1. The plaintiff in O.S. No. 2395 of 1966 on the file of the City Court, Madras who succeeded before the trial Judge, but loss before the I Additional Judge, City Civil Court, Madras is the appellant hereto There are a large number of transaction and dealings between the parties and conflicting and rival claims of title. But having regard to the narrow scope within which I propose to dispose of this second appeal, it is unnecessary to refer to all of them in detail. It is not in dispute that the suit property of an extent of 2 decree and 81 cents originally belonged to one Andalammal, her husband and their four sons including one Kuppuswami Naicker the Vendor of the appellant herein. These owners sold the entire extent to one Jayarama Iyer and his brothers for a sum of Rs. 2,000/- representing the principal amount and interest which was then due under a mortgage executed by Kanakammal, the mother of Andalammal in favour of the vendees father Krisbnaswami Iyer. However, Andalammal, her husband and her children resisted delivery of possession and Jayarama Iyer and his brothers filed O.S. No. 60 of 1941 on the file of the Court of the District Munsif of Poonamallee for recovery of possession of the entire properly impleading not only Andalammal and her family but also Goviodasami Naciker and Murugappa Naicker, Venders of two portions of the property in 1939. a compromise decree was passed in that suit and it was agreed as part of the compromise that Jayarama Iyer and his brothers were entitled to the property, but if Andalammal and her family paid a sum of Rs. 2,700. with interest at 6 per cent per annum from the date of the compromise, within a year from the date of the decree, they shall be declared as the owners of the entire 2 acres and 81 cents. It is again admitted that Andalmmal and her family sold 2 acres and 66 cents out of 2 acres and 81 cents to one Basha Sahib for getting back the property and ultimately paid the amount as agreed to and got back only the balance, namely 2 acres 81 cents minus 2 acres 66 cents. It is with regard to this 15 cents which, on ground is said to be 21.77 cents that, the present controversy arises. The appellant herein is a purchaser from Kuppuswami Naicker son of Andalammal, under Ex. A-1 dated 3rd July, 1947 and under that document Kuppuswami Naieker purported to well to the appellant herein a specific extent of 55 cents within a stated boundaries, giving the measurements also. The 1st respondent herein, namely, 6th defendant, purported to claim interest in the property by purchase under two documents Bx. B-2 dated 15th December, 1957 and Ex. B-3 dated 16th November, 1957 executed by Nagammal and Andalammal respectively. The appellant instituted O.S. No. 1363 of 1958 on the file of the City Civil Court, Madras, for recovery of possession of the suit property from the first respondent herein. That suit was dismissed, The appellant preferred an appeal, A.S. No. 123 of 1964, against the said dismissal and the said appeal was disposed of by the learned Principal Judge by his judgment dated 23rd April 1965, a printed copy of which is marked as Ex. A-6 in these proceedings. In this judgment, the learned Principal Judge held that the appellant had title to the property, namely to the share of Kuppuswami Naicker in the 15 cents or 21.77 cents referred to already and that the first respondent herein had not obtained any title to the suit property. Notwithstanding this finding, the learned Principal Judge dismissed the suit of the appellant holding that his proper remedy was not to seek for recovery of possession of identical property sold under Ex. A-1 but to apply for a general partition of the properties of Kuppuswami Naicker and the members of his family and ask for the allotment of Kuppuswami Naickers shares towards the property which he purchased under Ex. A-1. This is referred to in Para. 23 of his judgment where the learned Principal Judge has summed up his findings as well as in Para 24 where he has passed orders disposing of the appeal. In Para 23, the learned Principal Judge has stated:

But as his mother and his three brothers were not parties to the said sale, they are certainly entitled to object to the appellants claim for delivery of the suit property and have already indicated that the appellants suit for possession of the suit property must fail and his only remedy is to file a compiebensive suit for tartition against Andalammal and her four sons and to claim that the suit property should as far as possible be allotted to him that if that was not possible to have 4.59 cents an any other portion of 21.77 cents which represents the actual share of Kuppuswami be allotted to him.

