JUDGMENT
Das, J.
1. This is a second appeal by the plaintiffs and arises out of a suit for partition. By the suit, the appellants, who are two brothers, claimed partition of their half share in Khewat No. 1/17 of village Adampur Tarari, Patti Kalan, Tauzi No. B. No. 1. The case of the appellants was that khewat 1/17 represented a separate and distinct ‘takhta’ of 6 dams, 13 cowries and odd interest in which the share of the appellants was 3 dams, 6 cowries and odd. The appellants claimed this share in the following way. It was alleged that there were two brothers called Modnarayan and Rampratap, and each of these two brothers had half share in the said ‘takhta’. The proprietary interest of Rampratap was sold in a certificate sale held on the 18th of September, 1933 and was purchased by one Sk. Latif Hussain. The sale certificate showed that 6 dams, 9 cowries and odd share in village Adampur Tarari, Patti Kalan, relating to tauzi B. No. 1, separate account No. 36, was sold to Sk. Latif. Latif in his turn sold the purchased interest to the appellants by means of a sale deed dated the 7th of December, 1933. The appellants asked for mutation of their names in Register D and were recorded in respect of 4 dams, 11 cowries and odd share. In the record of rights finally published in 1914, Rampratap and one Mahabir were recorded as owners of the khewat, the khewat being khewat No. 1/17 of khewat, Part II, of revenue free lands. Rampratap’s interest was shown as 3 dams, 6 cowries and odd, and Mahabir Mahto’s interest as 3 dams, 6 cowries and odd.
In 1912, the interest of Mahabir was given in ‘thica’ to Rampratap for a term of five years, and in khewat Part III Rampratap was recorded as the ‘thicadar’ in possession, Mahabir Mahto being shown as the landlord under whom the thicadar held. I may here state that the patti in question, namely khewat No. 1/17, comprised an area of 5.51 acres and there were three plots in the patti recorded in two holdings, holding No. 204 and holding No. 205; holding No. 204 was a holding of bakasht lands comprised in two plots, 1237 and 1238, 1237 having an area of 2.77 acres and 1238 an area of 2.64 acres. Holding No. 205 comprised of one plot only, plot No. 550, which was held by a raiyat on a small rent of Re. 1/- or so. On the strength of the entry made in Register D and the entries in the record of rights and on the basis of the purchase made by the appellants from Sk. Latif, the appellants founded their title and asked for partition on the plea that on the 30th of November, 1945, the respondents refused a demand for partition.
2. Three sets of written statements were filed, one by defendant No. 1, the second by defendant No. 3 and the third by defendants 2, 4, 5 and 6. The case of these defendants, who are respdts, before me, was that Mahabir Mahto alone was the owner of the khewat in question, and on the 19th of August, 1926, Mahabir transferred his interest by means of a sale deed to the respondents. Subsequently, there was a private partition as a result of which one of the respondents got plot No. 1238 and one bigha out of plot No. 1237 and another respondent got the remaining area of plot No. 1237. It was stated that the other respondents had no concern with the lands. It was also alleged that Rampratap Singh, who was a thicadar under Mahabir Mahto, got certain wrong entries made during the survey proceedings. On the 21st of June, 1924, Rampratap executed a deed of ekrarnama by which he admitted the mistakes which had been made in recording the interest of the parties in the survey proceedings and also admitted that plot No. 1237, with an area of 2.77 acres, was wrongly recorded in his name though the plot belonged to and was in possession of Mahabir Mahto.
Subsequently, in 1932, there was a suit in the court of the Additional Munsif of Aurangabad in which the respondents were the plaintiffs and Rampratap Singh was a defendant. The suit related to the other plot, namely plot No. 1238, and it was held in the presence of and after contest by Rampratap, that the respondents were entitled to plot No. 1238. I may here mention that the judgment, exhibit C, shows that Rampratap was of unsound mind at the time and the suit was contested by a pleader guardian who represented Rampratap. It is worthy of note that both the deed of agreement and the decision in the title suit were before the purchase by Sk. Latif. The respondents claimed that they had been since a long time in exclusive possession by private arrangement as stated above. Put briefly, the case of the respondents was that the appellants neither had title nor possession of the property in question.
