K.L. Pandey, J.

The unsuccessful Plaintiff appeals against the dismissal of her suit for declaration of her title to, and possession of, 7.29 acres of land, rental Rs. 3-8-0, more particularly described in schedule A of the plaint.

The undisputed facts are these. One Dauram was the thekadar gaontia of village Suwatal. He died leaving behind him surviving 3 sons, Baijnath, Raghunath and Sukhiram. Prior to the year 1915, there was a partition amongst the 3 sons. The disputed bhogra land was allotted to Raghunath, who subsequently obtained a separate settlement parcha in respect of that land assessed to Rs. 2-12-0 as rent. Raghunath and after him his son Anjorsingh remained in separate possession of the land till 1942 when the latter died. The land was then recorded in the name of Mst. Sukbmat, widow of Anjorsingh, and she remained in possession thereof till her death on 18 May 1949. Thereupon, Anand-singh (Defendant), grandson of Baijnath, who was the then thekadar gaontia of the village, applied for mutation of his name as holder of the bhogra land on the ground that the last holder had died without heirs. The objection raised by the Plaintiff, who is one of the four daughters of Anjorsingh and Mst. Sukhmat, prevailed and her name was accordingly ordered to be mutated by the Additional Naib-Tehsildar. In appeal, the Sub-Divisional Officer, Sarangarh, set aside that order and directed that mutation be effected in the name of the Defendant The Plaintiffs appeal against that order was dismissed by the Board of Revenue on the short ground that no second appeal lay against an order of that nature. Sometime after the 18 May 1949, the Defendant took possession of the disputed land of which he continues to be in possession.

The Plaintiff claimed that she was the heir entitled to inherit the disputed land under the general law as well as under the Central Provinces States Land Tenure Order, 1949, which came into force in the territory of the erstwhile Sarangarh State on 15 March 1949. She averred that although Mst. Sukhmat left behind 4 daughters, she (Plaintiff) alone was entitled to inherit the land because she and her husband all along lived with her parents. She also stated that her application under Section 54 of the Madhya Pradesh Abolition of Pro prietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, was not enquired into and the land was recorded in the name of the Defendant.

The defence was that the disputed land was bhogra and that its devolution was governed by the Sarangarh State Wazib-ul-arz and not by the Central Provinces States Land Tenure Order, l949. Under the Wazib-ul-arz, the Plaintiff was not an heir entitled to inherit the bhogra land. Further, since the Defendant was in possession, his name was directed to be recorded under the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950. It was also pleaded that, on the question of title to the disputed land, the decree in Civil Suit No. 26-B of 1950 between the parties operated as res judicata.

The defence prevailed in the lower Court and the suit was accordingly dismissed. In this appeal, the Plaintiff has challenged all adverse findings.

The main question for consideration is whether the devolution of bhogra land which had been partitioned is governed by the Central Provinces States Land Tenure Order, 1949, or by the State Wazib-ul-arz or by the general law. It is true that, at the settlement of 1915, Raghunath was given the Parcha Ex. P-l but that was in respect of the disputed land which was described as bhogra. Even thereafter, the position remained unchanged (Ex. P-2). In fact, as provided by Clause 5 of the State Wazib-ul-arz, the bhogra character of the land could not be altered during the currency of the settlement.

We agree with the lower Court, and it is no longer disputed before us, that there is no provision in the Central Provinces States Land Tenure Order, 1949, which governs the devolution of bhogra land as such.

The learned Judge of the lower Court came to the conclusion that, upon the death of Mst. Sukhmat, the disputed bhogra land reverted to the State under the provisions of the Wazib-ul-arz. We find no support for that view in the provisions of the Wazib-ul-arz. Clause 5 laid down that there was no right of partition but it permitted a partition to be made by way of a family arrangement though it was also made clear that such right would not be recognised or enforced by the State or allowed to interfere in any way with the State rights. The reason for this is to be found in Clause 15 of the Wazib-ul-arz which provides:

If a thekadar is ousted from the village, then all persons holding Bhogra land must be ousted to make room for the new thekadar

In our opinion, the effect of the two provisions was that a partition could be made so as to bind the parties, though the State could not be bound by it nor could it be allowed to detract from the undoubted right reserved by the State to induct a new thekadar having title to the entire bhogra land in the village. In other respect, the Wazib-ul-arz itself recognised the position and rights of the co-sharer bhogra-holder and also imposed upon him certain duties. The thekadar and bhogra-holders bad to bear the charges of treating the Baling Chief, Officers of Government and State servants as their guests (clause 10). They could claim against each other reasonable dues payable under the rules of the Wazib-ul-arz (clause 11). They were obliged not to allow a stranger or other person to suffer from starvation and had to feed him (clause 12). Bhogra-holders were disentitled to claim any profits from the thekadar except in regard to things held in common such as fish in tanks, tamarind trees and the like (clause 13). The thekadar and bhogra-holders had to assist the Tehsildar in all matters connected with the management of the village and well-being of the ryots (clause 15). They had to pay the customary dues to the Ganda and the Baiga (clause 26). They had also to pay to the Ruling Chief Bhandar cess and Dasera Tika or salami (clauses 55 and 56). Bhet Begar was available to the thekadar but not to bhogra-holders (clause 7). All bhogra-holders had to render service to the Ruling Chief while on tour for shikar or otherwise (clause 58). The thekadar ami bhogra-holders had to repair annually the school building in the village or in the neighbouring villages (clause 61). They were bound to obey all orders issued from time to time for good government of the village (clause 63). The thekadar and the bhogra-holders could recover from each other, in civil Court or Revenue Court, customary dues for one year, the period of limitation also being one year (clause 64).

