Bhimasankaram, J.:-
(1) This is an appeal under the letters patent against the decision of a single judge of this court. The facts have been fully and clearly set out in his judgment, a report of which is to be found in 1955 andhra law times 243 (civil). The only point for determination in this appeal is whether the suit on the file of the subordinate judge's court, tenali, out of which the present appeal arises instituted by the respondent - plaintiff is barred by res judicata because of an earlier suit, o. S. No. 318 of 1939 on the file of the district munsif's court, repalle, which he himself had instituted.
(2) The controversy relates to only one item of property described as item 2 of the plaint schedule. This item was the same as item 8 in the a schedule, to the plaint in the previous suit and it comprises ac. 1 - 43 cents of wet land covered by demarcation no. 1154/5 - b of intur village. The respondent sought the relief of partition in respect of 8 items of the property described in that schedule and the first issue in o. S. No. 318 of 1939 was whether the suit properties were properties belonging to the joint family of the plaintiff and the defendant. That issue was decided against the respondent by the trial court but in appeal it was decided in the affirmative by the learned subordinate judge who remanded the suit for determination of the other issues. There was also a question raised in that suit as to whether some of the alienations made by the present appellant were not binding on the respondent. This latter issue however did not touch item 8. On the finding therefore that item 8 was joint family property, the preliminary decree should have included a direction for division of this item also. But, as a matter of fact, it did not. That decree was dated 23rd august, 1946. On 5th july, 1948 the respondent filed an unnumbered interlocutory application marked as exhibit b - 9 in the present case in which the prayer was
"that the honourable court be pleased to amend and/ or review the preliminary decree by directing division of 1 acre 43 cents wet covered by d. No. 1154/5 - b of intur village - between plaintiff and. Defendant"
.
(3) This was rejected on 6th august, 1948 on the ground that court - fee for review was not paid. The present plaint is based upon the allegation that the plaintiff, being guided by an "incorrect private office copy was under a wrong impression as well as confusion about the items and schedules filed in the repalle suit," and that it was only after some time that he discovered that the present item remained unnoticed and ignored both at the time of the preliminary decree as also at the stage of the final decree. It is stated therein that as " the plaintiff did not obtain enforcement of his claim in respect of this property," " by reason of mistake and inadvertence", he is obliged to file the present suit. Paragraph 10 of the plaint recites : -
"the plaintiff's claim for partition being a continuing and locurring one, the cause of action for the suit arose in august, 1948, when the defendant refused peaceful division, on 14th november, 1948, when the plaintiff discovered the mistakes committed regarding the items in the schedules filed in the repalle suit."
(4) The learned subordinate judge dismissed the suit. But, on appeal, our learned brother set aside the dismissal and decreed partition. He was of the view that there is a conflict as regards the applicability of the doctrine of res judicata to partition suits between two bench decisions of the madras high court - - - - - - one reported in kandum venkalaswamy v. Baligadu, (1915) 19 m. L. T. 43 : 32 i. C. 179, and the other sethurama sahib v. Chotta raja sahib, 1917 m. W. N. 327, and he chose to follow the earlier one. According to the learned judge, there is no discussion in the latter case " in what respects, the well - considered judgment in jogendra math rai v. Baladeo das, (1997) i. L. R. 35 cal. 961, is wrong or opposed to principle" a judgment from which sadasiva ayyar, j. , who was a member of the bench expressed his dissent. He also thought that "it was not really necessary for the bench in the second case to have considered the correctness of the decision of the calcutta high court. "
(5) Then he proceeded to observe as follows : -
"moreover when there is conflict between two bench decisions of the madras high court, it is open to me, as stated by salmond in his book of jurisprudence (10th edition) at page 189 - 10 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, (
1915) 19 m. L. T. 43 :
32 i. C. 179."
(6) The learned judge further expressed the opinion that the decision in the latter ruling may not apply to the facts of the present case, for the reason that there is a distinction between a suit for partition of joint family property and one for partition of common properties, and that in the present case as he was inclined to find that there was a division in status between the plaintiff and the defendant even before the institution of the previous suit, the parties were only in the position of tenants - in - common and so "the principle laid down by sadasiva ayyar, j. , does not at all apply to the facts of this case. " a third ground of his judgment was " that the terms of section 11, civil procedure code, support the appellant's case. " he expressed this view thus : -
"under section 11, civil procedure code, the matter in issue will constitute res judiacta only if it had 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 comprises in the plaint in the prior suit constituted joint family properties liable to division or not, was decided in favour of the appellant."
