JUDGMENT K. Sadasivan, J. 1. Defendants 2 and 3 in O. S.220/63 on the file of the Munsiff Court, Irinjalakuda are the appellants. The suit against them was for declaration that the plaintiffs and others residing in the plaint schedule property are entitled to draw water from the well situated in the defendants' property Sy. No. 877/5, the well being situated at the close extremity of the property, and an injunction to restrain the defendants from interfering with that right. The plaint schedule property along with other properties belonged to one Antony, who subjected the properties to partition and in the partition 'A' schedule was allotted to Lonappan and his brothers Vareeth and Chacko, 'B' Schedule to Vareed another son of Antony from whom the properties were purchased by the defendants. The C schedule was allotted to Ouseph and Luiz, the other two sons of Antony. Each of the three schedules - A, B and C - stated that a right to the extent of l/3rd in the well was also allotted to each of the three sharers. The suit was resisted by the defendants on the ground that the well mentioned in the partition deed was filled up and that the present well seen in the defendants' property was dug by Vareed, the predecessor-in-interest of the defendants. Vareed the brother of the plaintiffs also had purchased the shares of the other heirs of deceased Lonappan in the properties in A schedule (present plaint schedule) and filed a suit O. S.570/56 to establish the l/3rd right over the well in the defendants property. That suit was filed by him as owner of the present plaint schedule property for and on behalf of the resident in the plaint schedule properties including the plaintiffs, with their consent and knowledge. Though that suit was decreed by the trial court, the same was dismissed in appeal and against the appellate decision S.A. 140/59 was preferred to this court and here the parties compromised. Under the compromise Vareed was paid Rs. 150/- to dig a well in the plaint schedule property and accordingly a well was dug by Vareed, which is being used by the plaintiffs. The present suit, in the light of the above facts, is barred by res judicata. Under the compromise Vareed was paid Rs. 150/- to dig a well in the plaint schedule property and accordingly a well was dug by Vareed, which is being used by the plaintiffs. The present suit, in the light of the above facts, is barred by res judicata. This contention was upheld by the trial court and the suit was dismissed; but in appeal, the lower appellate court set aside that decision and remanded the matter to the trial court for fresh disposal in the light of the observations made in the appellate judgment. 2. The sole question for consideration is whether the suit is barred by res judicata by reason of the decision in the prior suit O. S.570/56. That suit was filed by Vareed, a brother of the plaintiffs for a declaration of the right over the well and also for a perpetual injunction. The fact is not denied that the present plaintiffs were not parties to that suit. The plaintiffs' father (Lonappan) to whom' the A schedule property was allotted in Ex-Pi partition had 5 children - two sons and 3 daughters. On Lonappan's death the property devolved on his children of whom the plaintiffs are the unmarried daughters. The fact that they are possessed of a definite interest in the well cannot be denied. 1/3rd right in the well was specifically mentioned in A schedule of Ex. P1. O. S.570/56 was, as already I indicated, filed by the plaintiffs' brother Vareed. The plaintiffs and Vareed and the other children of Lonappan, all had distinct interest in the properties obtained by Lonappan in partition. As the plaintiffs were not parties to O. S.570/56, that decision cannot bind them. Their right in respect of the well was not a matter in issue in that suit. There is no basis for the defendants' claim that the previous suit was one brought for and on behalf of the present plaintiffs as well. It was not a representative suit at all. Ex.D1 is the copy of the plaint in that suit. A reading of Ex.D1 would show that Vareed the plaintiff in that suit, had brought the suit solely in his own right, and it was alleged in the plaint that 1/3rd right in the well was exclusively his. xxx xxx xxx The prayer for injunction was worded in these terms - xxx xxx xxx 3. A reading of Ex.D1 would show that Vareed the plaintiff in that suit, had brought the suit solely in his own right, and it was alleged in the plaint that 1/3rd right in the well was exclusively his. xxx xxx xxx The prayer for injunction was worded in these terms - xxx xxx xxx 3. There was no whisper any where in that plaint as to a right in the well possessed by the present plaintiffs or that they were prevented from using the well and it was on their behalf also that the suit was filed. The case of the defendants now I is that the present plaintiffs complained to Vareed about the obstruction caused to I them in the matter of drawing water from the well and it was to vindicate their rights that the said suit was brought by Vareed. This case does not get any support from Ex.D1. Explanation VI to S.11 of the C. P. C. cannot apply in such j circumstances. The explanation reads: - "Explanation VI - Where persons litigate bona fide in respect of a public right or of a J private right claimed in common for themselves and others, all persons interested is such right shall, for the purposes of this section, be deemed to claim under the persons so litigating." 