K. ETHIRAJAN (DEAD) BY LRS.versusLAKSHMI AND ORS.

>                     K. ETHIRAJAN (DEAD) BY LRS.                                A
                                   v.
                           LAKSHMI AND ORS.

                            SEPTEMBER 26, 2003

         [SHIVARAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.]                         B
          Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act,
     1948-Sections 5(2) and 18(4)-Properties being owned by a widow-
    Appe/lant-plaintiff being widow's sister's son was allowed to occupy a
    portion of the properties-Suit for partition of property after widow's C
    death-Respondent-defendant opposing the suit claiming right to properties
     by inheritance being son ofwidow's husband's brother-Joint patta having
    been granted to the parties in proceedings under the Act recognising their
    joint ownership and possession-Judgments in previous litigation between
    the parties ho/ding appellant-plaintiff to be in possession as owner-Trial D
    .court and first appellate court, hence, granting preliminary decree of
    partition in favour of appellant-plaintiff-High Court in second appeal
    dismissing the suit-Held, the two subordinate courts were right in
    granting decree in favour of the appellant-plaintiff--High Court in second
    appeal was not justified in interfering with the concurrent findings of the
    tu·o courts below-Based on the judgments in previous litigation and the E
    joint patta, an indefeasible right to continue to occupy the property as
     owner had been created in favour of the appellant-plaintiff-Second
     Appeal-Power of High Court.

         Code ofCivil Procedure, 1908-Section 11-Res Judicata-Principle          p
    of restated-Held, principle ofres judicata is attracted even though in the
    previous suit only a part of the property was involved when in the
    subsequent suit, the whole property is the subject matter.

         The properties in question were owned by a widow 'G'. Appellant-
    plaintiff was G's sisters's son and was allowed to occupy a portion of G
    the properties since before coming into force the (Tamil Nadu) Estates
    (Abolition and Conversion into Ryotwari) Act, 1948. After the death
    of 'G', appellant-plaintiff filed a suit for partition of the property. On
    the other hand, respondent-:defendant claimed right to the properties
    by inheritance claiming relationship with 'G' as son of her husband's H
                                        33
    34                 SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.
                                                                                 (
A brother. The trial court and the first appellate court relied on the
    judgments passed in the previous litigation with regard to the same
    properties between both the parties wherein it was held by the City
    Civil Court that appellant-plaintiff having remained in continuous
    possession of the property as owner, had perfected his title by remaining
B   in adverse possession for more than the statutory period of 12 years;
    and in appeal it was held that appellant-plaintiff was in possession since
    much prior to the grant of the alleged license of permission to
    respondent-defendant. On the basis of these judgments in previous
    litigation between the parties coupled with joint patta granted by the
    Director of Settlement in proceedings under Section 18(4) of the Act
C   which recognised the joint ownership and possession of appellant-
    plaintiff and respondent-defendant, the trial court and first appellate
    court granted a preliminary decree of partition of the properties in
    favour of appellant-plaintiff.

D         In second appeal preferred by the legal representatives of
    respondent-defendant, the High Court reversed the judgments of the               f
    trial court and first appellate court and dismissed the suit of partition
    filed by appellant-plaintiff. Hence the present appeal.

E         On behalf of the appellant-plaintiff, it was contended that the
    joint patta granted in proceedings under the Act of 1948 followed by
    the judgments in the previous litigation between the parties conclusively
    establish the co-ownership of appellant-plaintiff to the properties; that
    the High Court in second appeal clearly committed an error of law and
F   jurisdiction in interfering with the concurrent finding of the two courts
    below; that the judgments in the previous Iitigat1on between the parties
    operate as res judicata against the respondent-defendant.

          On behalf of respondent-defendant, it was contended that grant
    of joint patta under the Act of 1948 is not conclusive on·the question
G   of title and it is only civil court which could take a final decision on
    the question of title and claim of co-ownership by the appellant-
    plaintiff; that the patta proceedings under the Act of 1948 are for the
    limited purpose of recognising possession of the parties in actual
    occupation consequent to abolition of 'estates' and for realising the
H   land revenue.
                          K. ETHIRA.JAN v. LAKSHMI                       35


-       Allowing the appeal, the Court

         HELD : 1.1. There was no justification for the High Court in
    second appeal to reverse the concurrent findings and judgments of the
                                                                              A


    two courts below. The two subordinate courts were right in granting
    decree in favour of the plaintiff by relying on the judgments in the B
    previous suit between the same parties and the joint patta. 144-D, E]