(7) The judgment therefore precludes the defendant - respondent herein from contending that item 2 is not joint family property or that the plaintiff is not entitled to a 2/3rd 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 were 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.
(8) He further rejected the contention of the appellant before us that the suit was barred by the dismissal of the review application, because that application was rejected not on merits but only for non - payment of court - fee and also because
"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 attempt made by the present appellant's advocate to contend that the suit was barred under order 2, rule 2, civil procedure code, was also repelled by the learned judge.
(9) We agree with the learned judge that order 2, rule 2, civil procedure code, has no application to the facts of the present case. That rule deals with the omission or intentional relinquishment by a plaintiff of any portion of his claim or omission to sue for all reliefs to which he may be entitled. In the present case, it is common ground that the item now in dispute formed part of the claim in the earlier suit and that being so, there was neither omission of any kind nor relinquishment of any portion of the claim or relief.
(10) It will be convenient to deal first with the third ground mentioned above. It is true that the defendant is precluded from contending that the disputed item is not joint family property or that the plaintiff is not entitled to a share therein. But, that only underlines the fact that there was a hearing and a final decision by the court on the former occasion as regards the divisibility of the property. Explanation v of section 11 speaks of a relief not expressly granted by the decree, while the body of the section refers to any suit or issue in which the matter in issue has been heard and finally decided in a previous suit. " decree " is defined in section 2 of the code as meaning "the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of matters in controversy in the suit and may be either preliminary or final. " that being so, where a relief is claimed by the plaint and is not covered by the decree it must be deemed to have been refused on the merits. The explanation does not speak of the judgment which the code defines as " the statement given by the judge of the grounds of a decree or order. " therefore, in applying the explanation (v) no reference need be made to the judgment and we cannot agree that the finding of the subordinate judge on appeal in the earlier suit would preclude the applicability of the explanation to the preliminary decree passed by the trial court after remand. We find it difficult also to follow how the language of section 11 supports, as the learned judge thought, the present respondent's case. The learned judge perhaps really meant that the language of section 11 is not against the respondent's contention. But even so, on the above reasoning, we cannot accept his view.
(11) We shall now deal with the first of the learned judge's grounds for disagreeing with the lower appellate court. But, before we do so, we must remark that though his judgment was delivered long after the full bench decision of this court in subbarayudu v. The state, 1955 an. W. R. 150 : 1955 a. L. T. (criminal) 53 (f. B.) , he makes no reference to it, but, on the other hand, to a passage in salmond on jurisprudence. It was ruled by the full bench that the decisions of the madras high court rendered before 5th july, 1954, are binding upon this court and that if there is a conflict between two binding bench decisions, it should be resolved by a full bench. In our opinion, it is not open to a single judge to prefer to follow "the bench decision which is in accordance with" justice and legal principles. " incidentally, it may be observed that we have not been able to discover any passage in salmond on jurisprudence at p. 189 bearing out the learned judge's reference. Nor is it correct to say that there is a conflict between the two bench decisions referred to by him. As the learned judge himself noticed, there was a divergence of view between the two judges who constituted the bench in the first case, viz. , kandum venkataswamy v. Baligadu, (1915) 32 i. C. 179 : 19 m. L. T. 43. That decision is therefore not a bench decision.
(12) The appeal with which the learned judges were dealing was disposed of eventually under section 98 of the code of civil procedure, that is, the decree of the lower court was confirmed in the absence of agreement between them to vary or reverse it. It is true that both the learned judges had in mind the case of jogendra nath rai v. Baladeo das, (1907) i. L. R. 35 cal. 961, one of them referring, without specific mention of the case, to the proposition laid down therein not without disapproval while the other recorded express agreement with the ruling. In the second of the cases, sethurama sahib v. Chotta raja sahib, 1917 m. W. N. 337 , which was also dealt with by the same judges who decided the earlier case, i. E. , sadasiva iyer and napier, jj. , while napier j. , did not mention jogendra nath rai v. Baladeo das, the other learned judge sadasiva iyer, j. , without referring to his own earlier judgment, in kandum venkataswamy v. Baligadu, referred to jogendranath rai v. Baladeo das and some other decisions to the same effect and expressed his disagreement thus : -
"i, however, respectfully dissent from those decisions and hold that the cause of action for partition is one and the same and once it has merged into a preliminary decree and into a final decree which effected partition by metes and bounds and awarded possession of particular shares 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."
(13) To this, however, he added a qualification : -
"so long as a preliminary partition decree has not been completed by a final decree, the court is bound, on the application of any of the parties, to proceed with the suit to pass a final decree and such an application is not an application in execution."
