- (1.) THIS is a second appeal by the unsuccessful appellant plaintiff against the appellate judgment and decree passed by the Commissioner Kota dated the 30th November, 1959, by which the learned Commissioner upheld the judgment and decree of the Assistant Collector, Bundi. The appellant had filed a suit before the learned Assistant Collector Bundi for a share of inheritance in the disputed land which was dismissed as being by the principle of res-judicata because of a similar suit for partition which the appellant had earlier brought having been decided against him. THIS second appeal was heard by a Division Bench and the only point which was urged before the Division Bench by the learned counsel for the parties was in regard to the application of the principles of res-judicata. The learned Members who formed the Division Bench, however differed in their opinion and therefore this appeal has been heard by me under sec. 13 (2) of the Rajasthan Land Revenue Act 1956.
(2.) I have heard the counsel for the parties and have also carefully examined the record. As briefly stated the appellant had originally brought forward a suit for partition of the land in dispute claiming l/3rd share under his title of being the grand son of deceased Ramchandra, who is the common ancestor of the appellant and the respondents. This suit was referred to a civil court because the question of proprietory right came up in determining one of the issue, namely, whether the property under dispute was ancestral property or not. The civil court held that the property was not ancestral and accordingly the learned Assistant Collector dismissed the appellant's suit for a share in the land in dispute on the claim of its being ancestral property. Subsequently the appellant brought forward the present suit in which he has claimed that he is entitled to 2/9th of the land in dispute as a heir to Hemnath deceased, who was a son of the deceased Ramchandra. The suit was contested by the respondent on the ground that the disputed land did not belong to the deceased Hemnath but to their father Shri Ramnath and further that the appellant had filed the partition suit stated above in the Court of the Sub-Divisional Officer, which was dismissed. Therefore, the present suit was barred by the principles of res-judicata. The learned Assistant Collector after framing 5 issues on the basis of the pleading of the parties dismissed the suit on the decision of issue No. 4 holding that the principles of res-judicata applied The appeal filed by the appellant before the Commissioner Kota also failed, the learned Commissioner agreeing with the view of the lower Court. Since the only issue involved in the present, proceedings was whether the principles of res-judicata applied to the suit in regard to which the two Members who heard the second appeal in the Division Bench have differed, arguments of the two parties were confined respectively to the view held by the two differing Members. The main point for consideration is whether in accordance with the provisions of sec. 11 of the Civil Procedure Code, the principles of res-judicata applied to the present proceedings view of the suit of the appellant for partition having earlier been dismissed. My learned friend Shri Hawa has held that the title under which the parties litigated earlier was different from the title under which the present proceedings arose. Earlier it was the claim of the appellant for 1 /3rd share of the ancestral property of the common ancestor Shri Ramchandca, deceased which was dismissed by the Court holding that the property was not ancestral but had been purchased by Shri Raghunath deceased. The present plea of the appellant is for succession to 2/9th share of the land in dispute falling to the deceased Hemnath. The view of the learned Commissioner, which has been supported by my learned colleague, Shri Khemchand, was that such an alternative plea could and ought to have been raised by the appellant in the original suit for partition as even at that time Hemnath had already died. , and since he did not take such alternative plea he agreed with the Commissioner's view in accordance with the ruling of the Rajasthan High Court in RLW 1959 page 370. As my learned friend Shri Hawa has clearly pointed out the two titles are entirely different. The first claim in the partition suit which was dismissed was for 1 /3rd of the ancestral property while presently it is for 2/9th share of Shri Hemnath's portion of the land. It was clearly inexpedient for the present appellant to have put forward in the earlier suit the alternative plea of claiming 2/9th share of deceased Hemnath's land which would have been inconsistent with the original claim of l/3rd share of the common 'ancestral property. Furthermore, as stated by the learned counsel for the appellant, had he claimed as an alternative plea for 2/9th share of the deceased Hemnath's estate, it would have gone directly contrary to his other claim of l/3rd share of the ancestral property. The respondents had always been claiming that the property was not ancestral but purchased by their own father Shri Ramnath, though as may conceded the purchase was made in the name of Shri Raghunath allegedly since Shri Raghunath was elderly member of the family and both Shri Raghunath and Shri Ramnath were living together. Thus I consider that on a careful study of the ruling of the Rajasthan High Court in RLW 1959 along with the provisions of sec. 11 of the Civil Procedure Code and its Explanation IV the title under which the present suit has been filed by the appellant could not have been advanced without prejudice to himself in the previous suit filed by him for partition. A number of rulings were cited by the learned counsel for the appellant which only went to support his contention that the principles of res-judicata did not apply if the title under which the parties litigated was different in the two proceedings. It is not necessary to go into those rulings which also support my own view as stated above. The ruling of the Rajasthan High Court in RLW 1959 is the latest exposition of the principle involved and on a careful examination and study of that ruling I feel that the present suit cannot be held to be barred by the principle of res judicata. Accordingly. I agree with the view of my learned friend Shri Hawa and consider that the appeal of the appellant should be accepted and the learned trial court should be directed to proceed with this suit according to the law. In accordance with the majority decision, the appeal is accepted and the case is remanded to the trial court to proceed with the suit in accordance with the law. Since Shri Hawa has left the Board and cannot sign the majority judgment I am signing it in order to avert the need for hearing the case afresh by a Division Bench. . ;