1. This appeal raises a difficult question of law. The plaintiff is the appellant and the appeal is confined only to item 2 of the plaint schedule. The suit was filed for partition and separate possession of a ⅔rd share in the land. The plaintiff and the defendant are sons of two brothers Akkayya and Ramaswami. The defendant's father, Ramaswami, got himself divided from the joint family and took away his ¼th share. The plaintiff's father died thereafter and as the plaintiff was unwilling to live jointly with the defendant, he called upon him to effect a partition of the properties and deliver to him his ⅔rd share. As there were crops on the land at the time, a letter marked as Exhibit A-1 was executed by the defendant in favour of the plaintiff. O.S No. 318 of 1939 was filed by the plaintiff on the file of the District Munsif's Court, Repalle, for partition and separate possession of all the joint family properties. Item 2 of the plaint schedule in the present suit was included as item 8 in the plaint in O.S No. 318 of 1939, District Munsif's Court, Repalle. The B schedule attached to the plaint in the former suit related to the property alienated by the defendant. The defendant contended in the prior suit that the letter, dated 20th November, 1936 and marked as Exhibit A-1 in the present suit was a nominal one, that the plaintiff's father, Akkayya, gave up his interest in the joint family and was not entitled to any share in the suit properties. The trial Court having dismissed the suit, the plaintiff preferred A.S No. 128 of 1943, before the Subordinate Judge's Court, Tenali. The appellate Court held that Akkayya did not give up any share in the family properties, that the letter, dated 20th November, 1936, was not a nominal document and that the plaintiff was entitled to a share in the plaint schedule properties. As findings were not recorded on some of the issues, the suit was remanded to the trial Court. The plaintiff filed a memo, into Court that he did not press for any relief in regard to B schedule property alienated in favour of third parties and prayed for permission to file a separate suit for recovery of a share in the sale proceeds from the defendant. A preliminary decree, marked as Exhibit A-2 was passed by the District Munsif of Repalle on 23rd August, 1946. Unfortunately, the decree did not provide for partition of items 6 and 8 even though, as stated supra, the Subordinate Judge of Tenali held, on appeal that the plaintiff was entitled to a share in all the items mentioned in the plaint schedule. The plaintiff filed an application for amendment and review on 5th July, 1948, marked as Exhibit B-9 and also an application I.A No. 492 of 1948 under Order 20, rule 18 and Order 26, rule 14, marked as Exhibit B-7 that if ⅔rd share in item 8 was not given to him he might at least be awarded Rs. 2,400 as the value of that share. As the plaintiff did not pay court-fee on the review application it was rejected on 6th August, 1948. The other application I.A No. 492 of 1948 was not pressed as the review application had been rejected. The present suit O.S No. 98 of 1948 was filed before the Subordinate Judge, Tenali, for partition and recovery of a ⅔rd share in respect of item 2 (corresponding to item 8 of A schedule in the prior suit). The question that arises for consideration is, whether the plaintiff is not entitled to maintain the suit for partition, and recovery of his ⅔rd share by reason of the proceedings in the prior suit O.S No. 318 of 1939, District Munsif's Court, Repalle.
