JUDGMENT Sen, J. - This appeal and cross-objection arise out of a suit for the declaration of the Plaintiff's title to an 8 annas share in 16 plots of land and for a further declaration that these plots are not the debuttar property of the God Sree Sree Govinda Mahaprabhu Jiu. The Plaintiff also prayed that the Court should declare a kabuliyat executed in respect of one of these plots by the Defendant No. 7 in favour of the Defendants Nos. 1, 2 and 3 void. The defence taken shortly put is this. All the 16 plots are debuttar property and consequently the Plaintiff has no title thereto. Next it was alleged that the question raised by the Plaintiff was res judicata as it had been decided in two previous suits that the lands were debuttar. 2. The learned Munsif held that the question was not res judicata as the parties in one of the previous suits were not the same as the parties in the present suit and that in the other suit the land involved was different. He held on the evidence that 10 out of the 16 plots were debuttar and that 6 were not. On this finding he dismissed the Plaintiff's suit with respect to 10 plots and decreed it with respect to 6. 3. Both parties appealed. The learned District Judge has held that with respect to 15 plots, the Plaintiff's claim is barred by res judicata. He also found that apart from the bar of res judicata, the Plaintiff's claim regarding these 15 plots must fail as the evidence established that they were debuttar property. As regards the remaining plot he held on the evidence that the Plaintiff had established his claim with respect thereto and passed a decree declaring the Plaintiff's title to an 8 annas share in that plot and dismissing the suit with respect to the 15 other plots. 4. The Plaintiff has appealed and the Defendants have filed a cross-objection. 5. I shall first decide the question whether the learned Judge was right in holding that the Plaintiff's claim is barred by res judicata so far as the 15 plots are concerned. 6. 4. The Plaintiff has appealed and the Defendants have filed a cross-objection. 5. I shall first decide the question whether the learned Judge was right in holding that the Plaintiff's claim is barred by res judicata so far as the 15 plots are concerned. 6. The present suit is against 7 Defendants namely Sachindra Kumar Roy, Satyendra Kumar Roy and Sailendra Kumar Roy in their personal capacity and the same three persons as shebaits of the deity of Sree Sree Govinda Mahaprabhu Jiu. In addition to these 6 Defendants, there is the 7th Defendant Narayan Chandra Adhikari who has taken a lease with respect to one of the plots from the above mentioned Sachindra Kumar Roy, Satyendra Kumar Roy and Sailendra Kumar Roy. In the year 1929, the Plaintiff brought a suit for partition against Sachindra Kumar Roy, Satyendra Kumar Roy and Sailendra Kumar Roy. The partition suit involved many plots of land and it included the present 16 plots. The three Defendants of the partition suit opposed the Plaintiff's claim for partition on the ground that all of the properties sought to be partitioned were the debuttar properties of Sree Sree Govinda Mahaprabhu Jiu of whom they were the shebaits. They contended on this ground that the Plaintiff could not get the property partitioned. The Plaintiff on the other hand contended that the properties were not debuttar, properties but that they were merely, charged with the expenses of the deb-sheba. The learned Subordinate Judge who heard this suit held in favour of the Plaintiff. There was an appeal which was heard by the learned Additional District Judge. 42 plots were involved in the partition suit. The learned Additional District Judge held that 41 plots were absolute debuttar property belonging to Sree Sree Govinda Mahaprabhu Jiu and that consequently they could not be partitioned. 15 out of 16 plots of the present suit are included in these 41 plots. As regards one plot, namely plot No. 2949, the learned Additional District Judge came to no conclusion whatsoever. This plot is the 16th plot of the present suit. Now the question arises whether this decision of the learned Additional District Judge regarding 15 out of the 16 plots of the present suit is binding upon the parties to the present suit. This plot is the 16th plot of the present suit. Now the question arises whether this decision of the learned Additional District Judge regarding 15 out of the 16 plots of the present suit is binding upon the parties to the present suit. The argument advanced on behalf of the Plaintiff to meet the plea of res judicata briefly is as follows: It is contended that the question whether these plots were debuttar or not was not one which was directly and substantially in issue in the partition suit. It is said that this question was merely incidental and consequently the decision on this question would not operate as res judicata-in the present suit. Secondly, it was argued that the Additional District Judge did not dismiss the Plaintiff's claim in the partition suit on the ground that these plots were debuttar but on the ground of a defect of parties. Thirdly, the learned Advocate for the Plaintiff contended that the decision in the partition suit would not operate as res judicata inasmuch as the parties in that suit were not the same as the parties in the present suit. Lastly, it was pointed out that there was an appeal from the decision of the learned Additional District Judge to this Court and that it must be held that the decision of the Additional District Judge had merged in the decision of this Court. 