4. Explanation VI can apply only to suits in respect of public or private right clamed by the plaintiffs in common with others and all persons interested in such right shall be deemed to claim under the persons so litigating. The principle is that the persons represented by the party shall be deemed to claim under the plaintiff's In the present instance the previous suit, as is clear from the extract made above, was not filed by Vareed in any representative capacity. The rule is well settled that where the previous suit was neither in form nor in substance filed in a representative capacity the subsequent suit brought by persons claiming the right cannot be held to be barred by Explanation VI of S.11 (vide AIR 1949 All. 761). In Sm. Sushama Roy v. Atul Krishna Roy (AI R 1955 Cal. 624), a suit filed for framing a scheme of management of a temple was compromised; but the deity did not join in the petition of compromise and there was no mention of it in the decree of the court. 761). In Sm. Sushama Roy v. Atul Krishna Roy (AI R 1955 Cal. 624), a suit filed for framing a scheme of management of a temple was compromised; but the deity did not join in the petition of compromise and there was no mention of it in the decree of the court. A subsequent suit was instituted by the deity through one Sm. Sushama Roy who was the wife of the plaintiff (Monmatha) in the prior suit in her capacity as Shebaiti. Her case was that the scheme framed in the previous suit was not binding on the deity as it was against the deity's interest and she prayed for a declaration that the scheme framed in the previous suit is void, inoperative and not binding upon the plaintiff and that a new scheme should be framed for the sheba-pooja of the deity and management of the properties. The defence in the suit was that the suit as framed was not maintainable and further that the deity having been made a party to the previous suit the scheme as framed therein was binding on it under the principles of res judicata. It was held that the rule of res judicata had no application. The learned Judges held:- "It is not possible, in my judgment, to read the decree that was passed as a decree for or against the deity. So far as the deity was concerned as a party to the suit the court must be held to have passed no order at all. In my judgment, therefore, the courts below are wrong in thinking that the decree passed as on compromise between Monmatha and Atul will operate as res judicata as against the deity represented by a person appointed by the court, who was not a party to the compromise and who was not mentioned at all in the decree that was passed." 5. So also in the present case, the plaintiffs who were coowners with Vareed were not made parties to the previous suit. As between coowners there cannot be any bar of res judicata since the right possessed by each of the coowners is specific and ascertained. The compromise entered into by Vareed cannot make the position different. In the first place, the rule of res judicata cannot apply to compromises as it can apply only to cases heard and finally decided. As between coowners there cannot be any bar of res judicata since the right possessed by each of the coowners is specific and ascertained. The compromise entered into by Vareed cannot make the position different. In the first place, the rule of res judicata cannot apply to compromises as it can apply only to cases heard and finally decided. A Division Bench of the Madras High Court held as early as in AIR 1929 Mad. 86 (Ramaswamy v Alagathai Anni) that the rule of res judicata does not strictly apply to compromise suits as it applied in terms to what was actually heard and finally decided and that S.43 of the old code corresponding to 0.2, R.2 of the present code had no application where the parties to the suits are not the same. In Mankikanak Ratan v. Sundarmunda (AIR 1939 Pat. 225), Fazl Ali, J., (as he then was) held that- "Where the plaintiff in a suit to set aside a sale was not a party to a previous suit brought by his father and others for the same purpose but was joined as pro forma defendant, he having refused to join as plaintiff on father's death, which suit was compromised in appeal in which the defendant's title was admitted by others, a decree based on the compromise is not res judicata against him as he was no party to the compromise." 