JUDGMENT
Tottenham, J.
1. We think that as regards the house in suit the lower Court was right in holding that the suit was barred by res judicata. It appears that in the former suit between the parties issues had been fixed on the question of title. In that suit the plaintiffs having failed to adduce evidence, which it was incumbent upon them to do, the suit was dismissed; and must be held to have been dismissed on the merits. The learned Counsel who appears for the appellant has cited various cases from which he argues that res judicata does not apply unless in the former suit evidence has been received and formal judgment passed upon the evidence recorded. The cases which he cites do not appear to us to apply to the case before us. In one case in this Court it appears that it refers to a former suit in which the Court had expressly abstained from coming to a decision upon the point in issue. It was therefore held that there was no adjudication and no res judicata. In a recent case I.L.R. 6 Bom. 482 the Bombay High Court has held that res judicata does not apply when the former suit has been dismissed under Section 102 of the Code for default to appear on the part of the plaintiff. Those cases do not appear to us to apply to the present case.
2. With regard to the remaining portion of the subject-matter of suit, namely, the orchard, we find that the Court below has, upon the evidence, come to the conclusion that the kobala set up by the plaintiff was not a genuine transaction, that is, the Court was not satisfied that any consideration passed, and that, on the other hand, it was satisfied that the alleged vendor had never given Up possession. The learned Counsel for the appellant says that upon the evidence the lower Appellate Court is wrong. But in second appeal it is not open to us to discuss the evidence. The appeal is dismissed with costs.