2. It might be pointed out that the defendant who claimed item 2 as the selfacquired property did not adduce any evidence on that question and so issue No. 1 was decided against the defendant, respondent herein. The facts narrated above establish beyond doubt that item 2 is joint family property in which the plaintiff is entitled to a ⅔rd share and the defendant acknowledged the plaintiff's right in the letter Exhibit A-i, dated 20th November, 1936. It is also clear that the Subordinate Judge, on appeal, upheld the plaintiff's claim in regard to item 8 and that, by mistake, the preliminary decree did not provide for partition and separate possession. I may however piont out, at this stage, that the District Munsif of Repalle allowed the amendment application filed by the plaintiff to include item 6 which was similarly left out in the preliminary decree—vide Exhibits B-11 and B-12. The Court below has also found on the facts that item 8 was omitted from the preliminary decree by mistake. The plaintiff who was examined in the case as P.W 1 deposed as to the circumstances under which the mistake crept in the preliminary decree. The defendant did not go into the witness-box and suggest any reasons why relief was not given to the plaintiff in respect of item 8. I accept the evidence of the plaintiff. I have no doubt in my mind that the omission to include item 8 in the preliminary decree was the result of a pure mistake. The amendment application in respect of item 8 ought to have been allowed, as in the case of item 6 and no court-fee, as for review, ought to have been demanded. The Subordinate Judge of Tenali held that the present suit is barred by res judicata by reason of the proceedings in O.S No. 318 of 1939, District Munsif's Court, Repalle. Mr. K. Kotayya, the learned advocate for the appellant, contended that the finding on the question of res judicata was unsustainable. He urged that, if by mistake or by consent of the parties, a partition is effected of only some of the properties, a subsequent suit for partition of the other joint properties is maintainable. He strongly relied on the decision in Jogendra Nath Rai v. Baladeo Das . 1907 I.L.R 35 Cal. 961. in support of his contention and this decision supports him. What happened in that case was the preliminary decree provided for a partition; but by mistake, of the parties to the litigation which was shared by the Commissioner, the portion in dispute in the subsequent suit was omitted from the report and therefore there was no final decree in respect of that property. Reference was made therein to the Privy Council decision in Chidambaram Chettiar v. Gauri Nachiar . 1879 L.R 6 I.A 177, for the proposition that the mere definition of the shares of the joint family does not amount to partition of the property though such determination may effect a severance of the joint family. The decision in Barness v. Boardman . 157 Mass. 479. was followed. The following passage sets out the proposition adumbrated by the Bench and is as follows:—
“We must, consequently, affirm, without hesitation, the doctrine that, although a co-owner cannot enforce a partition of a part only of the common lands leaving the rest undivided, and, although the entire property must be included in the partition, yet, if by mistake or by consent of the co-owners, acting innocently and fairly, a partition of a portion only of their estate has been made, whether by order of the Court or otherwise, there is no reason why the Court should not grant a division of the remainder at the instance of one or more of the co-owners. The conclusion is, therefore, irresistible that the effect of the decree in the partition suit was to leave untouched the joint title and possession of the parties and that the present suit for recovery of joint possession may well be maintained.”
3. A similar question came up for consideration before the Madras High Court in Kandum Venkataswamy v. Baligadu . 1915 32 I.C 179.. The head note neatly sets out the point decided and is as follows:—
“In a suit for partition between a father and his son a certain mortgage bond was left out of account as worthless. Subsequently the father brought a suit on the mortgage-bond and it was pleaded that the plaintiff and his son were not divided in respect of the properties covered by the mortgage bond and that the son was, therefore, a necessary party:
Held, per Napier, J.:— (Jogendranath Roy v. Baladeo Das) that, all the properties of the family not having been included in the partition suit, only partial partition had taken placc and that, therefore, the property covered by the mortgage bond remained joint family property.
Per Sadasiva Aiyar, J.:— (Jogendranath Roy v. Baladeo Das) that a complete partition having taken place between the father and the son, the latter was not a necessary party to the suit on the mortgage bond.”
4. At page 183, Napier, J. followed the decision of the Calcutta High Court in Jogendra Nath Rai v. Baladeo Das. Though Sadasiva Ayyar, J. did not specifically refer to this decision he held as follows:—
“It follows that after such a partition, none of the parties to it holds any of the properties tilt then held jointly) along with any other party, unless the partition agreement or the partition award or decree itself provides for such joint holding or unless there has been accident, mistake or fraud in the non-inclusion of some of the property at the division…………except on the ground of accident, mistake or fraud, therefore, there cannot be a second partition.”
5. Mayne sets out the law in his treatise On Hindu Law (nth edition) at page 567 as follows:—
“Where at a partition intended to be final some part of the property has been overlooked or fradulently concealed, but is afterwards discovered, it will be the subject of a like distribution among; the persons who were parties to the original partition, or their representatives.”
