1. The dispute in this appeal relates to a kothari and sidhari which formed a part of a larger house, which has been the subject of litigation between the parties more than once. The original owner of the house was one Sil Chand who had two sons Gulab Rai and Parshadi Lal. He sold half the house to Gulab Rai. Subsequently a suit was brought by Sil Chand and Gulab Rai in 1909 for the ejectment of Parshadi Lal from the said house on the allegation that he was occupying it with the consent of the plaintiffs That suit was decreed on the 29th January 1910, and the plaintiffs claim to have possession through Court in pursuance of that decree on the 8th July, 1910.
2. Sil Chand died in 1913. Parshadi Lal and his sons thereafter brought a suit against Gulab Rai for the partition of a one-fourth share of the said house along with some other property. But that suit was dismissed on the ground that Parshadi Lal had separated from his father in his life-time, and that though Gulab Rai had also separated from him he had reunited with him before his death. The allegation of the plaintiff Gulab Rai in the present suit was that the defendants who are the sons of Parshadi Lal had come into the house after the death of Sil Ghand on a visit of condolence and that they had remained in possession of the room and Sidhari aforesaid since without any right. The Court of first instance however found that they had been in possession of the house along with their father Parshadi Lal from more than twelve years prior to the suit. On appeal the learned Additional Subordinate Judge held that it was not necessary to go into the question of adverse possession or limitation because according to the view taken by him of the evidence adduced in the case, the plaintiff had not obtained actual possession over the portion of the house in question, as required by law, and that Section 47 of the Code of Civil Procedure therefore barred the claim. There was a further appeal to this Court which was summarily dismissed with an observation that the point of law was purely academic, that the facts had been clearly found and that if the lower Appellate Court was not right, the first Court at all events was The lower Appellate Court, however, did not record any finding on the question of limitation or adverse possession. It contented itself with a finding that no actual possession had been delivered to the present plaintiffs and hia father Sil Chand in execution of the decree which they had obtained against Parshadi Lal. We have however examined the evidence adduced in the case and are satisfied that the finding of the Court of first instance namely, that the defendants and their father Parshadi Lal had been in possession of the disputed portion from more than twelve years prior to the suit was amply borne out by the evidence adduced in the case. The question of the applicability of Section 47 of the Code of Civil Procedure to the circumstances of the present case therefore ceases to be material. The decision of the previous suit for partition proceeded in the Court of first instance both on the question of possession and title but the decision of the appellate Court and this Court was confined to the question of title, and the plea of res judicata so far as it affects the question of possession cannot therefore be entertained. This appeal must therefore fail and it is hereby dismissed with costs including fees in this Court on the higher scale.