1. This is a defendants' first appeal against a decree for possession passed by the learned Subordinate Judge of Ghazipur. The plaintiff's in the suit claimed possession of certain properties specified in Schedule A of the plaint and that claim was substantially decreed; hence the present appeal. The plaintiffs claimed the properties as being the reversioners of one Gopal Rai, deceased who died whilst still a minor on 14th December 1918. At the date of his death the plaintiffs alleged that their father Sheo Tahal Rai was the nearest heir and was thus entitled to the estate by right of inheritance. Sheo Tahal Rai however admittedly died some time after Gopal Rai, and the plaintiffs as his only sons now claim that they are entitled to the property as representing their father. After much litigation in the revenue Courts the defendants obtained mutation of their names in the revenue papers; hence the plaintiffs were compelled to bring this suit for possession of the properties. The defendants' case was that the plaintiffs were not the nearest heirs of Gopal Rai but, on the contrary, that they were only very distantly related to the deceased. They allege that they are the nearest heirs and are therefore entitled to Gopal Rai's property by right of inheritance. In answer to these contentions of the defendants the plaintiffs replied that the defendants were in any event estopped from setting up that they were the nearest heirs of Gopal Rai, deceased, and further that the issue as to who were the nearest heirs of Gopal Rai, deceased, had already been decided against the defendants and in favour of the plaintiffs and that the matter was therefore res judicata. A number of other subsidiary issues were raised in the case, but it is not necessary to refer to them in this judgment as the points have not been pressed by one side or the other in this appeal.
2. The plaintiffs, as stated previously, are the only sons of Sheo Tahal Rai. They filed a pedigree with the plaint, and from this pedigree it will be seen that Sheo Tahal Rai was the son of Harpal Rai who was the son of Jhakri Rai who was in turn the son of Nihal Rai who was the son of Bisraon Rai. According to the plaintiffs' pedigree Gopal Rai was the only surviving son of Ram Charittar Rai who was the son of Shubh Karan Rai who was the son of Algu Rai who was the son of Bechu Rai who was the son of Gendu Rai who was in turn the son of Bisraon Rai. It will be seen therefore that the plaintiffs allege that they are the direct descendants of Nihal Rai and that Gopal Rai was a direct descendant of Gendu Rai. According to the pedigree Nihal Rai and Gendu Rai were real brothers and were the only sons of Bisraon Rai. It is conceded by the defendants that if the plaintiff's pedigree be true the latter are the nearest heirs and reversioners of Gopal Rai deceased, but they allege that Gendu Rai was not a son of Bisraon Rai but the son of one Dammal Rai who was a member of an entirely different branch of the family.
3. The defendants also filed a pedigree with their written statements and from that pedigree it will be seen that defendant 1, viz. Jadik Rai, is the son of one Gajadhar who was a direct descendant of one Manorath who was the son of Pahalwan Rai and grandson of Jagrup Rai. Defendant 2 is the son of Dwarka who was a direct descendant of Kanhaiya Rai, a brother of Manorath and a son of Pahalwan Rai and a grandson of Jagrup Rai. Defendant 3 is the son of Nandan who was a direct descendant of Manorath to whom we have previously referred. Defendant 4 is the son of Chandar and was also a direct descendant of Kanhaiya Rai, the brother of Manorath. Defendant 5 has been impleaded because he is the mortgagee of a part of the property under a mortgage executed by defendant 3.
4. From the pedigree filed by the defendants it will be seen that Gopal Rai's descent from Gendu Rai is set out in very much the same manner as appears in the pedigree filed by the plaintiffs with this one great difference: that Gendu Rai is shown as being the son of Dammal Rai who was a brother of Kanhaiya Rai and Manorath to whom we have previously referred. According to the defendants' pedigree Bisraon Rai was the son of Jit Rai who was the son of Sugriva Rai. Dammal Rai, Kanhaiya Rai and Manorath were three of the four sons of Pahalwan Rai who was the son of Jagrup Rai who was a real brother of Sugriva Rai. Thus it will be seen that according to the defendants' pedigree Bisraon Rai and the plaintiffs were direct descendants of Sugriva Rai, a son of Jeo Narain Rai, whereas Gendu Rai, defendants 1 to 4 and Gopal Rai deceased were the direct descendants of Jagrup Rai who was the elder son of Jeo Narain Rai. In short, according to the defendants' pedigree the plaintiffs belong to an entirely different branch of the family from Gopal Rai deceased. On the other hand, according to this pedigree defendants 1 to 4 and Gopal Rai, deceased, all belong to the branch of the family which traces its descent through Jagrup Rai, and therefore they contend that they are the nearest heirs of Gopal Rai, deceased, and must be preferred to the plaintiffs. It is conceded by the plaintiffs that if the defendants' pedigree be true, and that Gendu Rai was the son, not of Bisraon Rai, but of Dammal Rai they have no claim whatsoever to possession of these properties and that the defendants are the reversioners and the nearest heirs of Gopal Rai, deceased.
