1. This is a second appeal by the defendant from the decree passed by the learned Additional District Judge, Etah, upholding in appeal the decree passed by a Munsif of that District in a suit for possession brought by the plaintiff, Dhani Ram, who has since died and is now represented by his son Om Prakash. The suit was decreed by the trial Court. The defendant's appeal to the lower Court was unsuccessful.
2. The facts, so far as they are necessary for the purposes of this appeal, are no longer in dispute. The shop in dispute, together with a house, belonged to one Ganga Ram, son of Ishwar Das, of Kasganj, where the property in dispute is situate. There were many persons in Kasganj of the name Ganga Ram, and this fact has proved to be a fruitful source of litigation. The plaintiff Dhani Ram claimed title under a mortgage deed executed by Ram Chandar, son of Ganga Ram, alleged, to be son of Ishar Das, on 16th March 1921. The mortgage was in respect of the shop in dispute. Subsequently Ram Chandar sold the house and the shop in dispute to one Dal Chand. The latter was resisted by Mt. Katoria, defendant-appellant, in taking possession of the house and the shop. She claims ed to be the widow of Jai Dev, son of Ganga Ram, son of Ishwar Das. She denied that Ganga Ram, son of Ishwar Das, had another son Ram Chandar. Her case was that on the (death of Ganga Ram, son of Ishwar Das, his interest in the house and the shop devolved upon her only son, Jai Dev, her husband, on whose death she obtained the entire property under a will executed by Jai Dev. It became necessary for Dal Chand to institute a suit for recovery of possession against Mt. Katoria. Accordingly he instituted such a suit against her. The principal question in the case was whether Ram Chandar, the vendor of Dal Chand, was the son of Ganga Ram, son of Ishwar Das. It does not appear to have been disputed that Jai Dev was the son of Ganga Ram, son of Ishwar Das. Dal Chand's case was that, on the death of Ganga Ram, son of Ishwar Das, property devolved upon his two sons, Jai Dev and Ram Chandar, and that on the death of Jai Dev his interest survived to Ram Chandar, so that he became the sole owner of the house and the shop. In this view, Ram Chandar was entitled to transfer the house and the shop in their entirety to Dal Chand. Ram Chandar was a party to that case, but Dhani Ram, the plaintiff of the present suit was not. He (however gave evidence in support of Dal Chand's allegation that Ram Chandar was the son of Ganga Ram, son of Ishwar Das. It was held that Ram Chandar was not the son of Ganga Ram, son of Ishwar Das. Dal Chand's suit was accordingly dismissed finally by this Court on 29th March 1926. Dhani Ram then instituted a suit in 1927 for enforcement of his mortgage against Ram Chandar. He did not implead Mt. Katoria. It does not appear whether the suit was contested, but this fact is not material in view of the findings arrived at by the lower Court. A decree for sale was passed in due course. The property was sold and purchased by Dhani Ram himself. Formal delivery of possession was given to Dhani Ram; but he did not succeed in obtaining actual possession and had to institute against Mt. Katoria the suit which has given rise to this appeal.
3. The suit was resisted, inter alia, on the three grounds: (1) The decision in Dal Chand's suit operates as res judicata in the present litigation; (2) Ram Chandar is not, in fact, the son of Ganga Ram, son of Ishwar Das; and (3) Mt. Katoria has been in adverse possession of the shop in dispute. Both the lower Courts have found that the decision in Dal Chand's suit does not operate as res judicata, and that Ram Chandar, was the son of Ganga Ram, son of Ishwar Das. They also repelled the plea of adverse possession put forward by the defendant-appellant.
4. In second appeal the aforesaid pleas have been reiterated. It is obvious that if the decision in Dal Chand's suit operates as res judicata between Dhani Ram and Mt. Katoria, it is not necessary to consider the finding of fact, arrived at by the Courts below, namely, that Ram Chandar was the son of Ganga Ram, son of Ishwar Das. It may however be mentioned that the learned advocate for the defendant-appellant has challenged that finding on the ground that some inadmissible evidence has been relied on by the lower appellate Court and that some evidence adduced on behalf of the defendant has been ignored.