7. There is, in my opinion, no substance in any of these points taken on behalf of the Appellant. The question whether the land sought to be partitioned was debuttar or not was not one which was merely incidental. It was a vital question and it must be taken to be a question directly and substantially in issue. The Plaintiff claimed title to he land and asked for partition on the basis of his title; the Defendants denied that title and asserted that the property was debuttar. If the property was debuttar, the suit for partition would necessarily fail. This was not an incidental issue but an issue going to the root of the whole case. The first contention of the Appellant must fail. The second contention is equally unsustainable. It is true that the learned Additional District Judge held that the Plaintiff's suit for partition was bad for defect of parties but the Plaintiff's claim was not refused on that ground. The first contention of the Appellant must fail. The second contention is equally unsustainable. It is true that the learned Additional District Judge held that the Plaintiff's suit for partition was bad for defect of parties but the Plaintiff's claim was not refused on that ground. It was refused on the ground that the property was debuttar. The learned Judge relying on the finding that the property was debuttar came to the conclusion that the suit was bad inasmuch as the God was not made a party. The reason for dismissal of the suit was the finding that the property was debuttar and the other finding that the suit was bad for defect of parties was merely a consequential one. I may mention, in this connection, that in my opinion, the learned Additional District Judge was not quite right in his view regarding the question of parties. The Plaintiff suing for partition could not possibly implead the deity as a party as that would involve a denial of the very right which he claimed. The third argument requires some consideration but in my opinion, it must also fail. It is true that in the partition suit Sachindra, Satyendra and Sailendra were impleaded in their personal capacity and not as shebaits whereas in the present suit they have been impleaded both in their personal capacity as well as in their capacity as shebaits of the deity Sree Sree Govinda Mahaprabhu Jiu but this in my opinion does not help the Plaintiff at all. In the partition suit, these three persons asserted that they were the shebaits of the deity and they ontested the suit for partition as shebaits on behalf of the deity. In the present suit they are likewise opposing the Plaintiff's claim as shebaits of the deity; they are therefore litigating under the same title in the present suit as that under which they were litigating in the partition suit. The "case therefore clearly falls within the terms of sec. 11 of the Code of Civil Procedure. The Plaintiff relied upon the case of Dwarka Nath Roy v. Ram Chandra Aich (1899) 3 C.W.N. 266 (F.B.) and Hari Kishan v. Raghubar Dayal 97 I.C. 853 (1926) for the proposition that the bar of res judicata would not operate because the parties were different. These cases can have no application in the circumstances of the present one. The Plaintiff relied upon the case of Dwarka Nath Roy v. Ram Chandra Aich (1899) 3 C.W.N. 266 (F.B.) and Hari Kishan v. Raghubar Dayal 97 I.C. 853 (1926) for the proposition that the bar of res judicata would not operate because the parties were different. These cases can have no application in the circumstances of the present one. In the case of Dwarka Nath Roy v. Ram Chandra Aich 3 C.W.N. 266 (F.B.) (1899), the facts were shortly these. In the former suit, the Plaintiff sued the Defendant for rent claiming to be his landlord. The Defendant pleaded that some one else and not the Plaintiff was his landlord. An issue was raised on this question and it was decided against the Plaintiff. Thereupon the Plaintiff brought another suit for a declaration of his title to the land against the person who had been set up as his landlord in the former suit and in that suit he made the tenant also a Defendant. It was contended that the second suit was barred by the doctrine of res judicata and this Court held that it was not so barred, because the issues in both the suits were really different. Chief Justice Maclean said: **** having regard to the nature of the relief Bought in the previous Buit and the relief Bought in the present Buit, it is impossible to say that the Plaintiff is barred in this suit from establishing his title to the land both against the alleged tenant and also against the person whose title as landlord the tenant Defendant has set up in the rent suit. 8. It is true that there is a remark made by one of the other Judges who decided this case, namely Mr. Justice Prinsep, to the effect that the Plaintiff's claim could not be treated as barred in the subsequent proceedings inasmuch as the parties were not the same, but I am of opinion that this stray remark cannot be of assistance in the decision of the matter arising in the present suit. Justice Prinsep, to the effect that the Plaintiff's claim could not be treated as barred in the subsequent proceedings inasmuch as the parties were not the same, but I am of opinion that this stray remark cannot be of assistance in the decision of the matter arising in the present suit. The ratio decidendi of the decision in the case of Dwarka Nath Roy v. Ram Chandra Aich 3 C.W.N. 266 (F.B) (1899) was that the relief sought in the previous suit was absolutely different from the relief sought in the subsequent suit, the previous suit being merely a rent suit and the subsequent suit being a suit for declaration of the Plaintiff's title to the lands. In the present case, the basis of the partition suit and the present suit is the same. The Plaintiff in the partition suit claimed partition on the basis of his title to the land and the Plaintiff in the present suit is seeking for a declaration of the same title to the land. The issues in both the suits are the same and although in the partition suit Sachindra, Satyendra and Sailendra were made parties in their personal capacity, nevertheless they contested the suit as shebaits. The addition of Narayan Chandra Adhikari obviously makes no difference inasmuch as he is holding as a tenant under the other Defendants and is not asserting any independent title in himself. The Plaintiff cannot by the addition of a party of this description escape the consequences of the decision which went against him in the partition suit. 9. The decision in Hari Kishan v. Raghubar Dayal (1926) 97 I.C. 853 is also of no assistance to the Defendant. In that suit