6. The decision relied on against the appellant is that reported in Sethurama Sahib… v. Chotta Raja Sahib…. . 1917 M.W.N 327.. The question that arose was as to whether a suit was maintainable for partition of a few of the properties left undivided between the plaintiff and the defendant, though a decree for partition of the plaint properties and several other properties had been passed earlier. Sadasiva Ayyar, J. held that as the preliminary partition decree had not been completed by a final decree the Court was bound on the application of the parties, to proceed with the suit to pass a final decree. He treated the suit as such an application to pass a final decree. In the course of his judgment, he referred to the decision of the Calcutta High Court in Jogendra Nath Rai v. Baladeo Das and observed as follows:—
“I, however, respectfully dissent from those decisions and hold that the cause of action for partition is oneand the same and oncc it has merged into a preliminary decree and into a final decree which effected partition by metes and bounds and awarded possession of particular share to the parties, the plaintiff cannot have a second suit for partition as if the tenancy in-common gave rise every day (even after the final decree) to a new cause of action.”
7. Napier, J. who delivered a separate judgment did not refer to the decision of the Calcutta High Court which he previously followed and which according to him in Kandum Venkataswamy v. Baligadu laid down “the true proposition” but merely expressed his concurrence to treat the suit as an application for the passing of the final decree. Sadasiva Ayyar, J. did not refer to his earlier judgment in Kandum Venkataswamy v. Baligadu wherein he expressly observed that a second suit might be maintainable where some of the properties were not included, by accident, mistake or fraud. Moreover, there is no discussion in his judgment in what respects, the Well-considered judgment in Jogendra Math Rai v. Baladeo Das is wrong or opposed to principle.
8. As stated supra, I find it difficult to reconcile the decision in Sethurama Sahib… v. Chotta Raja Sahib…. with the earlier decision of the same Bench in Kandum Venkata-swamy v. Baligadu. As the learned Judges in Sethurama Sahib… v. Chotta Raja Sahib…. treated the suit as an application for the passing of a final decree in the earlier suit, it was not really necessary for them to consider the correctness of the decision of the Calcutta High Court in Jogendra Nath Bai v. Baladeo Das. Moreover when there is a conflict between two Bench decisions of the Madras High Court, it is open to me, as stated by Salmond in his book on Jurisprudence (10th edition) at page 189—to prefer and follow the Bench decision which is in accordance with justice and legal principles. I prefer to follow the earlier judgment in Kandum Venkataswamy v. Baligadu In Subramaniam v. Lakshminarasamma, Devadoss, J. has also taken a view, differing from that of Sadasiva Ayyar in Sethurama Sahib… v. Chotta Raja Sahib…. the decision in Abhirami Ammal v. Chellummal is in accordance with the principle laid down in Jogendranath Rai v. Baladeo Das. What was held in that case was that a subsequent suit for partition was maintainable and was not barred by res judicata, if the parties agreed not to take advantage of the earlier decree for partition and had continued to be in joint possession of the properties.
9. Moreover the rule laid down by Sadasiva Ayyar, J. in Sethurama Sahib… v. Chotta Raja Sahib…. may not apply to the facts of the present case. According to the learned Judge, the cause of action for partition is one and the same and once it has merged into a preliminary decree and final decree, a second suit for partition will not lie. That was also the view taken in Basavana Gowd v. Doddalingappa . 1923 44 M.L.J 652. if the suit related to a partition of joint family property. But in Pakkiri Kami v. Manjoor Sahib . 1923 I.L.R 46 Mad. 844. it has been held that a suit for partition of common properties and not joint properties is not liable to be dismissed on the ground that the suit did not include all the common properties available for partition. This principle was followed in Moidin Kutti v. Mariamumma . 1921 41 M.L.J 457. and the learned Judges observed as follows:—
“If the property is not joint family property and the parties are not co-parceners but only Coowners or tenants-in-common the rule is not so rigid and partial partition may be allowed if there is not much inconvenience to the other sharers and if the plaintiff will otherwise be left without a remedy.”
10. So the rule applicable to the case of properties held by tenants-in-common is different from the rule applicable to partition of joint family property as between coparceners. On the facts of the present case, I find that a division in status between the plaintiff and defendant was effected as evidenced by Exhibit A-1 and so they were only in the position of tenants-in-common. If so, the principle laid down by Sadasiva Ayyar, J. does not at all apply to the facts of this case.