          1.2. The principle of res judicata under Section 11 of the Code of
    Civil Procedure is attracted where issues directly and substantially
    involved between the same parties in the previous and subsequent suit
    are the same - maybe - in the previous suit only a part of the property C
    was involved when in the subsequent suit, the whole property is the
    subject matter. The dispute of title to the suit properties between the
    parties was an issue directly and substantially involved in an earlier
    suit and on the principle of res judicata, in the present suit defendant
    or his legal representatives are estopped from questioning the claim of D
    co-ownership urged by appellant-petitioner and his legal representatives.
                                                          [44-C, D, 42-D, E]

        Hope Plantations Ltd v. Taluk Land Board, Peermade & Anr., [1999]
    5 sec 590, referred to.

          1.3. It is true that joint patta granted by Settlement Authorities
    in proceedings under the Act of 1948 cannot itself be a source of title
    to claim ownership and right of partition but as has been found by the
    trial court and the first appellate court, the plaintifrs claim for
    partition is not based on joint patta alone but judgments rendered F
    between same parties in the previous suit and appeal have also been
    relied wherein the claim of the present plaintiff to remain in possession
    of the suit property without any interference by defendant and now
    his legal representatives had been crystallized by decree of dismissal
    of suit for eviction against him. Based on the judgment in the previous
    litigation an indefeasible right to continue to occupy the suit property
                                                                              G,
    as owner had been created in favour of the present plaintiff and the
    said judgment has attained finality between the same parties and their
    legal representatives. (43-G, H, 44-A, BJ

         Tamil Nadu Etc. ''· Ramalinga Samigal Madam Et~, 11985) Suppl. H ,
    36                  SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A t SCR 63 and R. Manicka Naicker v. E. Elumalai Naicker, f1995] 4 SCC               f-
    156, referred to.

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8720 of
    1997.

B        From the Judgment and Order dated 11.7.96 of the Madras High
    Co mt in S.A. No. 649 of 1987.

         K. Ram Kumar and B. Sridhar for the Appellant.

C        S. Sivasubramaniam, R. Nedumaran and Beno Benugar with him for
    the Respondents.

         The Judgment of the Court was delivered by
                                                   "
          DHARMADHIKARI, J. : By judgment dated 11.7.1996 passed in
D   Section Appeal No. 649of1987, the High Court of Madras has reversed the
    concurrent findings recorded in the judgments of the courts below and
    dismissed the suit preferred by deceased-plaintiff, K. Ethirajan [now
    represented in this appeal by the appellants as his legal representatives] for
    partition of the suit property consisting of a house and land appurtenant to
    it described as T.S. No. 71/2 area 3.0536 grounds in village - Ayanavaram,
E   Taluk-Madras extended area, District-Madras [Tamil Nadu.]

          It is not in dispute between the parties that the suit properties were
    owned by window - Gangammal. Deceased K. Ethirajan (the original
    plaintiff) was Gangammal's sister's son and was allowed to occupy a
F   portion of the suit properties since before coming into force of The (Tamil
    Nadu) Estates (Abolition and Conversion into Ryotwari) Act, 1948
    [hereinafter referred to as an Act of 1948].

         The widow - Gangammal died in the year 1939. The deceased - M.
    Gurunathan, the original defendant (represented in this appeal by his legal
G   representatives as respondents) claimed right to the suit properties by
    inheritance claiming relationship with Gangammal as son of her husband's
    brother. Claiming title to the suit properties by inheritance, he had filed
    a suit O.S. No. 530 of 1948 (decided on 27.6.1949) against the step-
    brothers of Gangammal describing the latter as in unlawful possession of
H   the suit property. He obtained a decree of possession against the step-
           K. ETHIRAJAN v. LAKSHMI [DHARMADHIKARI, J.]                   37
brothers of Gangammal in the said suit. The deceased - original plaintiff A
K. Ethirajan, who was sister's son of Gangammal and in occupation of the
portion of the suit property was not a party to the said suit O.S. No. 530
of 1948 which was decreed on 27.6.1949.

