1. The facts of this case are father complicated, but they appear to be as follows. The pedigree given in the judgment of the learned District Judge dated the 18th May, 1921, should be referred to, to understand the relationship which exists between the parties. There were three brothers, ignoring the fourth who does not count, viz., Sheo Singh, Khubi and Sobha. Sobha's son was Bawar and his wife was Mt. Dhapo. Khubi's son was Nihal. Sheo Singh's sons were Nanak and Fatte. We hear nothing as to what happened to Nanak and he was seen left out of account. Fatte's sons are the defendants. They are also the appellants in this Court. Bawar died about 50 years ago and on his death his widow married his cousin Nihal. The plaintiffs-respondents ate the sons of Mt. Dhapo and Nihal. Bawar left no issue. The plaintiffs brought the suit, out of which this appeal has arisen for the ejectment of the appellants on the ground that the plots in suit were the Sir lands of Mt. Dhapo, their mother, and the appellants were their tenants. The defence was that the defendants were also co-sharers in the village and they were not holding as tenants of Mt. Dhapo. The Court of first instance found that the defendants appellants had brought a suit in Civil Court against Mt. Dhapo, for a declaration of their title as sir-holders when Mt. Dhapo had brought a suit in the Revenue Court for their ejectment. Indeed, the suit of the appellants against Mt. Dhapo arose out of the ejectment suit instituted by Mt. Dhapo. In that suit it was held that Mt. Dhapo was the sir-holder and she alone had the right to the possession of the lands in suit. Relying mainly on this judgment, and also on the circumstance that, the mutation orders on Dhapo's death were made in favour of the plaintiffs, who are after all the sons of Mt. Dhapo, the Court of first instance, the learned Assistant Collector, decreed the suit. There was an appeal to the District Judge. Nobody questioned the jurisdiction of that officer, because, undoubtedly a question of proprietary title was in issue. The learned District Judge came to the conclusion that the plaintiff-respondents as heirs of Mt. Dhapo were entitled to eject the defendants. He accordingly dismissed the appeal.
2. In the Court, evidently, an entirely new case was set up and it was this. Mt. Dhapo was the widow of Bawar and was in possession in that capacity. The parties to the suit were the reversioners to the estate of Bawar, that the plaintiffs alone were not entitled to the entire holding and that they were not, therefore, entitled to eject the appellants who were co-sharers. The learned Judge of this Court before whom the second appeal came thought an enquiry should be made on this point and he remanded the following issue for decision. The learned Judge did not write any judgment regarding his grounds for remanding the issue. But it is clear from grounds taken up in second appeal and from his order that he entertained the plea that if Mt. Dhapo was holding the property on behalf of her first husband Bawar, the parties would be entitled only as revorsioners and the plaintiffs would have no special title to the property as the sons of Mt. Dhapo.
3. The issue that was remanded was this:
Was Mt. Dhapo in possession of the plots in dispute as the widow of Bawar, or was she in possession of these plots adversely to the heirs of Bawar aforesaid in case her right to possession 'came to an end on her re-marriage, and if so, how long did such possession continue?'
4. It has been urged before me that, this Court; should not have allowed a new case to be set up. I would agree with this contention, but I think it is too late to renew it. If there had been no remand the matter would have been different. But there was a remand and the parties had full opportunity to meet this new case. In the circumstances I do not think it is desirable that the new phase of the case presented before this Court should be altogether ignored. The learned District Judge on remand came to the conclusion that according to the custom obtaining among the Jats, Mt. Dhapo would forfeit her right to the estate of her first husband as his widow. He accordingly held that the possession of Mt. Dhapo was adverse. Evidently the learned Judge meant that she had completed an independent title for herself. If we accept this position it is clear that the plaintiffs' suit is bound to succeed. For, in that case, nobody other than the plaintiffs would be entitled to succeed to the absolute property of Mt. Dhapo. But it is contended for the appellants that the learned Judge was wrong in law in holding that the facts proved showed that Mt. Dhapo was in adverse possession of the property in question. It appears that the judgment', which was given in favour of Mt. Dhapo in the civil suit brought by the appellants against her for a declaration of title to the lands, does not operate as res judicata on the question whether Mt. Dhapo was holding the lands in her own right or as a Hindu widow. No such question then arose, for, Mt. Dhapo herself was alive. The position now is this. It is common ground that, on the death of Bawar, Mt. Dhapo became entitled to the property. She then married a cousin of Bawar, Nihal, who would be, at least, ona of the reversionors to the estate of Bawar. Another reversioner would be Fatte, the father of the appellants. If Mt. Dhapo forfeited her rights to the estate of Bawar, Nihal and Fatte would be entitled to come in at once and oust Mt. Dhapo from her possession. This did not happen. Thus Mt. Dhapo remained in possession in the teeth of the title of Fatte and Nihal. Her possession was undoubtedly adverse to them. But the matter does not conclude there. The question is whether Mt. Dhapo has prescribed for herself in her independent right or as the widow of Bawar. It is to I be remembered that she came into possession as the widow of Bawar. There is no I indication whether she knew or not that I on her re-marriage she forfeited her right to the estate of Bawar. There is no indication that Mt. Dhapo ever declared that she was holding the property in her own right and not as the widow of Bawar. The probability therefore is that Mt. Dhapo continued to hold the property in the same right in which she came into possession, viz., as the widow of Bawar. By completing 12 years adverse possession against Nihal and Fatte she acquired the property for her first husband Bawar. If this be right the reversioners to the estate of Bawar would be entitled to the property left by Mt. Dhapo and not Mt. Dhapo's own sons, as such. The view taken in the Privy Council case of Mt. Lajwanti v. Safa Chand A.I.R. 1924 P.C. 121, under similar circumstances was that, the lady in possession was in adverse possession to the reversioners. But she completed a title on behalf of her late husband and the person (the daughter of the late husband and step daughter to the lady) who was entitled to the estate of her husband was the person who must succeed. I hold under the circumstances that Mt. Dhapo prescribed for the benefit of her first husband's estate and that, therefore, the parties are the heirs to that estate.
5. Now the question is what should be the fate of the suit, according to the finding recorded above. The suit was brought in the Revenue Court, but an appeal lay to the Civil Court as a question of proprietary title had been raised. In the circumstances it would not be right to dismiss the suit simply on the ground that a Revenue Court was not competent to grant a declaratory decree such as I propose to grant in this case. The parties being entitled to the possession of the lands in suit, the plaintiffs would not be competent to eject the defendants, whose possession is of several years.
6. I, therefore, modify the decrees of the Courts below and instead of decreeing the ejectment of the defendants I give a decree for joint possession to the plaintiffs over the lands in suit with the defendants to the extent of the share that the plaintiffs may have in the property. I refrain from defining what their share would be, because I am not in a position to know whether Nihal had three of four sons surviving Mt. Dhapo. The quantity of share would depend on this information. In the circumstances of the case I order that the parties should pay their own costs through out.