1. This is a plaintiff's appeal under the Letters Patent from a decision of a learned Judge of this Court. The suit was for possession of a house and for recovery of Rs. 120 as damages for the demolition of a wall, for the removal of materials and for use and occupation. The plaintiff's case was based upon a sale deed dated 28th April 1931 under which he purchased this property from Mohan Lal Dip Chand, and at a later date he also added a plea of title based on adverse possession. It was alleged in the plaint that in the middle of October 1935 the defendants wrongfully dispossessed the plaintiff. It is said that the house was in a state of dilapidation and the plaintiff had placed a lock upon it and this lock was broken by the defendants. The defendants denied the plaintiff's ownership of the house. They claimed to represent a man named Bhuteshwar, who they say was the original owner of the house; but they do not disclose in the written statement how or in what manner they have come to represent the aforesaid Bhuteshwar. At a later stage they filed a mortgage deed, which purports to have been executed in their favour by Bhuteshwar on 17th November 1921, but they do not appear to have set up any particular case in respect to it and we do not even know whether the mortgage is still subsisting or not. The learn-ed Judge of the lower appellate Court says that the defendants claimed to be in possession of the house 'on behalf of Bhuteshwar in liquidation of a mortgage executed by Bhuteshwar in their favour,' and the word 'liquidation' suggests that the mortgage no longer subsists but we do not really know what the position is and learned Counsel for neither party has been able to give us any illumination on this subject. The defendants pleaded that Bhuteshwar was the owner of the property in his own right and, alternatively, that he had acquired title by adverse possession. Other pleas were also raised, but it is unnecessary to mention them. The trial Court found that the plaintiff was not the owner of the house, but that Bhuteshwar was the owner and that the defendants were holding under him.
2. The plaintiff appealed, but his appeal was dismissed. The learned Judge of the lower appellate Court found that Bhuteshwar was the original owner of this house, that the defendants were in possession on his behalf, that the plaintiff had not acquired title by adverse possession and that the defendants obtained possession in 1928 or 1929. It appears that in 1921 Bhuteshwar instituted Suit No. 1027 of 1921 in the Court of the Munsif for recovery of rent from Mohan Lal the alleged predecessor-in-interest, with Dip Chand, of the plaintiff and for his ejectment. It appears from the judgment of the appellate Court dated 5th July 1922 that the trial Court decreed the suit. The Court found that Bhuteshwar had failed to prove the tenancy of the defendant, but it decreed the suit on the ground that Bhuteshwar was the owner of the house and Mohan Lal was a trespasser. Mohan Lal appealed from that decree and his appeal was allowed by the judgment which we have just mentioned, and on 14th January 1923, Mohan Lal resumed possession of the house and thereafter the plaintiff remained in possession until 1928 or 1929. There is a finding by the lower appellate Court that the predecessors-in-interest of the plaintiff-appellant were in possession of this property for ten years prior to the decree which was passed in the Munsif 's Court in 1922 in Suit No. 1027 of 1921 and, as we have seen, there is a further finding that the plaintiff was in possession from 1923 to 1928 or 1929. The lower appellate Court finds that the continuity of the plaintiff's possession was interrupted during the period while the decree of the Munsif's Court was in force and that on this account the plaintiff has failed to establish the acquisition of title by adverse possession. It has also been found that the decision of the appellate Court in the judgment dated 5th July 1922, in Civil Appeal No. 55 of 1922 does not operate as res judicata against the defendants. The plaintiff preferred a second appeal, but it has been dismissed by a learned Judge of this Court. Two pleas have been taken before us by learned Counsel for the plaintiff-appellant. One is that the decision in the previous litigation between Bhuteshwar and Mohan Lal operates as res judicata and the other is that by the year 1928 or 1929 the plaintiff-appellant had acquired title by prescription.