      It is also not in dispute that in proceedings taken in accordance with B
Section 18(4) of the Act of 1948, the Director of Settlement recognised
the joint ownership and possession of deceased - plaintiff K. Ethirajan and
deceased - defendant N. Gurunathan on the suit property and granted ajoint
patta (marked as Ex. A-7 in this suit) in their favour. This order of Director,
Settlement under the provisions of Section 18(4) read with Section 5(2) C
of the Act of 1948 granting joint patta to the parties was passed on
28.8.1970. The grant of the said joint patta to the contesting parties was
upheld by all the higher authorities under the Act of 1948. The claim of
deceased - defendant for recognition of his exclusive right to the suit
properties, being nearest heir of Gangammal was rejected by all the
authorities concerned under the Act of 1948. It is on the basis of this joint D
patta (marked in the suit as Ex.-A-7) that the suit for partion filed by the
plaintiff was decreed by the trial court as well as by the First Appellate
Court.

      The trial court arid the first appellate court in granting decree of E
partition in favour of the plaintiff, apart from relying on the joint patta (Ex.
A-7), relied on the judgments passed in the previous litigation with regard
to the suit properties between deceased - plaintiff (K. Ethirajan) and the
deceased - defendant (M. Gurunathan). The deceased - defendant (M.
Gurunathan) had filed Original Suit No. 9003 of 1973 against deceased -
K. Ethirajan, seeking his eviction and delivery of possession of a portion F
of suit land of the dimension 37'x20' with a super-structure thereon used
for residence. Deceased - K. Ethirajan as defendant in the said earlier suit
resisted his eviction on grounds inter a/ia that he is in possession of the
disputed land and the super-structure, being the adopted son of Gangammal
and had been granted a joint patta in the proceedings which concluded in G
his favour under the Act of 1948.

     The earlier Original Suit No. 9003 of 1973 seeking eviction of,
deceased - plaintiff (K. Ethirajan) from suit property was dismissed by the
court of 12th Assistant Judge, City Civil Court, Madras by judgment dated H
    38                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A 06.10.1976, a copy of which has been produced and marked in the
    proceedings of the trial court in the present suit as Ex. A-22. The trial court
    in the said suit held that the deceased - K. Ethirajan cannot be held to be
    in possession of the suit property as a mere licensee of th~ deceased - M. ·
    Gurunathan. He was held to be in possession of the suit property as owner
B   since 1940 as evidenced by various documents of possession filed by him
    and the joint patta granted by the authorities under the Act of 1948. The
    trial court also held that deceased - K. Ethirajan having remained in
    continuous possession of the suit property as owner h~d perfected his title
    by remaining in adverse possession for more than the statutory period of
C   12 years.                                      "                            '

          Aggrieved by the dismissal of his suit for eviction,_ deceased - M.
    Gurunathan filed Appeal Suit No. 389 of 1977 to the Principal Judge of
    City Civil Court. The said appeal was also dismissed by judgment dated
D   24.4.1979. The judgment of the appellate court in Appeal Suit No. 389 of
     1977 decided on 24.4.1979 has been exhibited in the present suit and
                                                                                      f
    marked as Ex. A-23. The appellate court by its judgment rejected the plea
    of deceased - M. Gurunathan that deceased - K. Ethirajan was his licensee
    and held that K. Ethirajan was in possession since much prior to the grant
    of the alleged licence or permission to him. It was also held that grant of
E   joint patta under the proceedings of the Act of 1948 in favour of deceased
    - K. Ethirajan belies the case of deceased - M. Gurunathan of grant of any
    leave or licence to him for constructing a hut for his residence on the suit
    property. The appellate court did not consider it necessary to go into the
    plea of adverse possession set up by K. Ethirajan in view of the findings
F   in favour of deceased - K. Ethirajan on other issues arising from grant of
    joint patta to the contesting parties in the proceedings under the Act 1948.
    The plea based on adverse possession set up by K. Ethirajan was, however,
    negatived on the ground that if he was basing his claim of ownership and
    possession on the basis of joint patta (Ex. A-7), the question of adverse
G   possession inter se between co-owners could not arise. The litigation
    initiated by deceased - M. Gurunathan against deceased - K. Ethirajan
    challenging the latter's right and title to remain in the possession of the
    suit property came to an end with the judgment of the appellate court dated
    24.4.1979 passed in Appeal Suit No. 389 of 1977. Deceased - M. ·
H   Gurunathan who had lost his suit did not carry the matter further in appeal
            K. ETHIRAJAN v. LAKSf!MI [DHARMADHIKARI, J.]                      39

to the High Court.                                                                  A
     It is on the basis of the judgment of the trial court in previous litigation
between the parties in Original Suit No. 9003 of 1973 dated 06.10.1976
(Ex. A-22) and the appellate judgment in that suit dated 24.4.1976 (Ex.
A-23) coupled with joint patta (Ex. A-7), the trial court and the first             B
appellate court in the present suit, granted a preliminary decree of partition
of the suit properties in favour of deceased - plaintiff K. Ethirajan.