In our opinion, the contention that since the State had reserved to itself the right to induct a new thekadar having title to the entire bhogra land in the village, the co-sharer bhogra-holders could not acquire in respect of the bhogra land allotted to them in pursuance of a partition any right or title enforceable against the thekadar is incorrect. The position was, we think, similar to an arrangement made by a protected thekadar under the first proviso to Section 109 (I) (a) of the Central Provinces Land Revenue Act, 1917 (II of 1917). That proviso reads as follows:

Nothing herein contained shall prevent a protected thekadar or any member or members of his family who would be entitled to share in the theka or to be maintained out of its income from making any arrangement binding on themselves only for the joint or divided management and enjoyment of the village or part thereof.

The conferral of protected status did not destroy the pre-existing rights of other members of the family: Thakur Bhaguan Singh v. Darbarsingh, AIR 1928 P. C. 96. It could be enforced in civil Court: Narayanprasad v. Laxmanprasad, 1945 N L J 291 : A I R 1945 Nag. 229. Any arrangement made between the co-sharers and the protected thekadar was also binding: Sewakram v. Musaniya, F. A. No. 119of 1949 dated 28-8-56 (V.R. Sen and Bhutt JJ.). In Sardharam v. Premprasad, F. A, No. 56 of 1956 dated 30-11-59 ( 1960 M P L J 127.), we took the view that in this respect the position was analogous to that of a village held by a protected thekadar. We are, therefore, of opinion that in this case the partition made prior to 1915 must be regarded as binding on the parties. It was no doubt subject to the right of the State to disregard the partition and induct a new thekadar entailing consequences similar to those brought about by forfeiture of the protected status under Section 111 of the Central Provinces Land Revenue Act, 1917, including termination, of any family arrangement previously made by the protected thekadar with other members of his family. Since, in this case, the State did not exercise the aforesaid right, that aspect of the case does not require further consideration. That the Defendant and his predecessors also recognised the binding character of the partition is clear from the fact that the disputed bhogra land was allowed to pass from Raghunath to Anjorsingh and then from Anjorsingh to his widow Mst. Sukhmat.

Here the Plaintiff pleaded that there was a partition and the disputed bhogra land was allotted to Raghunath. The Defendant accepted that fact without any reservation. It is now too late for him to contend that the Plaintiff failed to plead or prove that, under the partition, a heritable right was intended to be given in the land. In our opinion, the general Hindu law of devolution applied to the land and the heirs of Anjorsingh inherited it upon the death of his widow.

The next question is whether the fact that the disputed bhogra land was settled with the thekadar under Section 54(1) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, affected to the Plaintiffs claim. Since there was some doubt about the fact itself, we admitted on record, under Order 41, Rule 27, Code of Civil Procedure Code, a copy of the relevant order and also a copy of an application filed by three daughters of Anjorsingh, including the Plaintiff, under Section 54(1) ibid which were, in our opinion, necessary to enable us to pronounce this judgment. It is manifest from the order itself that applications were made by the Defendant and his co-sharers including the daughters of Anjorsingh and that the order under Section 54(1) ibid was made in favour of the Defendant and his co-sharers. Three opportunities were given to the Defendants counsel to file documents to controvert this position, but he was unable to do so. The inference must be that the order was not exclusively in favour of the Defendant and he cannot, for that reason, resist the Plaintiffs claim. Even assuming that the Defendant used his position as the former protected thekadar to secure in his favour an order under Section 54(1) ibid the disputed land thus secured continued to be impressed with the character which it formerly had, namely joint family property held under arrangement permitted by Clause 5 of the Wazib-ul-arz. That being so, the Defendant is disentitled to claim the land as his own.

The contention that the decision on the question of Plaintiffs title given in Civil Suit No. 26-B of 1950 operates as res judicata is, in our view, untenable. The earlier suit was tried by Civil Judge, Second Class, Sarangarh, who could not try the present suit. It is well settled that unless the Court which tried the former suit was competent to try the subsequent suit in its entirety and not merely the issue raised in the subsequent suit, the rule of res judicata under section 11 of the Code of Code of Civil Procedure cannot be invoked: Gokul Mandar v. Pudmanand Singh , I L R 29 Cal. 707 (P. C) and Chandanlal v. Pushkarraj , 1952 N L J 213 : 1 L R 1952 Nag, 318 : A I R 1952 Nag, 271.

The only other point argued before us is that since Mst. Sukhmat was survived by four daughters, the Plaintiff alone, being only one of them, could not maintain the suit. We consider that even this contention is without substance. In view of the family arrangement, the four daughters of Anjorsingh became entitled to the disputed bhogra land upon the death of his widow Mst. Sukhmat. That being so, the Defendant wrongfully took possession of the land sometime after the death of the widow. It is settled view that a co-owner can file a suit for recovery of property from a person in wrongful possession and that such a suit is regarded as one on behalf of all the co-owners.

The result is that the appeal succeeds and is allowed. The decree of the lower Court is set aside. There will instead be a decree declaring that the Plaintiff and her three sisters are entitled to the disputed bhogra land. The Defendant shall also place the Plaintiff in possession of that land. The Defendant shall bear his own costs and pay those of the Plaintiff in this Court and in the Court below. Counsels fee here according to schedule.