In Paras 24 again the learned Principal Judge has stated:

In the result the appeal fails and is dismissed but the parties will bear their own costs, here and in the Court below. The appellant will be at liberty to sue for partition in a separate suit and seek to have the suit property or us equivalent if he is so advised. He will be entitled in that suit only to the share which lawfully belonged to his vendor.

It is thereafter that the present suit for partition and separate possession of what the appellant purchased under Ex. A-1 was instituted. To this suit, the first respondent herein was impleaded as the 6th defendant, and Andalammal and others claiming along with her were impleaded as defendants 1 to 5. The learned VIII Assistant Judge, who disposed of the suit finally passed a decree to the effect that the appellant is entitled to a preliminary decree for partition of a plot of land measuring 80 east-west and 25 north-south at the South-western corner of the suit property. Against this decree, the 6th defendant, first respondent herein, preferred an appeal, namely A.S. No. 351 of 1970, The learned I Additional Judge, City Civil Court, Madras, by his judgment dated 29th February, 1972 allowed the appeal and dismissed the suit instituted by the appellant herein holding that the appellant had not made out his right, title and interest in respect of the partition claimed by him as per the sale deed Ex. A-1 and therefore he is not entitled to a decree for partition as prayed for. It is against this judgment and decree that the present second appeal has been filed by the plaintiff in the suit.

2. I am clearly of the opinion that the conclusion of the learned I Additional Judge is erroneous. I have already referred to Ex. A-6. That clearly records a finding that the appellant herein had purchased a specific extent of property under Ex. A-1 from Kuppuswami Naicker, that since Kuppuswami Naicker as one of the co-owners who were entitled to 15 or 21.77 cents, the appellant was not entitled to obtain a specific extent of property by virtue of the sale deed he got from Kuppuswami Naicker, but that his right was to file a suit for general partition and to have the suit property allotted to the share of Kuppuswami Naicker at that partition or at any rate to get whatever Kuppuswami Naicker was entitled to in the 15 cents or 21.77 cents at that partition. Now the question for consideration is, whether that decision would constitute res judicata or not. I have already referred to the fact that the only parties to the said decision were the appellant and the first respondent herein. Mr. T.R. Maui, learned counsel for the first respondent, contends that it would not constitute res judicata because the suit was finally dismissed and therefore the 1st respondent could not have preferred an appeal against that decree. In the first place, the decree in A.S. No. 123 of 1964 has not been filed into this court and therefore we do not knew whether in that decree the finding of the teamed Principal Judge holding that the appellant had title to the property, but his right was only to file a suit for partition and not to sue for recovery of possession of specific item of property was incorporated or not. Therefore, I am proceeding to deal with the question on both the cases, namely, that the said finding was incorporated in the decree and that is was not so incorporated in the decree.

3. Prima facie , having regard to the repetition of the same language is paragraphs 22 and 24 of Ex. A-6 judgment, it is reasonable to infer that that portion of the finding of the learned Principal Judge that the appellant had title and that his remedy was to file a suit for partition would have been incorporated in the decree. If it had been incorporated in the decree, there is no dispute even from Mr. T.R. Mani, that the first respondent would have had a right to prefer an appeal and since he had not preferred an appeal, that finding would constitute res Judicata as between the appellant and the respondent with reference to the title of the appellant herein.

4. Now I shall consider the question on the footing that that finding was not incorporated in the decree in A.S. No. 123 of 1964. The question for consideration then is, what exactly the nature of the controversy was on wish the finding was given. I am clearly of the opinion that the controversy was basic and fundamental to the dispute between the parties The appellant claimed title to a portion of the suit property by virtue of his purchase under Ex. A-1 sale deed from Kuppuswami Naicker. The first respondent, on the other hand, denied the title of the appellant. Consequently, the court below had to go into the question whether the appellant had title or not. If the appellant had no title to the properly either a suit for possession or a suit for partition would not lie and on that ground the suit would have been straightaway dismissed. Only if the appellant had got title to the property, the form of the prayer in the suit would be relevant. Therefore, the question, as to whether the appellant had title to any portion of the suit property or not was basis and fundamental to the suit and a finding on that question was necessary for the disposal of the suit. Hence, there can be no controversy that the finding given in the earlier proceedings that the appellant had title to a property of the suit property was a finding on a vital issue and that finding was necessary for the disposal of the suit itself. If that Ending was necessary for the disposal of the suit and yet that was net incorporated in the decree, would that constitute res judicata or not