      In the Second Appeal No. 649 of 1987 preferred by the LRs of
deceased - M. Gurunathan, the High Comt has upset the concurrent
findings and judgments of the two courts below and dismissed the suit of C
partition filed by deceased K. Ethirajan.

      The High Court held that the joint patta (Ex. A-7) cannot be treated
to be a foundation to claim joint ownership to the suit properties. It held
that de hors patta (Ex. A-7), deceased - plaintiff K. Ethirajan was required
to prove that he is co-owner of the suit property in question. According D
to the High Court even on the basis of the judgments in previous litigation
between the parties the plaintiff is not entitled to seek a decree of partition
as in previous litigation he had based his case merely on adverse possession
and never set up a case of co-ownership. In the opinion of the High Court,
since the plea of co-ownership was not set up in the previous suit between E
the parties that is Original Suit No. 9003 of 1973 ), it bars the present suit
of partition filed by deceased K. Ethirajan on the basis of joint ownership
of the suit properties. The aforesaid reasoning of the High Court on two
separate issues recorded separately deserves reproduction to appreciate
the rival contentions raised by the learned counsel for the parties in this
appeal :                                                                        F

         "It is settled law that co-ownership cannot be created by a
         judgment or an order under an enactment. The plaintiffs name
          was also entered in that register only when he was found to be
          in possession of a portion of the property. A person in G .
          possession need not be a co-owner. Both the courts below failed
          to note that even in Ex. A-7 the claim of ownership was not
          decided and the parties were directed to settle their dispute
          through Civil Court. De hors Ex. A-7, there is no evidence to
          prove the claim any right under Gangammal, all his case of co-
                                                                                    H
    40                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A           ownership will have to go.



            The learned counsel for the appellant also brought to my notice
            the statement in para 9 of the judgment, in the appeal filed against
B           OS No. 9003of1973. That is Ex. A-23. In that judgment, we find
            that the present plaintiff wanted exclusive title over the entire
            3-1/2 grounds and he never admitted that the first defendant is a
            co-owner along with him. It is worthwhile to take note of Exs.
            A-22 & A-23 judgments, Ex. A-22 is the judgment in OS No.
C           9003 of 1973, which was a suit for ejectment. The plaintiff
            claimed that as against deceased defendant, he has perfected title.
            In that case the plaintiff never alleged that deceased defendant is
            a co-owner. He succeeded in his contention that he has perfected
            title. If the present contention of co-ownership was put in that
D           case, the result might have been different. According to me, the
            contention ofco-ownership which is not put forward in the earlier
            suits evidenced by Exs. A-22 and A-23, is a bar for the present
            suit. I hold that the plaintiff has miserably failed to prove co-
            ownership and his right to get partition in the plaint item. The
E           courts below have not properly undestood the legal issue involved
            in the suit and they have committed grave illegality in passing a
            preliminary decree.
                                       (Emphasis added for pointed attention)

        Learned counsel appearing for the LRs of deceased K. Ethirajan in
F
  this appeal contends that the joint patta (Ex. A-7) granted in proceedings
  under the Act of 1948 followed by the judgments (Exs. A-22 & A-23) in
  the previous litigation between the parties conclusively establish the co-
  ownership of plaintiff - K. Ethirajan to the suit properties and the High
G Court in Second Appeal clearly committed an error of law and jurisdiction
  in interfering with the concurrent finding of the two courts below. It is
  further contended that the judgments in the previous litigation between the
  parties evidenced by Exs. A-22 and A-23 operate as res judicata against
  the defendant. Reliance is placed on para 26 in the case of Hope Plantations
  Ltd. v. Taluk Land Board, Peermade & Anr., [1999] 5 SCC 590.
H
               K. ETHIRAJAN v. LAKSHMI [DHARMADHIKARI, J .]                     41
           In reply, learned counsel appearing for the LRs of deceased M. A
    Gurunathan as respondents made strenuous effort to support the judgment
    of the High Court. It was contended that grant of joint patta (Ex. A-7) under
    the Act of 1948 is not conclusive on the question of the title and it is only
    civil court which could take a final decision on the question of title and
    claim of co-ownership by the plaintiff. lt is submitted that the patta B
    proceedings under the Act of 1948 are f2r the limited purpose of
    recognising possession of the parties in actual occupation consequent to
j   the abolition of' estates' and for realising the land revenue. Strong reliance
     is placed on the decisions of this Court in the cases.of State a/Tamil Nadu
    Etc. v. Ramalinga Samigal Madam Etc., [ 1985] SuppL · l SCR 63 and R. C
    Manicka Naicker v. E. Elumalai Naicker, [1995] 4 SCC 156.