3. The learned Subordinate Judge accepted the case of the respondents and held that the appellants had neither title nor possession. He further held that with regard to plot No. 1238, the suit was barred, on the principle of res judicata, by reason of the decision given in Title Suit No. 38 of 1932. The learned District Judge, who heard the appeal, affirmed the finding of the learned Subordinate Judge on the point of title and possession, though he expressed the view that the question of possession was not very material, because if the appellants had title, the possession of one cosharer would be deemed to be the possession of all. On the issue of res judicata, the learned District Judge did not agree with the learned Subordinate Judge, but he thought that the finding in Title Suit No. 38 of 1932 could be used as a piece of evidence and on that footing he held that the appellants had failed to prove their title with regard to plot No. 1238. With regard to plot No. 1237, the learned District Judge held that the admission of Rampratap made in the deed of ekrarnama in 1924 was binding on the appellants.
4. Mr. B. C. De appearing for the appellants has contended that the finding of the courts below on the question of title is vitiated by reason of the wrong construction which they put on certain documents of title. The two documents, which can be called documents of title for the appellants, are the sale certificate in favour of Sk. Latif and the sale deed executed by Sk. Latif in favour of the appellants. The learned District Judge has pointed out that these two documents do not in express terms refer to Khewat No. 1/17. They specify the interest sold as 6 dams, 9 cowries and odd share in village Adampur Tarari Patti Kalan, Touzi B No. 1, separate account No. 36, Lakheraj No. 759. The learned District Judge thought that the appellants had failed to connect the interest sold by the aforesaid two documents with the interest recorded in the khewat. It is contended before me that the learned District Judge was wrong in this view. Mr. B.C. De has taken me through the entries in the khewat, both part II and Part III. He has also referred me to the entries made in Register D.
So far as the entries in the khewat are concerned, there seems to be some ambiguity. In khewat Part II relating to khewat No. 1/17. both Rampratap and Mahabir are recorded as owners to the extent of half each, the entire interest being 6 dams, 13 cowries and odd. The area of the lands under the khewat is shown as 5.51 acres. In Khewat Part III, however, Rampratap is recorded as the thicadar in respect of the entire area of 5.51 acres and Mahabir Mahto is shown as the landlord under whom the thicadar holds. The period of the thica is shown as 1320 to 1324 Fasli. In the khatian relating to the land, holding No. 204, which is the holding for the two plots 1237 and 1238, Rampratap is again shown as the thicadar in possession.
So far as Register D is concerned, the appellants are recorded in respect of 4 dams, 11 cowries and odd share. Learned Counsel for the appellants has explained this entry in the following way. It is pointed out that Rampratap was recorded in respect of three khewats. Khewat No. 1/10, khewat No. 1/12 and khewat No. 1/17. The total interest of Rampratap in these khewats was 7 dams and odd. Out of this share of 7 dams and odd, 3 dams and odd were purchased by one Ramautar Rai from whom defendant No. 3 purchased the said interest; therefore, defendant No. 3, who also applied for mutation, was recorded in respect of 3 dams, and odd, and the appellants, who had purchased 6 dams and odd interest from Sk. Latif, were recorded in respect of the remaining share of 4 dams and odd.
5. The learned District Judge rightly pointed out, however, that the entries made in Register D or in the khewats did not create any title in favour of the appellants. Moreover, the entries in the khewats were ambiguous and Rampratap had himself admitted in the ekrarnama of 1924 that some of the entries were not correctly made. The question of title in this case has to be considered with reference to the two documents of title which the appellants produced, namely, the sale certificate of Sk. Latif (Exhibit 6) and the sale deed executed by Sk. Latif (Exhibit 1). Assuming that these two documents relate to the interest which Rampratap had in village Adampur Tarari Patti Kalan, the difficulty in the way of the appellants arises out of the admissions made by Rampratap himself in the ekrarnama of 1924 and the decision given in Title Suit No. 38 of 1932. Rampratap had clearly admitted that he had no title to nor possession of plot 1237, and the entry in the record of rights with regard to that plot was wrong. In Title Suit No. 38 of 1932 it was decided in the presence of Rampratap that plot No. 1238 did not belong to him, after the expiry of the thica.
There has been some argument before me whether the decision in Title Suit No. 38 of 1932 operates as res judicata. The learned District Judge found that the decision did not operate as res judicata, because he held that the causes of action in the two suits were different. I do not think that the principle of res judicata depends on whether the causes of action in the two suits are identical; causes of action in the two suits may be different, but the test is whether, the matter directly and substantially in issue is the same in both suits and whether the parties are the same or the suit is between parties claiming under them and litigating under the same title. Mr. B.C. De appearing for the appellants met the plea of res judicata on a ground different from that of the learned District Judge. Mr. B. C. De contended that the principle of res judicata as embodied in Section 11, Civil Procedure Code, is that the decision in the former suit will operate as res judicata if the court which gave the decision in the former suit was competent to decide the subsequent suit. It is contended that the Munsif who decided the former suit was not competent to decide the subsequent suit; therefore there is no bar of res judicata. This was the argument of Mr. B. C. De.