5. The learned advocate for the appellant argues that as Dhani Ram acquired part of the interest which he now claims to be yested in him after Dal Chand's litigation, the decision in Dal Chand's suit operates as res judicata so far, at any rate, as the equity of redemption is concerned, which became vested in Dhani Ram in 1927, several years after the decision in Dal Chand's suit. I do not think this contention is well-founded. Any decision obtained against a mortgagor after the execution of a mortgage deed cannot operate as res judicata against the mortgagee, if he (the mortgagee) was not party to the suit. Much less will a decision between a transferee of the mortgagor and a third person operate as res judicata between the mortgagee and such transferee when the same question arises in a subsequent suit. The mortgagee cannot be considered to be litigating under the same title in the subsequent suit as the mortgagor did in the earlier suit. Nor can he be said to be litigating under the same title as the transferee of the mortgagor. It is clear to me that in the earlier litigation Dal Chand did not represent the interest vested in Dhani Ram, nor can Ram Chandar, who was a defendant in that case, be said to represent the mortgagee's interest after the mortgage. This view is supported by Ramchandra Dhondo v. Malkapa 1916 Bom. 204, and cases therein considered. The fact that the mortgage was enforced 'Subsequent to the 'decree in Dal Chand's suit and the plaintiff purchased the shop in dispute after it, will, in my opinion, make no difference. Dhani Ram acquired his right to sell the mortgaged property in 1921 by virtue of 'his mortgage deed, Ram Chandar had parted with an interest in the property on execution of the mortgage deed, one of the incidents of which was that the mortgaged property was liable to be sold If the mortgage money was not paid within due date or when demanded by the mortgagee. After the mortgage the property in the hands of the mortgagor, Ram Chandar, was subject to the liability of being sold in enforcement of the mortgage. Mt. Katoria did not acquire the rights of Ram Chandar by virtue of the decree in Dal Chand's suit which merely created a bar against Dal Chand and those claiming under him. That bar does not operate against the plaintiff who can establish Ram Chandar's right. In this view, I am unable to accept the argument of the defendant's learned advocate that Dhani Ram acquired part of his present interest after the decree in Dal Chand's suit and therefore the decree affects the part so acquired.
6. As regards the question whether Ram Chandar was the son, of Ganga Ram, son of Ishwar Das, the finding arrived at by the lower Courts is one of fact and must be accepted as conclusive in second appeal. It has been challenged on the ground that the learned District Judge relied on inadmissible evidence. It is said that the shop and the house in dispute are mentioned as belonging to Ram Chandar in certain sale deeds, which refer to them as one of the boundaries. The trial Court held that the recitals in the sale deeds, though they ware between third parties, are some evidence of the fact that Ram Chandar was the owner of the house and the shop. The learned District Judge however has talc en a different view. He thought that they were not admissible for the purpose of proving Ram Chandar's ownership, but he considered them to be relevant for the limited purpose of showing that Ram Chandar at least occupied the house as was stated by the plaintiff's witnesses, The defendant maintained that Ram Chandar had nothing to do with this family and never lived in this house. In my opinion the recitals in the sale deeds are admissible in evidence showing a recognition of Ram Chandar's right. They are also admissible. The question of value is however different. In my opinion the finding of the lower appellate Court is not vitiated by the fact that some reliance was placed upon the recitals in the sale deeds between third parties.
7. It is complained that the learned District Judge did not refer to some evidence produced on behalf of the defendant. The learned Judge says in arriving at his finding that he considered all the evidence in the case. It was not necessary for him to mention by name every document and every witness produced in the case.
8. The defendant's plea of adverse possession has no force. The mortgage in favour of Dhani Ram was a simple mortgage. He acquired his right to possession for the first time when he purchased the shop at the auction held in 1928 in execution of his own decree. The present suit was well within 12 years from that date. The result is that this appeal fails and is dismissed with costs. Leave to appeal under the Letters Patent is asked for. I do not think that this is a fit case in which leave should be granted. It is accordingly refused.