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(9) One of the objections of the tenant was that the order dated 19th November 1971 passed by the Court in Misc. Application 597/70 operated as res judicata and, therefore, the execution petition must be dismissed. The Supreme Court held that there was no question of res judicata. I fail to see how that principle could be made applicable to the facts of this case. The learned counsel for the petitioner Mr. Shekhar then referred to the decision in Gandabha Jinabhai vs. Ramubhai Fakirbhai (deceased by L.R.s),, , a decision rendered by a Single Judge of that Court. The Court came to the conclusion that there was no res judicata. The facts are that one Fakirbhai had two sons (i) Jinabhai (ii) Ramubhai. Gaindabhai, who is the son of Jinabhai, filed a suit against the paternal uncle Ramubhai for partition of the property described in the plaint. One of the items in the suit was alleged in Survey No. 122. The family held tenancy rights in that property. The plaintiff claimed that his father Jinabhai was the tenant and, therefore, after his death the tenancy rights devolved on him. The paternal uncle Ramubhai contended that he was the tenant. On these pleadings, issues were framed in the presence of the parties on 4th of July, 1978 and with reference to Survey No. 122 the issues framed on that date is as under :- "WHETHER the suit property being Survey No. 122 of Dabholi village is a joint family property?"