Mr. B.C. De, however, conceded that if the view taken in — ‘Priyanath Chakraverty v. Kalicharan Chakravarty’. A.I.R. 1932 Cal, 162 be correct, then the decision in the former suit, so far as plot No. 1238 is concerned, will operate as res judicata in the subsequent suit; because the Munsif who decided the former suit would be competent to try the subsequent suit with regard to plot No. 1238 having regard to its value, as pointed out by the learned Subordinate Judge. The decision in — ‘Priyanath Chakravarty’s case’, appears to have been approved by a Division Bench of this court in — ‘Gokaran Prasad v. Chhotey Narayan’, 30 Pat. 377 in which Lakshmi Kant Jha C.J. quoted the decision as laying down:
“Where a decision had been given by a competent court in a previous suit regarding part of the claim in the subsequent suit, and where both the suits are between the same parties and the causes of action relating to part of the claim are the same, that much part of the claim should be excluded from the subsequent suit being barred by the principle of res judicata.”
I think that the expression “causes of action” used in this connection means that the matter in dispute is substantially the same, and the parties are the same or litigating under the same title. In the former suit, Rampratap claimed that he had title to plot No. 1238; in the present suit also the successors-in-interest of Rampratap are claiming that they have title to plot No. 1238. The decision given in 1932 was that Rampratap had no title. Assuming, however, as Mr. De contends that Section 11, Civil Procedure Code, does not in terms apply to such a case, Reuben, J. pointed out in –‘Gokaran Prasad’s case’, that nothing in section 11 of the Code of Civil Procedure has the effect of abrogating the general principles of res judicata which forbid the re-opening of matters once decided; therefore, the appellants cannot now re-agitate the same matter and claim plot No. 1238.
6. The position therefore comes to this; before Sk. Latif had purchased the interest of Rampratap in 1938, Rampratap had himself admitted that he had no interest in plot No. 1237 and it had been decided by a court of competent jurisdiction that Rampratap had no interest in plot No. 1238. I fail to see how after the aforesaid admission and decision the appellants can claim any title on the strength of their purchase from Sk. Latif. I am saying this irrespective of the entries in Register D and the khewats. The learned District Judge also has taken the same view, though with regard to the decision in Title Suit No. 38 of 1932 he thought that the decision did not operate as res judicata. He used the finding of the learned Munsif in the former suit as a piece of evidence. There is high authority in support of the view of the learned District Judge. In — ‘Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy’, AIR 1922 P C 241, it was observed:
“Their Lordships do not consider that this will be found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them: but it is the finding of a court which was dealing with facts nearer to their ken than the facts are to the Board now, and it certainly creates a paramount duty on the appellants to displace the finding, a duty which they have not been able to perform.”
7. Some comment has been made before me with regard to two points. It has been pointed out that the sale deed by which the respondents acquired their interest from Mahabir Mahto was not produced. Secondly, it is pointed out that the learned District Judge did not give proper effect to Exhibit 9, a deed of partition of the year 1904. One may feel a little surprised that the respondents did not produce their own sale deed, but the primary duty of proving their title lay on the appellants and I do not think that in the circumstances of this case, the non-production of their sale deed by the respondents can improve the position of the appellants in any way. As to the partition deed of 1904, all that it shows is that several co-sharers including Rampratap and Modnarayan partitioned their property and Rampratap and Modnarayan got four pies share out of one anna, which would be equivalent to 6 dams and odd, as recorded in Khewat No. 1/17. But the partition deed of 1904 does not and cannot supersede the admission made by Rampratap in 1924 and the decision given by a court of competent jurisdiction in 1932.
8. In my opinion, the courts below correctly found that the appellants had no title to the property which they claimed, and I do not think that the finding is vitiated by reason of any misconstruction of documents of title. On the question of possession, I think that the view of the learned Subordinate Judge was more correct, namely, that the rule that possession of one co-sharer is the possession of all co-sharers will not apply in the present case. With regard to the two plots, 1237 and 1238, there was undoubtedly an ouster of Rampratap in the sense that he was consciously, and to his knowledge, excluded. With regard to the raiyati plot No. 550 also, neither Rampratap nor the appellants were ever in possession by collection of rent, except when Rampratap sued as a ‘thicadar’.
9. I do not propose, however, to go into the finding of possession in any great detail, because I am satisfied that the courts below rightly found that the appellants had failed to prove their title to the property in respect of which they claimed partition.
10. My conclusion is that the appeal is with out merit and must be dismissed with costs.