11. The learned advocate for the respondent relied upon the decision of the Privy Council in Nalini Kanta Lahiri v. Sarnamoyi Debya. I do not think that it governs the facts of the present case. What was held in that case was that if an error was made in the partitioning of properties, the remedy was to take appropriate proceedings in that suit to correct that error. It does not apply to a case where, by mistake, partition was not at all decreed in respect of some of the items.
12. Reference was next made by Sri G. Venkatarama Sastry, the learned advocate for the respondent, to a number of decisions bearing on the interpretation of Order 2, rule 2, Civil Procedure Code; but I do not think it is necessary to refer to those cases as no objection is raised that the present suit is barred by the terms of Order 2, rule 2, Civil Procedure Code. The decision of the Supreme Court in Sankar Sitaram v. Balakrishna Sitaram only related to a question as to how far a compromise decree operated as res judicata and it has therefore no bearing on the question to be decided in this appeal. Reliance was placed by the learned advocate for the respondent on the decisions in Kachu v. Lakshmansing and Sreekristo Biswas v. Joy Kristo Biswas, in support of the proposition that the plaintiff is bound to raise every title on which he can succeed and to obtain a decision upon every part of his case and that if it be found that any part of the case which he made has been neglected by the Court which tried the suit, he is not at liberty to bring a fresh suit in respect of such part. Those decisions are not applicable as item 2 in the present suit was included as item 8 in the prior suit. Mr. K. Kotayya, the learned advocate for the appellant relied on the decision in Gouri Sankar Poddar v. Gurupada Haidar in support of the contention that where a decree is silent as regards the claim over certain property, it does not mean that the claimant can never lay any claim in respect of that property again. In Abdeali v. Taiyab AH it was held that
“Where the Court being under a misapprehension as to the actual relief claimed by the party did not apply its judicial mind to this part of the party's claim, its omission to grant that particular relief cannot, in law, operate as res judicata.”
13. The two decisions referred to above support the conclusion that the omission to grant relief in respect of item 8 does not operate as res judicata.
14. Apart from the decisions referred to supra, I am inclined to take the view that the terms of section 11, Civil Procedure Code support the appellant's case. Under section 11, Civil Procedure Code the matter in issue will constitute res judicata only if it has been heard and finally decided by such Court. The judgment of the Subordinate Judge, on appeal, in the prior suit clearly shows that the question as to whether all the items comprised in the plaint in the prior suit constituted joint family properties liable to division or not, was decided in favour of the appellant. The judgment therefore precludes the defendant respondent herein from contending that item 2 is not jount family property or that the plaintiff is not entitled to a ⅔ share therein. The whole difficulty as pointed out by the Court below no doubt arises by reason of the fact that in the preliminary decree, no relief was granted for partition of item 8 by mistake. Is it to be held that by reason of the terms of Explanation V as no relief was expressly granted by the decree in regard to item 8, though it was claimed in the plaint, that it should be deemed to have been refused? Such a construction would be to ignore the judgment of the Subordinate Judge who held in clear and unequivocal terms that all the plaint schedule properties weree joint family properties in which the plaintiff had a share. So, in my opinion, the Court below erred in holding that the present suit is barred by res judicata.
15. The last question that remains to be considered is whether by rejection of the review application, the plaintiff is precluded from maintaining the suit. I do not think that the order of rejection on the review application operates as res judicata, as it was not rejected on the merits but only for non-payment of court-fee. Moreover, it has been held in Srish Chandra Pal Chowdhery v. Triguna Prasad Pal Chowdhry that an application for review is not a suit and a decision of a question arising in an application for review cannot operate as res judicata. The decision in Thamballa Veeramma v. Thamballa Palur Subbamma is not applicable to the facts of the present case as the question arising for decision in the suit was adjudicated in the amendment application by the High Court at the prior stage by holding that there was no discrepancy between the judgment and decree so as to warrant any amendment. In the result, the decree of the trial Court is set aside and the appeal is allowed; but, in the circumstances. I direct the parties to bear their own costs throughout.
16. E.V
17. Appeal allowed.