JUDGMENT
1. This is a plaintiffs' appeal arising out of a suit for partition. We have had considerable difficulty in extracting the facts of the case. Once, however, those facts have been ascertained, the disposal of the matter before us gives rise to no difficulty. The pedigree of the family concerned is set out at p. 10 of the printed book. One Shah Muhammad had three sons, Khuda Baksh, Taj Muhammad and Karim Bakhsh. All of these three sons have a number of descendants, but we are informed that the branch of the family of Karim Bakhsh made no claim to the property in dispute. With the reason for this we are not concerned. We have only to consider the rights of the descendants of Khuda Bakhsh and Taj Muhammad inter se. The present suit for partition was brought by Sakina Bibi, a granddaughter of Taj Muhammad, against original 18 defendants. Of these, numbers 1 to. 6 and 9 to 17 are of the branch of Khuda Bakhsh. Defendants 7 and 8 were sons of Taj Muhammad. Defendant 18 Abdul Qadir not to be confused with the two Abdul Qadirs in the branch of Khuda Bakhash, was a grandson of Taj Muhammad. Defendant 8 Nur Muhammad, was subsequently made a co-plaintiff with Sakina Bibi.
2. In the year 1922 Mt. Saera Bibi and her son Muhammad Ismail, defendants 3 and 4 in the present suit brought a suit against the other heirs of Khuda Bakhsh and Sakina Bibi, granddaughter of Taj Muhammad, but not making the other heirs of Taj Muhammad parties viz.,Wali Muhammad (defendant 7) Nur Muhammad (defendant 8 and plaintiff 2 in the present suit), and Abdul Qadir (defendant 18 in the present suit), asking for partition of the four houses, subject matter of the present suit. The case for Mt Saera Bibi and Muhammad Ismail in that suit was that the four houses had never belonged to Shah Muhammad, the common ancestor, but had been originally acquired by Khuda Bakhsh. It was, however, found in fact, and the decision was upheld by both the appellate Courts, that the four houses had belonged to Shah Muhammad, and on the basis of that finding a decree was passed in favour of Saera Bibi and Muhammad Ismail for 3-annas 9-45/80 pies share. There has been no final decree in that suit up to the present date. We may note further that there was no specification of the shares of any other parties to the suit than Mt. Saera Bibi and Muhammad Ismail.
3. Subsequent to the date of the preliminary decree in that suit, Mt. Sakina Bibi present plaintiff 1 alleges that she has acquired certain further rights in these houses by gift and purchase of the shares of other persons alleged to be entitled, e.g., Mt. Sakina Bibi claims to have purchased a share of Abdul Qadir, defendant 18 in the present suit. The present suit has been brought by Sakina Bibi, Nur Muhammad, the original defendant 8 being subsequently joined with her as a plaintiff, against the heirs of Khuda Bakhsh, and including also in the array of defendants, defendant 7, Wali Muhammad, and defendant 18 Abdul Qadir (heirs of Taj Muhammad), who like Nur Muhammad were not parties to the earlier suit.
4. The lower appellate Court has held that the decision in the first suit as to whether the houses belonged to Shah Muhammad or were originally acquired toy Khuda Bakhsh does not constitute res judicata, and that it was open to the Court to determine this question of fact in the present suit, and it held that the plaintiffs had failed to establish that the houses had belonged Shah Muhammad. The only question which we have to decide in this appeal is whether the view of the lower appellate Court that this question was not res judicata is correct or not.
5. We can see no reason why the finding that the houses were the property of Shah Muhammad and the finding that the share of Mt. Saera Bibi and Muhammad Ismail was 3-annas 9-45/80 pies should not be held to be res judicata as between all the persons who were parties to that suit. This would mean that subject to any other points that may further have to be determined in the suit, Sakina Bibi and Nur Muhammad are entitled to get their shares partitioned on the basis that Mt. Saera Bibi and Muhammad Ismail are entitled to 3-annas 9-45/80 pies, and that the remainder is divisible between the other heirs of Khuda Bakhsh and Taj Muhammad.
6. There is further a matter which needs to be noted in this connexion. Defendant 7, Wali Muhammad, and defendant 18 Abdul Qadir, and defendant 8, Nur Muhammad who subsequently became a co-plaintiff, were not parties to the first suit. But it is clear that it was not to their interests to contend and they did not contend other than that Shah Muhammad was the original owner of the houses. As regards Wali Muhammad and Abdul Qadir, therefore, there was no burden on Mt. Sakina Bibi or Nur Muhammad to establish that the houses were the property of Shah Muhammad. As between them and the plaintiffs that proposition was admitted.
7. There remains to consider the question of Mt. Sakina Bibi's acquisition of certain shares by gift or purchase, e.g., her alleged purchase from Abdul Qadir, defendant 18. It has not been contended before us that any of these gifts or purchases stand on any different footing from each other. It has been contended on behalf of the defendant-respondents, particularly on behalf of Mt. Saera Bibi and Muhammad Ismail, that there can be no question of res judicata as between them and Abdul Qadir was not a party to the previous suit, and that though the matter may be res judicata as between these two defendants and Mt. Sakina Bibi in her capacity as heir of Shah Muhammad, it is not res judicata between them and Mt. Sakina Bibi in her capacity as assignee of Abdul Qadir's share. We do not think that there is any force in this contention. The matter was fought out as between Mt. Sakina Bibi and on the other side Saera Bibi and Muhammad Ismail, and moreover Mt. Sakina Bibi though in this particular respect an assignee of Abdul Qadir's share, both Sakina Bibi's and Abdul Qadir's rights are based on inheritance from Shah Muhammad. We think, therefore, that the principle of Section 11 undoubtedly applies in this respect also.
8. Accordingly reversing the decision of the lower appellate Court on the question of res judicata on the issue as to whether the property belonged to Shah Muhammad or was originally acquired by Khuda Bakhsh, we remand the case to the lower appellate Court for decision on the other points arising. Costs of this appeal and hitherto in the Courts below will abide the result.