the plea of res judicata was rejected on the ground that the parties in the prior suit were not the same as the parties in the subsequent suit and that they were not litigating under the same title. If the facts of that case are examined it will be* found that in the former suit the parties sued in their individual capacity. In the subsequent suit the parties were litigating in a representative capacity. The Plaintiffs were suing under Or. If the facts of that case are examined it will be* found that in the former suit the parties sued in their individual capacity. In the subsequent suit the parties were litigating in a representative capacity. The Plaintiffs were suing under Or. 1, r. 8 as representative of the Hindu community and the Defendants contested the suit as representative of the public of a certain "Mohalla" Further, in the subsequent suit there were several new Plaintiffs and Defendants who were not claiming under the Plaintiffs and Defendants of the previous suit but were setting up rights independently in themselves. As I have pointed out before, in the present suit the parties are really the same and litigating under the same title, the additional party Adhikari being a tenant under the Defendants Nos. 1, 2 and 3 and claiming no independent right in himself. 10. I next take up for consideration the last ground urged against the plea of res judicata namely that the decision of the learned Additional District Judge is merged in the decision of this Court. In the partition suit, the Plaintiff claimed partition of certain lands which included lands which were admittedly not debuttar. As regards these lands, the Defendants in the partition suit contended that the Plaintiff had by an agreement bound himself to keep them joint. When the Plaintiff's suit was dismissed by the Additional District Judge with respect to these lands as well as with respect to the lands which were held to be debuttar, the Plaintiff appealed to this Court. In the appeal the Plaintiff did not contest the correctness of the decision of the Additional District Judge with respect to the debuttar land but he challenged the decision only with respect to the land which Defendants alleged the Plaintiff had bound himself to keep joint. This Court, therefore, restricted their decision to the land with regard to which there was this alleged agreement and held that the agreement was binding upon the Plaintiff. This Court did not disturb the finding ' of the Additional District Judge with respect to the land which he had held to be debuttar. In these circumstances, it cannot be said that the decision of the learned Additional District Judge as regards the land which he had held to be debuttar has merged in the decision of this Court. This Court did not disturb the finding ' of the Additional District Judge with respect to the land which he had held to be debuttar. In these circumstances, it cannot be said that the decision of the learned Additional District Judge as regards the land which he had held to be debuttar has merged in the decision of this Court. I hold, therefore, that the Plaintiff's claim so far as the 15 plots are concerned is barred by res judicata. 11. I shall now deal with the other decision on which the Defendants rely for their plea of res judicata. This was a decision in Title Suit No. 963/1074 of 1927 instituted by the Defendants Nos. 1-3 as shebaits against the Plaintiff with respect to a fruit tree. The present Defendants claimed that the fruit tree belonged to the God while the present Plaintiff contended that it was personal property. It was held that the tree belonged to the God as it stood on land which was debuttar. I am of opinion that this decision cannot help the Defendants inasmuch as the plot of land on which this tree stood is different from the land of the present suit. It is true that in deciding whether this particular plot of land was debuttar or not the Court held that a large tract of land which constituted "Chandina bhitis" (shop lands) was debuttar, it is also true that 15 out of the 16 plots in the present suit are "Chandina bhitis," but even so I am not inclined to hold that the decision in that suit would bar the present claim inasmuch as it has not been established that these 15 plots of the present suit were "Chandina bhitis" at the time the previous suit was decided. 12. The learned Judge has also gone into he evidence and come to the conclusion that these 15 plots are debuttar, property. In view of my finding that the Plaintiff's claim is barred by res judicata it is not necessary for me to deal "in extenso" with the finding arrived at by the learned District Judge. All I need say is that the learned Judge has carefully surveyed the evidence and come to his conclusion. It is a pure finding of fact and there are no circumstances which would justify me in up-setting this finding in second appeal. 13. All I need say is that the learned Judge has carefully surveyed the evidence and come to his conclusion. It is a pure finding of fact and there are no circumstances which would justify me in up-setting this finding in second appeal. 13. I now take up for consideration the cross-objection by the Defendants. This relates to plot No. 2949. It is quite clear from the judgment of the learned Additional District Judge in the partition suit read with the judgment of the trial Court in that suit that the learned Additional District Judge did not arrive at any finding regarding this plot. The bar of res judicata would not therefore apply so far as this plot is concerned. The question, therefore, arises whether Plaintiff has succeeded in establishing his title to an 8 annas share in this plot. Upon the evidence the learned Judge has found that this plot is not debuttar property and he has relied to a large extent on the settlement Khatians in coming to his conclusions. He has found that the Plaintiff had an 8 annas share in this plot. His findings are pure findings of fact and there is no justification for interfering with them. In view of the findings arrived at, appeal and cross-objection must be dismissed with costs.