit claiming joint possession of a one-fourth share in 7 annas of Mt. Indrani and the one-fifth of 9 annas share of Neemar. All the surviving male members of the family, namely, Ram Narain, Sheo Ratan, Sheo Charan, Basdeo and Rang Nath, were impleaded as defendants in the suit. This suit was dismissed on 12th August 1913 (Bxa. A-4 and A-3). In September 1915 Durbali filed another suit, claiming a one-third share in the entire 16 annas of the property for which a decree had been passed by the Settlement Court against Ram Narain, Sheo Charan and Rang Nath. In this suit it was held that Durbali was not entitled to any share in 7 annas of Khushal's branch, or in the one-fifth of 9 annas share which was held by Neemar. As a result of these findings, Durbali was given a decree only for the one-fifth of 9 annas share which represented the share of Sheodin's branch.

4. The present suit was instituted by Sheo Charan claiming partition of the one-third out of 7 annas which had been decreed in his favour under the compromise (Ex. 30), and of the one-fifth of 9 annas to which he was entitled as representing the branch of Jagat Ram. Rang Nath, Durbali and Basdeo were impleaded as defendants 1, 2 and 3 respectively. The suit was contested on various grounds which it is not necessary to state in detail because the controversy in this appeal is limited to one ground, namely, the plea of res judicata. The learned Munsif rejected all the pleas raised in defence, and decreed the plaintiff's claim in full. Ho also directed that if defendants