Judgment Rai, J. 1. This is an appeal by defendant No. 1 against the judgment and order of the Additional Subordinate Judge, Third Court, Patna, who set aside the judgment and decree of the fourth Additional Munsiff Barh and remanded the case for trial of the remaining issues. 2. The facts relevant to the present appeal may shortly be stated as follows. One Jhuman Singh had two sons, Kamlapat Singh and Kuldip Singh. Mt. Lalwati Kuer, widow of Kamlapat Singh died on the 13th of January 1943, leaving behind her daughter, the present plaintiff. The other son of Jhuman Singh, namely Kuldip Singh, had a son Tilakdhari Singh who is defendant No. 2 to the present action. On the 29th of September 1931, Tilakdhari Singh defendant No. 2 sold to Basdeo Singh defendant No. 1, appellant, certain lands including the lands in dispute. On the 13th of January 1941, Mt. Lalwati Kuer executed a registered sale-deed in favour of one Gulab Singh in respect of some lands included, in the sale-deed of the present appellant, Basdeo Singh. In 1943, Gulab Singh filed Title Suit No. 134 of 1943 for a declaration of his title, and for confirmation or, in the alternative, for recovery, of possession of the lands purchased by him on the ground that Kamlapat Singh had died separate from the branch of Kuldip Singh and his properties including the properties purchased by him had been inherited by Mt. Lalwani Kuer who had every right to execute the sale-deed in his favour. In that suit he had impleaded Srimati Subhadra Kuer, the present plaintiff, also as a party-defendant along with Tilakdhari Singh and Basdeo Singh. The case of Tilakdhari Singh and the present appellant in Title Suit 134 of 1943 was that Kamlapat Singh had died joint with Tilakdhari Singh who had come in possession of the entire properties left by Jhuman Singh by survivorship and as such Gulab Singh had derived no title by his purchase from Mt. Lalwati Kuer. The suit filed by Gulab Singh was dismissed on the 13th of December 1946. It was held in that suit, in the presence of the present plaintiff, that Kamlapat Singh had died as a member of the joint family with Tilakdhari Singh. The judgment and decree of the trial Court was upheld up to this Court in S.A. No. 2603 of 1947. It was held in that suit, in the presence of the present plaintiff, that Kamlapat Singh had died as a member of the joint family with Tilakdhari Singh. The judgment and decree of the trial Court was upheld up to this Court in S.A. No. 2603 of 1947. The Title Suit No. 135 of 1943 out of which the present appeal arises was instituted by Srimati Subhadra Kuer on the 20th of August 1943 for a declaration of her title and confirmation or, in the alternative for recovery, of possession of about 3.19 acres of land which had been purchased by the present appellant along with other lands by the registered sale-deed, dated the 20th of September 1931. The case of the plaintiff was that her father, Kamlapat Singh, had separated from Tilakdhari Singh and the latter had no right to execute any sale-deed in respect of the lands in dispute which belonged to the former and as such Basdeo Singh had derived no title to it by the said sale-deed, dated the 29th of March 1931. In this Title Suit, Tilakdhari Singh also was impleaded as defendant No. 2 to the action. The suit was contested by defendant No. 1 who pleaded that the present plaintiff was the daughter of Bajrangi Singh, another brother of Kamlapat Singh. According to him, Kamlapat Singh had died in a state of joint-ness with Tilakdhari Singh who had every right to execute the sale-deed in his favour. Defendant No. 1 had further pleaded that the present suit was barred by limitation. 3. Before the trial Court various issues issue were framed including Issues No. 2 and 6 which ran as follows: "Issue No. 2: Is the suit barred by res judicata? Issue No. 6: Has the plaintiff her alleged title in the suit land?" 4. During the pendency of the present suit, Title Suit No. 134 of 1943 filed by Gulab Singh was decided on the 13th of December 1946. Defendant No. 1 of the present suit, therefore, filed an application on contending that the judgment in Title Suit No. 134 of 1943 operated as res judicata so far as the present suit was concerned. He pressed that the issue on res judicata be heard first. The trial Court acceded to his prayer and took up Issues Nos. 2 and 6 for decision. He pressed that the issue on res judicata be heard first. The trial Court acceded to his prayer and took up Issues Nos. 2 and 6 for decision. It came to the conclusion that the claim of the plaintiff was barred by res judicata in view of the judgment given in Title Suit No. 134 of 1943 in presence of the present plaintiff where it was held that Kamlapat Singh died as a member of the joint family with Tilakdhari. On this finding the suit was dismissed by the trial court. The plaintiff thereafter went in appeal. The lower appellate Court came to the conclusion that the judgment in Title Suit No. 134 of 1943 was not res judicata and, accordingly, it set aside the judgment and decree of the trial Court and remanded the case for disposal in accordance with law; hence the present appeal by defendant No. 1. 