(14) But, both the learned judges however agreed that the appeal should be dismissed - sadasiva iyer, j. , primarily on the basis that the suit can be treated as an application to pass afinal decree and napier, j. , on the ground that
"the suit was for recovery of possession of the half share from which the plaintiff has been ousted after the prior decree."
' the result, therefore, was unaffected by the opinion expressed by sadasiva iyer, j. , as to res judicata. Whatever conflict there may be between the views expressed by that learned judge in these two decisions, it is clear that there is no conflict between two bench decisions. We have made these observations because if we really thought that there was such antinomy, we should have conceived it our plain duty to have referred the matter to a full bench in consonance with the directions contained in the full bench ruling of this court mentioned above.
(15) Looking at the matter from the point of view of principle, we cannot see why a suit for partition of joint family properties should be any the less subject to the rules of res judicata or of the provisions of order 2, rule 2, civil procedure code, than any other kind of suit. As was put in banakara basavana gowd v. Banakara doddalingappa, (1923) 44 m. L. J. 652, it cannot be disputed that "the suit for partition of joint family property is a comprehensive ascertainment of the assets, including immoveable property belonging to the family and the liability to be satisfied out of those assets" and " that the cause of action must be regarded as exhaustive of the whole property available for division so far as its existence is known at the date of the plaint. " the learned judges who decided the last mentioned case observed that the proposition that only one suit for partition would lie represents settled law and that in their opinion that is the only view reconcilable with the terms of section 11, explanation 4 and order 2, rule 2, civil procedure code. This is substantially the same view as expressed by sadasiva iyer, j. , in sethurama sahib v. Chotta raja sahib, 1917 m. W. N. 327, and quoted above. Even in the earlier decision wherein he referred by implication to the decision in jogendra math rai v. Baladeo das, (1907) i. L. R. 35 cal. 961 because he lays down a proposition enunciated therein in almost the same words - - - - - - he says thus : - "i am clear that a coparcener who wishes to get a partition of family properties has only a single cause of action in respect of all the joint properties and hence it is that a suit for partial partition hasbeen consistently held not to lie. "
(16) After making these observations, he refers to the provisions of order 2 and section 11 and expresses the view that they are applicable to suits for partition. It is true that the other learned judge makes express reference to jogendra math rai v. Baladeo das and quotes the following passage with approval as embodying the true proposition : -
"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."
After making this citation, the learned judge extracted also a passage from bhowani proshad shahu v. Guggrenath shahu, (1909) 13 c. W. N. 309, laying down a much broader proposition and expressed his preference for the latter. It is this : -
"the parties will not be concluded by the presumption of the final settlement as to matters which were not contemplated by them or which were not in fact included in the settlements though they existed at that time. The presumption is destroyed when the details of the settlement shows that the matter in controversy was not included."
(17) With great respect to the learned judge, it must be pointed out that the case in bhowani proshad shahu v. Juggernath shahu, has nothing to do with res judicata and the above proposition extracted from that case deals only with the finality of settled acounts, and has no bearing on the maintainability of a second suit for partition. As regards the decision in jogendra nath rai v. Baladeo das, it must be pointed, out that the very learned judge who pronounced the judgment of the bench rested his reasoning on a proposition extracted from the judgment of the supreme judicial court of massachussetts reported in barnes v. Boardman, (1892) 157 mass. 479. He affirmed
"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 owners."