6. Learned counsel for the appellants in challenging the finding of the lower G appellate court cited several rulings. AIR 1949 Mad. 379 (Narayanaswami Naidu v. Parvati) for instance cited by him was concerned with the settlement of a right claimed in common by all the parties. Kishan Seth v. Ram Prasad (AIR 1949 All. 761), Sonachalam v. Kumaravelu (AIR 1928 Mad. 445), Chlntaharan v. Gujaraddi ( AIR 1951 Cal. 456 ), Sundara Ayyar v. Sivasankara Menon (36 Cochin Law Reports 182) and Mulla's C. P. C. (13th Edn.) Vol. I, page 81, cited by the learned counsel, all related to suits brought in a representative capacity. In 36 Cochin Law Reports 182, the suit was one by a junior member of a Nair tarwad to set aside certain alienations. 456 ), Sundara Ayyar v. Sivasankara Menon (36 Cochin Law Reports 182) and Mulla's C. P. C. (13th Edn.) Vol. I, page 81, cited by the learned counsel, all related to suits brought in a representative capacity. In 36 Cochin Law Reports 182, the suit was one by a junior member of a Nair tarwad to set aside certain alienations. There was a prior suit for the same purpose in which all the minor members of the family including the plaintiffs in the second suit were represented by their guardian and in such circumstances the court held that:- "the present suit is barred by res judicata. Every individual member of a joint family or Malabar tarwad has a personal right to conserve the interests of the tarwad and therefore he can maintain an action questioning an alienation effected on behalf of his family. But this is a common right vested in the membership of the family generally, and so when once the matter has been properly, and bona fide litigated upon, the alienee should not be dragged into court again." Such a contention is not available in the present case. Here the suit by Vareed was not brought for the family and as a matter of fact there was no family also as such. The present suit, therefore, cannot be barred by res judicata. The compromise was entered into by Vareed in his individual capacity and not as a representative of the family. 7. A plea of estoppel was also raised on behalf of the appellants. The argument is that the plaintiffs in the present case did not object to the compromise in the previous suit and as they have derived benefits therefrom they are estopped from taking a contrary stand in the present suit. This is again begging the question. There is nothing to indicate that the compromise was entered into by Vareed with the knowledge and on behalf of these plaintiffs. Since they were not parties to the suit the compromise cannot bind them. It is alleged that Vareed was given Rs. E 150/- in pursuance of the compromise and with that amount he dug another well which is being used by the present plaintiffs also. There is no basis for any of these contentions. Since they were not parties to the suit the compromise cannot bind them. It is alleged that Vareed was given Rs. E 150/- in pursuance of the compromise and with that amount he dug another well which is being used by the present plaintiffs also. There is no basis for any of these contentions. Estoppel is a rule of evidence and the general rule is enacted in S.115 of the Evidence Act, which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to E deny the truth of that thing. This is the rule of estoppel by conduct which of course cannot apply, as the present plaintiffs have not by their conduct made the plaintiff in the other suit believe a thing to be true and to act upon such belief. But according to the learned counsel the plaintiffs are estopped by record, which in effect constitutes the bar of res judicata and from the points adverted to above, we have seen that there is no bar of res judicata in the present case. The rule of estoppel also in the present circumstances cannot bar the suit. 8. A plea of easement of necessity was also put forward which has rightly been negatived by the learned appellate Judge. An easement of necessity no doubt will stand extinguished when the necessity comes to an end; but here what was claimed was not a right of easement but absolute right to l/3rd of the well. What was referred to in Ex.P1 is not a mere right to draw water but to l/3rd right of the well itself. Such a right cannot be extinguished by non-user. 9. The only other question, in the circumstances, that calls for consideration is the identity of the well. The defence has a case that the well mentioned in the partition has been filled up and the well that is now seen in the property is a different one, over which the right cannot be claimed. It is for resolving this question that the remand has been ordered by the learned appellate judge. The defence has a case that the well mentioned in the partition has been filled up and the well that is now seen in the property is a different one, over which the right cannot be claimed. It is for resolving this question that the remand has been ordered by the learned appellate judge. It cannot be said that the course adopted by the learned appellate judge is in any way improper. I see no reason to interfere. The Judgement of the lower appellate court is confirmed and this CM. Appeal is dismissed.