5. Here again, the only argument of Mr. T.R. Mani is that if that finding is not incorporated in the decree, the decree being one of dismissal of the suit and the first respondent herein being the only defendant in that suit, he could not have preferred any appeal whatever and therefore that finding would not constitute res judicata . In support of this Mr. T.R. Mani draws my attention to a Bench decision of this Court in Ramaswami Reddi v. Talatrasal Marudal Reddi and others A.I.R. 1924 Mad. 469 [LQ/MadHC/1923/421] . The Bench after referring to a decision of the Privy Council in Midnapur Zamindar Company v. Naresh Narayan Roy (1921) 48 Cal. 460 (P.C.) proceeded to state.

Hare there was no necessity really to find on the question of permanent occupancy set up by the defendant for even if the Court bad assumed that ho bad to such occupancy right the result Would have keen the same; a tenancy from year to year would result and that would require a notice to quit to put an end to it.

In my opinion, the above observation does not assist the first respondent in the present case. The above observation proceeded on the basis that the finding was not really necessary for the disposal of the suit. As I have pointed out already, as far as the present case is concerned, a finding on the title of the first respondent was absolutely was necessary for the disposal of A.S. No. 123 of 1964. Hence the above decision is not of any assistance whatever to the first respondent herein.

6. As against this, there is another Bench Judgment of this Court in Muthava Shetti v. Kanthnopa Shetti 34 M.L.J. 431 at 435 in that case, Seshagiri Aiyer J., has stated:

In the fourth class, the decision upon the issue Is necessary, but unfortunately, the party against whom that decision is given could not appeal against it as the final decree is in his favour. In suck a case It seems to me that the decision on the issue would be res judicata . The proper procedure where the defendant is affected by a decision on an issue which be has not the opportunity of contesting in appeal I may be as suggested by Patbaram C.J., in Jamaitunnse v. Latifunnaise 1885 I.L.R. 7 All. 606 that is to say he can ask the court which has given an adverse decision a material issue to embody to in the decree so that he may have a right of appeal against such decision. But if ho neglects the opportunity and the decision itself is necessary for the disposal of the case, there seems to be no escape from the bar of res judicata.

I asked Mr. T.R. Mani to bring to my notice any decision which has displaced this decision of Seshagiri Aiyar, J., referred to above and Mr. Mani was not able to bring to my notice any decision to the contrary effect. Consequently, I hold that the finding against the first respondent in A.S. No. 123 of 1964 would constitute res judicata and thus prevent the first respondent from questioning the title of the appellant in the present proceedings.

7. The only other question for consideration is what is, the relief to which the appellant in entitled. As I have pointed out already, the trial Court passed a preliminary decree in his favour for partition of a plot measuring 80 east-west and 20 north-south at the south-western corner of the sun property. I am of the opinion that the learned trial Judge has erred in holding that the appellant is entitled to have this specific extent allotted to him. All that the appellant is entitled to is to have the specific extent purchased by him allotted to him if it can be accommodated within the share which Kuppuswami Naicker was entitled to along with his co-owners in the entirety of the suit property; if the same cannot be accommodated, the appellant will be entitled to whatever Kuppuswami Naicker was entitled to out of the suit property as between his co-owners.

8. Consequently the appeal is allowed and the judgment and decree of the learned I Additional Judge, City Civil Court, Madras, are set aside and the decree of the learned VIII Assistant Judge, City Civil Court, Madras, will stand modified by providing for a preliminasy decree for partition of the suit property and allotment of Kuppuswami Naickets share to the appellant herein, to the extent to which the appellant has purehand from Kuppuswamy Niicker under Ex. A-1. Since the appellant purchased the property in the south-western corner of the suit property on the ground of equity, the same will be allotted towards the share of Kuppuswami Nfticker and therefore to the appellant herein in the final decree proceedings. The parties will bear their respective costs throughout. No leave.