5. Mr. K.K. Sinha, the learned Advocate for the appellants contended that the present case was fully covered by the decision of the Judicial Committee in the case of MOHAMMAD SAADAT ALI KHAN V/s. MIZRA WIQUAR ALI BEG, AIR (30) 1943 P.C. 115. According to him, it was essential for the decision of Title Suit no. 134 of 1943 to determine whether Kamlapat Singh had died joint with Tilakdhari Singh or not and that there was a conflict of interest on this point between the present plaintiff and the other two defendants impleaded in that action. This being the portion, the judgment in Title Suit No. 134 of 1934 was res judicata, according to him, on the question whether Kamlapat died joint with Tilakdhari or not. Mr. K.K. Sinha, further relied upon the decision in the case of MT. MUNNI BIBI V/s. TUSLOKI NATH, AIR (13) 1931 P C 114. In that case while dealing with the question of res judicala between co-defendants their Lordships of the Judicial Committee held: "It is, in their Lordships opinion, in accord with the provisions of S. 11. Civil P.C., and they adopt it as the correct criterion, in cases where it is sought to apply the rule of res judicata as between co-defendants. In that case while dealing with the question of res judicala between co-defendants their Lordships of the Judicial Committee held: "It is, in their Lordships opinion, in accord with the provisions of S. 11. Civil P.C., and they adopt it as the correct criterion, in cases where it is sought to apply the rule of res judicata as between co-defendants. In such a case there-fore three conditions are requisite: (1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided." ***** It is true that the appellant did not enter an appearance in the suit, and it is also said that she was not a necessary party to it; but their Lordships do not regard either of these two factors as really material. The appellant was at all events a proper party to the suit and had the right to be heard if she so desired. If she chose, to stand by and let the plaintiff fight her battle, it could not affect her legal position." Mr. Sinha further contended that the Court of appeal below had erred in thinking that the facts and circumstances of the present case are similar to those of the case of CHANDU LAL V/s. BIBI KHATEMONNESSA, AIR (30) 1943 Cal 76. He directed our attention specially to the following passage in that judgment: "In the present case the decision which is set up as res judicata is the decision in the Bent Suit No. 1 of 1922. This suit was originally instituted against Safiquiddin himself by his landlord Prasanna Deo Raikat. Sanquiddin died durring the pendency of the suit, and, as far as can be gathered from the materials on record the present plaintiffs, the present defendants 1 to 3 and Safiquddins daughter by his first wife were substituted in his place as his heirs. Defendants 1 to 3 appeared and filed a written statement denying that the present plaintiffs were also the hairs of Safiquiddin. But from the evidence on the record it appears to us that Khatomanessa was designedly kept from the knowledge of this conflict. Mr. Defendants 1 to 3 appeared and filed a written statement denying that the present plaintiffs were also the hairs of Safiquiddin. But from the evidence on the record it appears to us that Khatomanessa was designedly kept from the knowledge of this conflict. Mr. Gupta contends that as the present plaintiffs were parties co-defendants in that suit and as admittedly the present defendant 1 Tanjina denied that the present plaintiffs were the heirs of Safiquiddin (1) there was a conflict of interest between the then two sets of defendants (2) it was necessary to decide this conflict in order to give the then plaintiff the relief he claimed, and (3) the question was decided in that suit, no matter on what materials that decision might have been based. Consequently, that decision, so long as it is allowed to stand, shall operate as res judicata, between the plaintiffs and defendants 1 to 3 or persons claiming under them." In our opinion, this will be a dangerous extension of the rule laid down by the Judicial Committee. The present plaintiffs were made parties as the heirs of Safiquddin. There was nothing on the record till then to give them any notice of any possible conflict. If they had no defence to put forward, and the result of that suit shows that they had none, they were not bound to put in useless appearance. If, therefore behind their back anything was pleaded assailing their interest and if the then plaintiff thereupon chose to accept the relief as modified by such pleading, it is difficult to see how the matter can be said to have been heard and decided. The absentee, co-defendants having no notice of the conflict and thus having no occasion for exercising their right of appearance and contest, the matter, so far as they are concerned, was not heard and decided by the Court. In our opinion, the decision is not res judicata and the plaintiffs are not debarred from agitating the matter in the present suit." Mr. Sinha, thereafter rightly contended that in Title Suit No. 134 of 1943, the claim put forward by Gulab Singh in respect of the properties sold to him by Mt. Lalwat; Kuer was mainly based on the allegation that Kamlapat Singh had separated from Tilakdhari Singh before his death. Sinha, thereafter rightly contended that in Title Suit No. 134 of 1943, the claim put forward by Gulab Singh in respect of the properties sold to him by Mt. Lalwat; Kuer was mainly based on the allegation that Kamlapat Singh had separated from Tilakdhari Singh before his death. The conflict of interest between Subhadra Kuer on the one (sic)and and Basdeo Singh and Tilakdhari Singh on the other was the main basis of the Title Suit No. 134 of 1943. It had to be decided to give relief to the plaintiff of that suit and it was actually decided. The decision in that suit was brought to the notice of the present plaintiff on the very next day of the judgment, i.e., on the 14th of Dec. 1946 when defendant No. 1, filed an application in the present suit to take up the issue of res judicata first. It was open to the present plaintiff to get the judgment and decree passed in Title Suit No. 134 of 1943 reversed in appeal which was in fact upheld by this Court in S. A. no. 2605: of 1947 to which also the present plaintiff was a party. In my opinion the present case is covered by decisions of the Judicial Committee in the cases of MT. MUNNI BIBI V/s. TIRLOKI NATH, AIR (18) 1931 PC 114 and MOHAMMAD SAADAT ALI KHAN V/s. MIRZA QIQUAR ALI BEG, AIR (30) 1943 PC 115 and is not hit by the above quoted observations, made in the case of CHANDU LAL V/s. BIBI KHATEMONNESSA, AIR (30) 1943 Cal 76. 6 The result is that the judgment and order of the Court of appeal below are set aside, the judgment and decree of the trial Court are restored and this appeal is allowed. There will be no order for costs of this Court and of the Court of appeal below. Jamuar, J. 7 I agree.