(18) In the first place, it must be noted that this proposition relates to a case of co - owners, a case to which we shall refer when we deal with the second ground on which our learned brother rested his decision. In the second place, mookerjee, j. Who enunciated this doctrine on the basis of the american decision above - referred to does not specify what is meant by "mistake". If it is a case of omission by the plaintiff it may fall under order 2, rule 2, civil procedure code. If it is a mistake of the court, a failure, for instance, to decide a matter in controversy when the parties had adduced all the evidence, then, it may be a matter for review. If, on the other hand, it is a mistake merely due to a slip as in the case before us, it may be rectified under section 152. Clearly such cases cannot be saved from the consequence of the principle of res judicata or the provisions of order 2, rule 2, civil procedure code. In the instant case, we may notice that our learned brother has recorded a finding that there is a mistake. But, he has not tried to analyse the nature of the mistake, i. E. , whether it is a mistake of a party or both the parties or a mistake of the court. It seems to us clear that the mistake in the present case originated with the court because of an accidental failure on its part to refer to the item now in dispute in the decretal portion of its judgment. We can see no point in the learned judge's finding that he accepts the evidence of the respondent to prove that there was a mistake. This slip on the part of the court is not, in our opinion, a mistake which could be established by oral evidence. The proposition laid down in the american case relied on by mookherjee, j. , makes no reference to any specific rules of procedural law, such as are embodied in section 11, or order 2, rule 2, civil procedure code. It seems to proceed upon "principles of justice, equity and good conscience" which , in our opinion, we are precluded from invoking when there are statutory provisions governing the matter. We shall content ourselves with saying with reference to the case in jogendra nath rai v. Baladeo das, (1907) i. L. R. 35 cal. 961, that it takes no notice of the provisions of the civil procedure code then in force corresponding to section 11 and order 2, rule 2 of the present code of civil procedure. Our learned brother's attention was drawn to subramaniam v. Lakshminarasamma, a. I. R. 1927 mad. 313, a decision of a single judge. With reference to this case, he thought that devadoss, j. , who decided it took a view different from that of sadasiva iyer, j. , in sethurama sahib v. Chotta raja sahib, 1917 m. W. N. 327. We do not think so. Devadoss j. , held that: - "it is not left to the option of the plaintiff in a partition suit to ask for a relief in respect of certain properties and then to say that he would ask for partition of other properties at some future time. "
(19) He however added that when parties were ignorant as to the existence of some family property and divided the property that was known to them and it was afterwards discovered that some property belonging to the joint family had been left undivided, he did not see any ground for refusing a relief to one of them who asked for partition of that property. Indeed, he referred to and purported to follow the decision in banakara basavana gowd v. Banakara doddalingappa, (1923) 44 m. L. J. 652. The decision in banakara basavana gowd v. Banakara doddahngappa, itself makes the exception by saying that
"the cause of action in a partition suit of joint family property must be regarded as exhaustive of the whole property available for division so far as its existence is known at the date of the plaint."
(20) There is nothing to indicate in subramaniam v. Lakshminarasamma, that devadoss, j. , was inclined to take a view different from that of sadasiva iyer, j. Our learned brother seems to find support however for his view in the decision in abhirami ammal v. Chellammal, a. I. R. 1938 mad. 287. This case concerned it must be noted, indian christians and related to the partition of an estate of inheritance. The appellant in that case had filed a suit for partition of some properties, inherited from her father against a sister and a brother of hers who were respondents 1 and 2. She had obtained a decree awarding her a 1/3rd share in the property and directing that it should be divided between her and her brother and sister. No steps, however, were taken to execute this decree, the reason being, according to the 1st respondent, an agreement between her and her sister to enjoy the properties equally. After that agreement, they lived amicably together until 1932, when quarrels arose. The respondent filed the suit for partition and separate possession of her share in that property and the appeal before the learned judges arose out of this latter suit. It was pleaded by the appellant inter alia that respondent 1's suit was barred by res judicata. Dealing with this contention the learned judges observed at p. 288 as follows : -
"with regard to the suit of 1919, the parties had agreed not to take any advantage of the decree which had been passed therein and had continued to be in joint possession of the properties ; in other words, they treated the decree as if it was not in existence. In these circumstances, we agree that the decision cannot support the plea of res judicata."
(21) In our view, this decision rests on a subsequent agreement between the parties to continue as tenants in common and that being so, the cause of action for the second suit was the agreement, which gave them a status inter se different from their previous relationship. We do not think that this case lends countenance to the doctrine that there can be a second suit for partition merely on the ground that by mistake on the part of the court, the partition of a certain item though asked for was not decreed. Our attention has not been drawn to any other case of the madras high court taking a view different from that expressed in banakara basavana gowd v. Banakara doddalingappa, (1923) 44 m. L. J. 652. We are therefore of the opinion that in the absence of fraud a prior decree for partition like any other decree operates as res judicata. We are not concerned in this case with an omission by mistake to ask for division of a particular property, where the plaintiff was not aware of its existence at the time he filed the previous suit such as that which was dealt with by devadoss, j. , in subramaniam v. Lakshminarasamma, a. I. R. 1927 mad. 213. It would be pertinent in this context to refer to the dictum of venkata subba rao, j. , in vasudevan v. Arunachala iyer, 1926 m. W. N. 94 : 23 l. W. 415, that: -
"there could be no omission to sue within the meaning of order 2, rule 2, unless the plaintiff was at some time prior to the suit aware of or informed of the claim or of the facts which could give him a cause of action."
but, it is unnecessary however to enlarge upon this aspect of the matter.