         After considering the rival contentions advanced by the counsel for'
    the parties and on perusal of the record of this case, we find that there was
    no justification for the High Court in second appeal to reverse the
    concurrent findings and judgments of the two courts below.                    D
          As held by this Court in the two decisions in cases of Ramalinga
    Samiga/ Madam and R. Manicka Naicker (supra), 0rders or decisions of
    the Settlement Officers granting patta under the :f\ct of 1948 are not
    conclusive with regard to the dispute of title between parties to the lands
    in question and civil court alone is competent to dec_ide the question of title. :E
    In the present case, the question of title to the suit properties, particularly
    on the plea of claim of ownership by deceased K. Ethirajan, directly and
    substantially arose between the same parties in earlier Original Suit No.
    9003 of 1973 and the Apeal Suit No. 389 of 1977 arising therefrom. In
    the aforesaid previous litigation deceased M.Gurunathan sought eviction F
    of deceased K. Ethirajan claiming exclusive title to the suit properties.

          Deceased K. Ethirajan as defendant to the previous suit resisted it both
    on the ground of adverse possession as well as on the alleged co-ownership
    of the parties recognised by grant of joint patta (Ex. A-7).
                                                                                     Q
         We have perused the contents of the two judgments in Civil Suit No.
    9003 of 1973 (Ex. A-22) and appellate judgment dated 24.4.1979 (Ex. A-
    32). We find that the High Court has clearly erred in observing in the
    impugned judgment that in the earlier suit, co-ownership to the suit
    property was not claimed by deceased - plaintiff (K. Ethirajan). In the H
    42                  SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A paper book containing additional documents, copies of the judgments of
    Exs. A-22 and A-23 have been placed before us. The trial court dismissed
    the suit of deceased - respondent (M. Gurunathan) on the ground that the
    case of grant of leave and licence set up by him was not poved and the
    defendant being in possession since 1940 onwards has perfected his title
B   by adverse possesion. The appellate court negatived the plea of adverse
    possession set up by Ethirajan as defendant but by relying on the joint patta
    (marked as Ex. B-6 in that Suit) came to the conclusion that the parties
    were co-owners. It was held that between co-owners, plea of adverse
    possession cannot accepted. The decree of dismissal of the suit for eviction
    of deceased - K. Ethirajan granted by the trial court was upheld by the
C   appellate court on the ground that plea of grant of licence by deceased M.
    Gurunathan was not proved and the parties were co-owners under the joint
    patta in their favour. The appellate judgment upholding the dismissal of
    the suit on the finding of co-ownership of the parties was not challenged
    by any further appeal. The said judgment has thus attained finality. The
D   learned counsel appearing for the respondents is right in his submission
    that the dispute of title to the suit properties between the parties was an
    issue directly and substantially involved in the earlier suit and on the
    principle of res judicata, in the present suit defendant - M. Gurunathan
    or his LRs are estopped from questioning the claim of co-ownership urged
E   by deceased K. Ethirajan and his LRs. The following observations at para
    26 in the case of Hope Plantations Ltd (supra) relied upon by the cou~sel
    appearing for the appellant fully support his argument based on the
    principle of res judicata and estoppel :

