JUDGMENT
S.C. Mohapatra, J.
1. Plaintiff is the appellant against dismissal of a suit for partition of ancestral properties of a Hindu family.
2. Case of the plaintiff is that parties were possessing properties for mutual convenience by separation of status but there was no partition by metes and bounds. By amendment of the plaint it was asserted that in case it is assumed that there was a previous partition the same being inequitable, mistakes and not being binding on the plaintiffs is to be re-opened.
3. Defendants filed their written statements. Their main case is that there has already been a partition and accordingly, there is no scope for partition afresh. They rely upon the finding in an earlier litigation between the parties where it was held that there has been partition.
4. Plaintiff examined five witnesses and proved the documents marked as Exts. 1 to 6. Defendants examined three witnesses and proved the documents marked as Exts. A to E. Considering these materials trial Court held that the earlier decision is res judicata and as such it shall be accepted that there was a previous partition. Since there was a previous partition there is no scope for partition afresh. This is the grievance of the plaintiff.
5. Learned counsel for the appellants submitted that previous decision in Ext. 2 cannot be held to be res judicata. There was no Issue settled on the question of previous partition. Although plaintiff of that suit claimed land measuring 6 decimals only to be exclusive property, defendants including the present plaintiff claimed that the properties are joint family properties. Therefore, a finding of partition of the family in such a suit would not be res judicata specially when the earlier decision is in the Court of Munsif which was not competent to try and decide the present suit on account of pecuniary jurisdiction. Learned counsel for the respondents, on the other hand, submitted that in view of the explanation VIII to Section 11, C.P.C. the decision would operate as res judicata.
6. In order to avoid the finding of res judicata which is the main thrust for the decision of the trial Court, learned counsel submitted that earlier decision was in the Court of Munsif which is not competent to try this suit for want of pecuniary jurisdiction and no issue relating to prior partition was settled in the earlier suit and hence the finding in respect of 6 decimals of land would not be res judicata in this suit.
7. Earlier suit 0. S. No. 310 of 1968-1, filed by Sudarsan (defendant No. 13) and his brother Manguli (defendant No. 12) as plaintiffs was in respect of title and possession of6 decimals of land which they claimed to be their exclusive property. Suit was against plaintiffs in the present suit who were defendant Nos. 2 and 3 therein. They claimed in the written statement that the land was joint family property but sometime before settlement operation, there was difference between the brothers for which as an amicable arrangement for mutual convenience properties were possessed separately excluding the homestead. Thus, on the pleadings in the said suit, though an issue whether the parties constituted a joint family or there as partition by metes and bounds arose for consideration, no issue was settled specifically to that effect. Question was, however, raised specifically. Ext. C. is the judgment of the trial Court. In the said judgment, it was observed that:
“But it is contended by the plaintiffs that there was partition by metes and bounds among their predecessors in interest and their co-sharers and upon such partition the suit property exclusively fell to the share of Panchu and Ghana. On the other hand, the defendants have, in paragraph 11 of there written statement, averred that there was no such partition and that they are still joint with the plaintiffs and other co-sharers in respect of the suit property which is, admittedly, a homestead land. The defendants have further averred that by an amicable arrangement the parties and their co-sharers are in separate possession of all the joint family properties excluding the homestead lands.”
So observing, the trial Court posed :
“The question, therefore, is as to whether there was partition by metes and bounds among the predecessors in interest of the parties and their co-sharers.”
Answering the same, Trial Court has held that :
“In the circumstances, I am inclined to hold that there was partition between the predecessors in interest of the parties and their co-sharers.”
This decision was the subject matter of appeal in Title Appeal No. 26 of 1972 in the Court of District Judge, Puri (Ext. 3). In appeal one of the points for consideration was ;
“Whether there was partition between the branches of Iswar and Kantha long ago even prior to 1927 and whether the suit land was also the subject matter of such partition 7”
It was held on consideration of the evidence that :
“Thus, from the oral evidence and the recitals in Ext. 1, I find that there was partition between the parties prior to 1927 and that in such partition the suit land was also the subject matter of partition.”
Thus, one of the requirements of res judicata i. e. matters directly and substantially in issue in this suit was also in the former suit where parties were litigating under the same title is satisfied and absence of settlement of an issue specifically would not affect the finding for the purpose of res judicata where parties led evidence on the question.
