Ranawat, J. - (1.) THIS revision application is directed against an order of the Civil Judge, Jaipur District, dated the 5th July 1951, by which Gopal Lal's application for substitution of his name in place of Sohanlal was dismissed.
(2.) IN a previous suit for partition between Phulchand on the one side and Sohanlal, Gopal Lal, Rajmal and Mst. Gulab Bai on the other a decree was given by Mahakma Khas, Jaipur, acting as the Highest Court of Appeal at that time, on the 1st of August 1942, in which, among other things, a house was held to be a separate and self-acquired property of Sohanlal, and it was also held not to be partible among the parties to that suit. After the decision in that case Sohanlal instituted a suit on the 5th of December 1944 in the court of Civil Judge, Jaipur City, for possession of a portion of that house against Phulchand, Rajmal, Mst. Gulab Bai and Mst. Sujan Bai. During the pendency of this suit Sohanlal, the plaintiff, died on the 13th of May 1947, and Gopal Lal filed an application for substitution of his name in place of Sohanlal on the 30th of May 1947 on the basis of a will executed by Sohanlal on the 2nd of June 1940. Phulchand opposed the application of Gopal Lal on two grounds among others, namely: - (1) that Gopal Lal was barred by the principle of res judicata to take his stand on the will left by Sohanlal. (2) that he was estopped by sec. 115 of the Evidence Act to take his stand on the will. The learned Civil Judge dismissed the application of Gopal Lal holding that both by the principle of res judicata and by sec. 115 of the Evidence Act. Gopal Lal could not claim to be the sole heir of Sohanlal on the basis of his will. This revision application has been filed on behalf of Gopal Lal on the ground that the learned Civil Judge acted illegally in exercise of his jurisdiction in dismissing Gopal Lal's application and the learned lower court has also failed to exercise its jurisdiction by not substituting the name of Gopal Lal in place of Sohanlal and thus by throwing out his case. The plea of res judicata has been advanced 01 the basis of a judgment of the court of Civil Judge, Jaipur City, dated the 25th May 1950, in a case filed by Gulabchand against Phulchand, Gopal Lal and Rajmal on the 24th of August 1948, for money, on the basis of a khata executed by Sohanlal who was described as an ancestor of the defendants. In that case it is said Gopal Lal omitted to plead that he was the sole heir of Sohanlal, on account of a will left by him. A decree was passed in favour of Gulabchand against all the three defendants to the extent of the property of Sohanlal in their hands. It may be pointed out that that suit had been filed on the 24th of August 1948 long after the application moved by Gopal Lal for substitution of his name in place of Sohanlal had been moved and it cannot be said that by omitting to take the plea on the basis of the will in the suit of Gulabchand, Gopal Lal made Phulchand to believe that he was not the sole heir of Sohanlal, because in this case Gopal Lal had already taken this plea and Phulchand could not have shut his eyes to it. There is, therefore, no basis for the application of the rule of estoppel under sec. 115 of the Evidence Act. When in his application for substitution of his name he had already disclosed his case he could not misguide Phulchand in any way by his conduct in the subsequent litigation and the other members of the family of Gopal Lal. The other ground of res judicata taken by Phulchand is also not available to him under the circumstances of this case. The learned lower court has based its order on the authority of a judgment of the Privy Council reported in Mst. Munni Bibi and another vs. Trilokinath and others (A. I. R. 1931 P. C. 114 ). The observations of their Lordships in that case are as follows - "if a plaintiff cannot get his right without trying and deciding a case between co-defendants, the court will try and decide that case and the co-defendants will be bound; but if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains. In such a case therefore three conditions are requisite : (1) There must be conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims, and (3) The question between the defendants must have been finally decided. " In that suit, a previous decision inter se between the defendants was held to have the effect of res judicata between the parties, because all the three conditions specified above were satisfied in that case. In the present case, though it may be said that as regards the assets of Sohanlal there was a conflict between the parties but it cannot be said that for the purpose of deciding the claim of Gulabchand it was necessary for the court to determine that conflict. Moreover, no decision whatsoever was given by the court in the previous suit regarding the conflict between the heirs of Sohanlal. Conditions No. 2 and 3 specified in the judgment of their Lordships are not satisfied in the present case. Gulab-chand's suit was for money and the legal representatives of Sohanlal were sued by him. For the purpose of that suit it was not necessary for the court to go into the rights of the legal representatives of Sohanlal inter se. Relief could be granted to the plaintiff without going into any such questions. It was therefore not necessary to decide the conflict inter se between the legal representatives of Sohanlal to give the plaintiff the relief which he claimed. The lower court was therefore not right in applying the principle of res judicata in the present case. The decision in Gulabchand's case cannot therefore debar Gopal Lal in the present case to take up a plea on the basis of a will left by Sohanlal. The order of the learned Civil Judge dismissing the application of Gopal Lal on the ground of res judicata and estoppel therefore appears to be improper. This revision application is allowed and the order of the lower court is set aside and that court is directed to consider Gopal Lal's application for substitution of his name in place of Sohanlal on its merits. The costs of this revision will abide the result of the case in the court below. . ;