             "26. It is settled law that the principles of estoppel and resjudicata
F             are based on public policy and justice. Doctrine of res judicata
              is often treated as a branch of the law of estoppel though these
              two doctrines differ in some essential particulars. Rule of res
             judicata prevents the parties to a judicial detennination from
              litigating the same question over again even though the
              determination may even be demonstratedly wrong. When the
G            proceedings have attained finality, parties are bound by the
             judgment and are estopped from questioning it. They cannot
              litigate again on the same cause of action nor can they litigate any
              issue which was necessary for decision in the earlier litigation.
              These two aspects are "cause of action estoppel" and "issue
H             estoppel". These two tenns are of common law origin. Again,
           K. ETHIRAJAN v. LAKSHMI [DHARMADHIKARI, J.]                   43

        once an issue has been finally determined, parties cannot A
        subsequently in the same suit advance arguments or adduce
        further evidence directed to showing that the issue was wrongly
        determined. Their only remedy is to approach the higher forum
        if available. The determination of the issue between the parties
        gives rise to, as noted above, on issue estoppel. It operates in any B
        subsequent proceedings in the same suit in which the issue had
        been determined. It also operates in subsequent suits between the
        same parties in which the same issue arises.

       Learned counsel appearing for the respondents in his reply to the plea
based on res judicata and estoppel contended that if at all the judgments ' C
 in the earlier suits (Exs. A-22 and A-23) can be held to ·operate as res
judicata between the parties, it would be operative only in respect of a
 portion of the suit property measuring 37'x20' with super-structure thereon
 which alone was the subject matter of dispute in the earlier suit.

      The above contention advanced in reply of the learned counsel D
appearing for the respondents, cannot be accepted. In the earlier suit,
deceased - M. Gurunathan sought eviction of deceased - K. Ethirajan from
a portion of the suit property by claiming exclusive title to the whole
property involved in the present suit. The case of deceas~d - K. Ethirajan ·
in that suit was of adverse possession and alternatively .co-owners~ip on E
the basis of joint patta (Ex. A-7). Looking to the pleadings of the parties
in that suit (copies of which are placed before us in additional paper-book),
the ground urged by the respondent that in the earlier litigation, claim of
exclusive ownership set up by deceased - M. Gurunathan was restricted
only to a portion of the whole property involved in this suit, does not appear F
acceptable. On the basis of pleadings of the earlier suit, we find that the,
issue directly involved was claim of exclusive ownership of deceased - M.
Gurunathan to the whole property left behind by deceased Gangammal
although eviction was sought of the defendant from a particular portion of
the land on which he had built a hut for residence. The suit was resisted
by deceased K. Ethirajan claiming adverse possession and alternatively as G
co-owner on the basis of joint patta (Ex. A-7).

     It is true that joint patta (Ex. A-7) granted by Settlement Authoritie~
in proceedings under the Act of I 948 cannot itself be a source of title to
claim ownership and right of partition but as has been found by the trial H
    44                  SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A court and the first appellate court, the plaintiffs claim for partiticn is not
    based on joint patta (Ex. A-7) alone but judgments rendered between same
    parties [Exs. A-22 and A-23] in the previous suit and.appeal, have also been
    relied wherein the claim of the present plaintiff to remain in possession of
    the suit property without any interference by deceased M. Gurunathan and
B   now his LRs had been crystalised by decree of dismissal of suit for eviction
    agains him. Based on the judgment in the previous litigation an indefeasible
    right to continue to occupy the suit property as owner had· been created
    in favour of the present plaintiff and the said judgment has attained finality
    between the same parties and their LRs.

C        The argument that principle of res judicata cannot apply because in
    the previous suit only a part of the property was involved when in the
    subsequent suit the whole property is the subject matter cannot be accepted.
    The principle of res judicata under Section I I of the Code of Civil
    Procedure is attracted where issues directly and substantially involved
D   between the same parties in the previous and Subsequent suit are the
    same - maybe - in the previous suit only a part of the property was
    involved when in the subsequent suit, the whole property is the subject
    matter.

          In our considered opinion, therefore; the.two sub~ordinate courts were
E   right in granting decree in favour of 'th~·plai~tiff by .reiylng'Oii::th..e
    judgments in the previous suit between the same parties and the joint patta
    (Ex. A-7). The High Court in second appeal was notjustified in interfering
    with the concurrent findings of the two courts below.

F         In the result, the appeal is allowed. The impugned judgment and
    decree dated Il.7.1996 of the High Court passed in second appeal is set
                                                                                     '·
    aside and the judgments of the courts below are restored. In the
    circumstances, we, however, .leave the parties to bear their own costs in
    this appeal.

    M.P.                                                       Appeal allowed