1. This is a Second Appeal from the judgment and decree of the learned District Judge, U. A. D., dated 13th January, 1950 by which he affirmed the judgment and decree of the trial court which had dismissed the plaintiff's suit with costs.
2. The plaintiff Kamal is the son of one Dharmeswar and grand son of Krishna Kanta. The plaintiff brought a suit for a declaration that he was entitled to the office of the Adhikar of the Gomotha Mahara Satra mentioned in Schedules (Ka) and (Kha). The defence to the suit was that the plaintiff was not entitled to the declaration sought as the rule of succession was not as claimed by him namely that the office was to devolve on the senior male member of the family, but that the office was to devolve on the nominated son of the last Adhikar; that Pitambar who was the son of the last Adhikar namely Kamdev and nominated by him to the office of the Adhikar was entitled to the office and after Pitambar's death Defendant 2 and not the plaintiff was entitled to the office.
3. Upon the pleadings the trial court framed the following issues :
(1) Whether the question about the rule of succession to the adhikarship is barred by res judicata or yet open in view of the decision in Title Suit No. 780 of 1907 and of the appellate decree in Title Appeal No. 59 of 1909.
(2) What is the rule of succession to the adhikarship in the Satra in question?
(3) What are the properties of the Satra and who is entitled to the same?
(4) To what relief if any are the parties entitled?
4. Before us the only issue argued was the issue relating to the bar of res judicata. It is contended by Mr. Ghose for the appellant that in view of the decision in suit No. 780 of 1907 brought by Kamal's father Dharmeswar declaring Dharmeswar's right to the office in question in virtue of a rule of succession which enabled the senior male member of the family to succeed to the office, the decision in the present suit, being a decision contrary to the decision given in the suit of 1907, must be set aside and the appellant declared as being entitled to the office. We are unable to accept the contention.
5. It is true that after Dharmeswar obtained a decree in his favour, Pitambar, the sole defendant in the suit of 1907 preferred an' appeal and during the pendency of the appeal Dharmeswar died and his legal representatives were not brought on the record by Pitambar. The first appellate court in the suit of 1907 stated in its judgment bearing upon the failure of Pitambar to bring the legal representatives of Dharmeswar on the record :
'I see no use in making his children his representatives as they have no claim by seniority and there is nobody to contest Pitambar's position now. The appeal is dismissed, but it will be entered into the appellate decree that the question decided by the Munsif was a personal one between the plaintiff and the defendant and that the plaintiff has died and he has no successor who can contest the defendant's right on the ground of seniority, the question whether succession is by seniority or otherwise as a general rule is left open.'
6. Mr. Ghose for the appellant contends that the learned judge had no jurisdiction to keep the question of the rule of succession open after the appeal had abated by reason of the failure of Pitambar to bring the legal representatives on the record. Whether the first appellate court on appeal from the decision in Suit No. 780 of 1907 had jurisdiction to make such an observation is immaterial for the purpose of a decision of the present appeal.
7. We do not think the bar of res judicata has any application to the facts of the case before us. It is clear from the language of Section 11 that the bar of res judicata is operative only when the matter is between the same parties or between parties under whom they or any of them claim. The first suit of 1907 was between Dharmeswar and Pitambar only, whereas the present suit is between Dharmeswar's son Kamal and the sons of Pitambar. Can it be said in this case that the appellant Kamal is claiming under Dharmeswar, his father? We think not. The plaint does not show that Kamal is claiming the office under his father. He claims the office in virtue of a rule of succession according to which the office devolves upon the senior male member of the family. It is true that Dharmeswar, father of the appellant in the suit of 1907, also claimed the office in virtue of his being the senior male member of the family. But it is manifest that being the senior male member of the family is entirely a personal status. It is not derived from anybody. When Dharmeswar died, his son Kamal was not the senior male member of the family. It was Pitambar. It is true that upon the death of Pitambar, Kamal became the senior member of the family but he might not have been so if any of the brothers of Pitambar had been living. The emergence of the appellant as a senior male member of the family was therefore purely an accident of survival, a survival which can be attributed only to Providence and not to the father of the appellant. In other words the present suit was brought by Kamal in his own right as a senior member of the family and not under any right claimed under his father Dharmeswar. In this view Section 11 has no application and we hold that the decision in the present suit is not barred by res judicata, or the Principles of Res judicata. On questions of fact the appeal is concluded by concurrent findings of fact. The result is that the appeal is dismissed with costs.
Ram Labhaya, J.
8. I agree.