3. The learned Judge of the lower appellate Court was of opinion that since Suit No. 1027 of 1921 was valued as a suit between a landlord and tenant, it was not open to the Court to go into the question of title and therefore the decision as regards Bhuteshwar's title to the property does not operate as res judicata. We find ourselves unable to agree with that view. From the judgment of the appellate Court in Civil Appeal No. 55 of 1922 it appears that Bhuteshwar -- the plaintiff to that suit -- did not clearly set up a relationship of landlord and tenant between himself and the defendant; he specifically alleged himself to be the owner of the property and this claim was repudiated by the defendant, who claimed title in himself. In the result it was found that the defendant was not the tenant of Bhuteshwar, but that Bhuteshwar was entitled to a decree for possession on the ground that he was the owner of the property and the defendant was a trespasser. This was the whole basis of the decision in the trial Court, and it was this finding which was challenged in appeal, and in the appellate Court also the question of Bhuteshwar's title constituted -- and had to constitute -- the basis of the decision. When parties to a litigation join issue upon a certain matter and adduce evidence and invite a decision by the Court, that decision will undoubtedly operate as res judicata and will not in any way be affected by the circumstance that the earlier suit was valued as a suit between a landlord and a tenant and not as a suit upon title. In Jagdeo Misir v. Mahabir Tewari : AIR1927All803 , a Bench of this Court, after referring to two decisions of the Privy Council, namely, Tribhnban Bahadur Singh v. Rameshwar Bakhsh Singh ('06) 28 All. 727 and Midnapur Zemindars Co., Ltd. v. Naresh Narayan Roy ('24) 11 A.I.R 1924 P. C. 144 observe:
We think that those two cases are authorities for the proposition that if a party raises an issue, however improperly, in a ease which is accepted by the other side and if the Court itself accepts the issue to be one relevant to the enquiry and necessary for the determination of the ease, and that issue is argued out by both parties and a judicial decision come to, it is not open subsequently for either of the parties or their successors-in-interest, or the person claiming through them, to say that the issue does not constitute res judicata.
4. The appellate Court found in the earlier ease that Bhuteshwar was not the owner of the house in suit and in our opinion this finding clearly operates as res judicata. Learned Counsel for the defendants-respondents has objected that in Suit No. 1027 of 1921 the Munsif had no jurisdiction to decide the question of title inasmuch as the value of the property was over Rs. 1000. There are two answers to this objection. In the first place it was the respondents' predecessor himself who instituted that suit; he invited and accepted the jurisdiction of the Munsif and he cannot now be heard to plead that the Munsif had no jurisdiction. It is specifically provided in Section 11, Suits Valuation Act, that an objection as regards valuation shall not be entertained by an appellate Court unless the objection was taken in the Court of first instance or the appellate Court is satisfied that the overvaluation or under-valuation of the suit has prejudicially affected its disposal and we think that this principle will apply a fortiori so as to bar the raising of any such objection in another suit. The other answer to the objection is that the learned Judge of the lower appellate Court has not accepted the contention that the value of the property was over Rs. 1000. The learned Judge says: 'In the case before me the property is alleged to be worth Rs. 300. There is no evidence to the contrary.' We are unable to accept this contention as regards want of jurisdiction in the Court of the Munsif who tried Suit No. 1027 of 1921. As we have already seen, there is a finding by the lower appellate Court that the plaintiff was in possession up to 1928 or 1929. He was then dispossessed by Bhuteshwar, but it is res judicata that Bhuteshwar had no title to the property. Section 110, Evidence Act, provides:
When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
5. Thus the onus lay on the respondents to prove that the appellant was not the owner of this property when he was dispossessed in 1928 or 1929. Their case was that Bhuteshwar, their predecessor-in-interest, was the owner, but this allegation is concluded against them by the judgment of the appellate Court in Civil Appeal No. 55 of 1922. Thus the respondents have failed to prove that the plaintiff-appellant was not the owner of this house in 1928 or 1929, when he was dispossessed. This being the position, it follows that the plaintiff-appellant is entitled to a decree for possession. Having regard to this finding, it is unnecessary for us to discuss the plea of adverse possession. There was an issue as regards the amount of damages if any, to which the plaintiff was entitled, but, it appears from the judgment of the trial Court that counsel for the defendants did not argue this point and adduced no evidence in respect to it and the finding, therefore, was that the plaintiff was not entitled to any damages. Since the matter was not pressed in the trial Court, there is no occasion for us to send the case down for a finding by the lower appellate Court. The result of our finding is that we allow this appeal and set aside the decree of the Courts below and we decree the suit of the plaintiff appellant for possession of the property in suit. The appellant is entitled to his costs in all the Courts.