(22) It remains to consider whether the learned judge was right as to the second ground on which he relied, viz. , that there is a difference between a suit for partition as amongst members of a joint hindu family and that for partition of the properties belonging to the former members of such a family after a division in status. He found that exhibit a - 1 in the case operated to effect a division is status as between the parties and since the appellant and the respondent were thereafter tenants - in - common, the rule as to res judicata would not apply between them. We regret our inability to see our way to accept this proposition. In our view, the rule of res judicata and the principle underlying order 2, rule 2, are equally applicable to suits between co - owners. But, it is conceivable that as between co - owners there could be different causes of action in respect of different properties owned in common. If two people buy one day under a sale - deed a piece of land and a few months later, a house, a suit for partition of the land could very well be maintained after a suit for partition of the house had been decreed. But, if the cause of action is one and entire in respect of a partiticular claim, it cannot be divided at the option of the plaintiff. The case is otherwise where the causes of action are different. The learned judge founded himself on the following observation in moidin kutti v. Mariamumma, (1921) 41 m. L. J. 457, a case which related to muhammadan co - heirs the suit out of which the appeal arose was by one of the co - sharers for partition and recovery of his share. One of the defences was that the suit was not maintainable being one for partial partition. The learned judges in repelling the contention made the following observations : -
"if this were a case of hindu law the objection would certainly hold good - vide sundara iyer v. Krishnamoorthi iyer, (
1916) 31 m. L. J. 317 and manjayya v. Shunmuga, (1913) i. L. R. 38 mad. 684 : 26 m. L. J. 576. But the objection can be raised only by the members of the family and not by strangers. See ibramsa rowthan v. Thiruvmkataswami naick, (1910) i. L. R. 34 mad.
269 (274, 275) :
20 m. L. J. 743, where it is said that a stranger cannot enforce partition against the will of the other members without suing for a general partition. It follows that the objection may be waived by them and this can be done at any stage."
(23) These remarks are followed by this passage : -
"again even as a rule of hindu law, it is a rigid rule only so far as joint family property concerned being a substantial rule of hindu law - see bakewell, j. , in manjayya v. Shanmuga. Ifthe property is not joint family property and the parties are no t coparceners but only co - owners 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 - see radhakanta shah v. Bipro das roy, (1904) 1 c. L. J. 40 and syed habibur rasul abdul gaiz v. Ashitu mohan ghosh, (
1908) 12 c. W. N. 640 and uma sundari debi v. Benode lal pakrishi, (2907) i. L. R. 34 cal. 1026 and a. S. Nos. 133 and 184 of 1907. It is then merely a rule of processual law. In the case of muhammadans, the co - heirs, are only tenants in common, and there is no joint family in the hindu law sense of the term. The rule can at best apply to the muhammadans only in the manner it applies to tenants - in - common among hindus."
(24) It is clear that in this case the learned judges were not dealing with the maintainability of a subsequent suit but with that of the first suit. All that they said was that the suit could not be dismissed on the ground that it did not include all the properties belonging to the parties divisible among them. The learned judges only meant to say that a suit instituted by a co - owner cannot be successfully resisted on the ground that it does not comprehend the whole of the property divisible between the co - owners, for as pointed out in banakara basavana gowd v. Doddalingappa, (1923) 44 m. L. J. 652: -
"there would be no question of the necessity for an exhaustive settlement of assets and liabilities in such a suit, as in the case of a suit for partition among hindu co - parceners."
they could not have meant that where the cause of action is one and entire, successive suits for partition could be brought. We fail to see how the proposition is exigible from this decision that a second suit for partition would lie without reference to the provisions of section 11 or order 2, rule 2, civil procedure code.
(25) We, therefore, find ourselves in disagreement with all the grounds on which the leared judge relied to reverse the decision of the trial court. In our opinion, the present suit is manifestly barred by res judicata and should be dismissed. We should , however, have adopted the course which sadasiva iyer, j. , in sethurama sahib v. Chotta raja sahib, 1917 m. W. N. 327, was prepared to adopt, viz. , to treat the present suit as an application for a final decree, but for the fact that it is laid in the sub - court of tenali while the previous suit was before the district munsif of repalle. It appears to us that the matter could have been and perhaps could still be rectified under section 152 of the code of civil procedure as a clerical mistake due to an accidental omission. There can be little doubt that the court intended to award the present respondent a decree for partition of the property now in dispute. But, presumably by oversight neither the decretal portion of the judgment nor the preliminary decree based thereon mentioned it. Such a mistake, in our opinion, could be set right without an application for review. As the prior application for amendment or review was not disposed of on merits, a fresh application could well be maintained - vide langat singh v. Janki koer, (1911) i. L. R. 39 cal. 265.
(26) In the result, the appeal is allowed and the suit dismissed. The order as to costs in the lower court will remain but there will be no order as to costs in this court. Appeal allowed.