8. It is submitted by learned counsel for appellant that dispute in the former suit was for 6 decimals only and cause of action was also different. It is true that indentity of subject matter and cause of action were essential under Civil Procedure Code, 1859 to attract res judicata. Civil Procedure Code of 1877, 1882 and the present Code of 1908 have removed this requirement. In place of the term “the Civil Court shall not take cognizance of any suit brought on cause of action which shall have been heard………” in 1859 Code, now the term is no Court shall not try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit”. This change in language makes it clear that cause of action need not be the same. To find out title whether oh 6 decimals or larger area, the question for consideration would be the same. Answer to such question would be res judicata.
9. Next submission of learned counsel requires careful consideration. It is submitted that the present suit could not have been tried in the Court of Munsif as it is beyond the pecuniary jurisdiction of the Court of Munsif. There is no dispute in this respect. Learned counsel therefore, submitted that Court of Munsif which tried the former suit not being competent to try this suit, the judgment would not be res judicata. This submission is supported by a Division Bench decision of this Court reported in ILR 1962 Cut. 296 (Chintamani Barik and Anr. v. Chari Bewa), where the title to the property put to issue in an application Under Section 276 of the Indian Succession Act was in issue formerly in a suit tried in the Court of Munsif. It was held that Court of Munsif not being competent to try a proceeding Under Section 276 of the Indian Succession Act, decision of the Court of Munsif would not operate as res judicata even though decision of the Court of Munsif was confirmed by High Court. If this decision would apply, submission of learned counsel has great force. This decision is based on the principle of jurisdiction of the Court trying the former suit to try the subsequent suit or proceeding is limited by jurisdiction which may be over the subject matter of litigation either being territorial or pecuniary. There may be other limitations on the Court to try a suit. To avoid this difficulty, Section 11 was amended by act 104 of 1976 and Explanation VIII was added. It reads as follows :
“Explanation VIII :-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, not withstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”
This newly added explanation was considered by a Division Bench of this Court in the decision reported in ILR (1981) 2 Cut. 73 (Kurnarmoni Sa v. Himachal Sahu and Ors.) where question of applicability of Section 11, CPC where pecuniary jurisdiction was involved was considered. It was held that decision rendered by Civil Courts of limited pecuniary jurisdiction operates as res judicata and the fact that such Court rendering the decision is not competent to try the subsequent suit is immaterial in view of explanation VIII added to Section 11. This decision of the Division Bench fully applied to the present case and submission of learned counsel has no effect. Principle that in cases of two decisions of Division Bench of concurrent jurisdiction, the earlier decisisionis to prevail over the latter decision, has no application since in the present case earlier decision was rendered at a time where the law was not amended. On amendment of the law, latter decision having being rendered, the same shall prevail. Hence, Exts. C and 2 would operate as res judicata.
10. Once it is held that there was partition by metes and bounds though such finding in respect of 6 decimals only, the principle laid down in AIR 1976 SC 1 (Ratnam Chettiar and Ors. v. S. M. Kuppuswami Chettiar and Ors.) would be attracted where it has been held that partition which is an act inter vivos cannot be lightly set aside As has been held by this Court in the decisions reported in ILR 1973 Cut. 96 (Hans Chandra Panda v. Lalit Mohan Panda and Ors.), and 39 (1973) CLT 1164 (Nira Dei v. Sadasiba Mahanta & others), in absence of clear evidence from partial partition inference of complete partition can be drawn. This would be fully applicable since there is no clear evidence of the partition being inequitable and trial Court has rightly indicated that the said assertion has not been made in the plaint relating to the nature of prejudice to the plaintiffs. Accordingly, the partition which is an act of inter vivos is not to be re-opened,
11. Learned counsel for the appellants submitted that trial Court ought to have considered the documents marked as Exts. 1,6 and7. Exts. 6 and 7 are the two sale deeds executed jointly by some defendants. From this conduct, it is submitted that inference is to be drawn that the parties continued to be joint even in the year 1946, In the absence of any clear statement in Exts. 6 and 7 that the parties transferred their interest in joint family properties, I am not inclined to draw such an inference. Ext. 1 series are rent receipts. These rent receipts stand in joint name of the parties. From this it is submitted that an inference of jointness should be drawn. I am not inclined to accept the same as the rent receipts are granted on the basis of record-of-rights. If the ROR continues joint the rent receipts having been granted jointly, the same could be no evidence of continuance of joint status in respect of the properties when there is a clear finding in an earlier suit that there was partition by metes and bounds in the family.
12. In the result, there is no merit in this appeal which is accordingly, dismissed with costs.