ISHRI PRASAD Vs. MUNNA LAL

JUDGEMENT

(1.) Three points have been argued in this appeal, namely, the respondent's suit was barred as res judicata, that it was barred under Order 2, Rule 2 Civil P.C., and that on the merits the plaintiff was not entitled to possession as that amounted to a dispossession of a co-sharer.

(2.) It appears that the plaintiff brought a suit, No. 219 of 1925, for possession of a certain plot No. 419 and for injunction with respect to two plots, namely, 415 and 421, against the present appellant who was the defendant in the case. The parties came to terms. The plaintiff's suit for possession of plot 419 was dismissed. His claim for injunction with respect to plot 415 was decreed. Nothing was said about plot 421. The plaintiff brought the suit, out of which the present appeal has arisen, to recover possession of plot 421. It has been found that at the date of the institution of suit No. 219 of 1925 the plaintiff was out of possession. The question is whether the present suit is barred on any of the first two grounds taken by the appellant.

(3.) As regards the application of Section 11, Civil P.C., it is clear that no adjudication was arrived at by the Court. The parties agreed to settle their differences, and they kept silent as regards plot 421. It is said that by Expl. 5 any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of Section 11 be deemed to have been refused, but no copy of the decree has been filed. The only document which is on the record is the compromise. The appellant therefore is not in a position to take advantage of the decree for the simple reason that it is not on the record. Again Expl. 5, apparently, has a reference to what has been adjudicated by the Court and not to the result arrived at by a compromise, in which the parties have omitted to settle a part of their dispute. In our opinion the suit is not barred by Section 11, Civil P.C.