JUDGMENT
1. The short question that we have to answer in this appeal is whether the present suit, i. e., the suit out of which this appeal has arisen, was barred by the provisions of Order II, Rule 2, Civil Procedure Code.
2. The facts briefly are as follows. One Dirg Bijai Singh had four sons, Lal Bahadur Singh, Jagannath Singh, Ran Bahadur Singh and Jang Bahadur Singh. Lal Bahadur Singh's son is Sham Sundar Singh, defendant No. 1, and Sham Sandar Singh's son is Nagendra Bahadur Singh, defendant No. 2. The other defendants are transferees from the two defendants, Dirg Bijai Singh. was a taluqdar. He died sometime in 1887: Before his death he made a Will by which he gave the taluqa estate to his eldest son Lal Bahadur Singh. By way of provision for his other sons, he bequeathed by his Will, certain specified items of immoveable property, to them, to be enjoyed by them when they chose to live separate from their eldest brother Lal Bahadur Singh. He also directed by the Will that in the case of separation all the four sons would have a one-fourth, share in the moveable property Jang Bahadur Singh, in agreement with Lal Bahadur Singh, obtained separate possession of the property bequeathed to bun by his father, Lal Bahadur Singh had died and Ran Bahadur Singh and Jagannath Singh found it difficult to obtain possession of the property bequeathed to them. They had to institute two suits, being suits Nos. 65 and 66 of 1922 respectively against their nephew Sham Sundar Singh for recovery of the property bequeathed to them, which included a one fourth share for each of the plaintiffs, in the moveable property. The suits were decreed. The present suit is for partition and separation of 3/4th share out of certain properties which had nothing to do with the property of Dirg Bijai Singh Ajaib Singh, the maternal grand father of the four brothers Lal Bahadur Singh and others died in 1876 and was succeeded by several daughter's sons, he having no son at all. The four brother?, as they were living together with their father, enjoyed the property inherited from Ajaib Singh. As the uncles and nephew have now quarrelled the three plaintiffs, being uncles of the defendant No. 1, have claimed three-fourth share out of the property left by Ajaib Singh.
3. The question now is whether the cause of action for the two suits was one and the same and whether it was incumbent on the present, plaintiffs, at least for the plaintiffs Jagannath Singh and Ran Bahadur Singh to include the present claim in the previous litigation.
4. The learned Subordinate Judge has answered the question in the negative, and we are of opinion that he was right.
5. The earlier suite, the plaints of which will be found printed at pages 55 and 59 respectively, were strictly confined to a claim on the Will. The reliefs and indeed the entire plaints make this clear. The property which was claimed before, was to come out of the paternal estate' to be recovered on foot of a Will. Mr. Banerji's contention was that in view of the Privy Council case Venkayyamma Garu' v. Venkataramanayyavima Bahadur Garu 25 M. 678 : 7 C.W.N. 1 : 12 M.L.J. 299 : 29 I.A. 156 : 4 Bom. L.R. 657 : 8 Sar. P.C.J. 266 (P.C.) the four brothers inherited the property from Ajaib Singh with a right of survivorship among themselves, and that therefore property thus inherited from the grand-father and the property received by them from their father Dirg Bijai Singh became mixed up so as to become property of one kind. This argument thas no force. Assuming that Lal Bahadur Singh' and his brothers took the property of their grand-father with a right of survivorship among themselves, it does not follow that the maternal grandfather's property and the property of Dirg Bijai Singh became consolidated as it were, into one whole. The simple answer to this contention would be this that Dirg Bijai Singh was the sole owner of the taluqa property and the property which he bequeathed. He had no interest in his father in-law's property. Further, even if the property held by Dirg Bijai Singh be treated as joint family property, even then that property and the property of Ajaib Singh could not coalesce as it were into one common whole, because Dirg Bijai Singh had no interest in the property of Ajaib Singh.
6. In any view of the case, the contention put forward on behalf of the appellants is not sound.
7. No other point has been pressed. The appeal has no force and is dismissed with costs.