5. Everything then turns upon who Gendu Rai was, because if he was a brother of Nihal Rai the plaintiffs are obviously the nearest heirs of Gopal Rai, deceased. On the other hand if Gendu Rai was not the brother of Nihal Rai but a son of Dammal Rai, the defendants are clearly the nearest heirs of Gopal Rai, deceased. The real issue in the case therefore was whether Gendu Rai, was a son of Bisraon Rai or of Dammal Rai. The learned Subordinate Judge held that Gendu Rai was a son of Bisraon Rai and a brother of Nihal Rai, and consequently held that the plaintiffs were entitled to succeed, It has been contended by the appellants in this appeal that this finding is against the weight of evidence and is in direct conflict with certain documents which were tendered in evidence the authenticity of which is beyond all dispute. Both parties adduced oral evidence to establish their respective pedigrees. The learned Subordinate Judge considered the oral evidence called by the defendants as wholly unsatisfactory. Of these witnesses he states that they made inconsistent statements in the witness-box and that their demeanour was most unsatisfactory. He describes the plaintiffs' witnesses as being more reliable and consequently he had no hesitation in rejecting the evidence called on behalf of the defendants in its entirety. According to the learned Subordinate Judge the plaintiffs' oral evidence appears to be corroborated by certain documentary evidence tendered on behalf of the plaintiffs and consequently he accepted the plaintiffs' pedigree as correct. In cases of this kind it is difficult, if not impossible, to decide the issues merely upon oral evidence. It will be seen later that Bisraon Rai died some time before 1834, and, as we have pointed out the main issue in this case is whether Bisraon Rai had two sons, Gendu Rai and Nihal Rai, or whether Nihal Rai was his only son. Obviously the witnesses could only depose to what they had been told by persons who presumably knew the family history. Such evidence can easily be concocted and therefore it must be approached with the greatest care.
6. To establish their pedigree the plaintiff Ram Kinkar Rai gave evidence, as also did the three other witnesses, viz., Pahalwan Tewari, Raja Rai and Mathura Prasad. Ram Kinkar Rai, plaintiff 1, is obviously an interested witness. He was only 42 years of age at the date of the hearing and it is most unlikely that he could have received any information from any person who was alive in 1834 or there-abouts. He stated that he had heard the pedigree from Raja Rai, deceased, who was the son of Tapsi Rai who was a great-great-grand-son of Bisraon Rai. He stated that he heard the pedigree from Raja Rai at the time of offering pinda on the death of Gulela Rai who, it will be seen from the pedigree, was a son of Jhakri Rai, grandson of Nihal Rai and the great-grandson of Bisraon Rai.
7. Pahalwan Tewari who appears to be a family priest stated that he knew the pedigree of the plaintiffs' family for the last 30 or 35 years. He deposed to the pedigree as alleged in the plaint and stated that he had heard it from his father whilst the latter was officiating at the shradh ceremony of Sheopal Rai, the plaintiffs' grand-uncle. If he only heard the pedigree upon this one occasion then this witness is capable of an extraordinary feat of memory.
8. Raja Rai, who claimed to be a member of the plaintiffs' family, also deposed to the plaintiffs' pedigree and stated that he had learnt it from Ram Charittar Rai, father of Gopal Rai, deceased, who told it to him whilst the pinda ceremony was being performed on the death of his mother Mathura Prasad further deposed to the plaintiffs' peligree. According to him he was the general attorney of Ram Charittar Rai, the father of Gopal Rai, deceased; and he stated that he heard the pedigree from the latter at the time of his grandmother's death about 20 to 22 years ago.
9. All the four witnesses appear only to have heard the pedigree on one occasion, yet they are able to give considerable detail concerning the relationship of the various parties. As we have stated previously the evidence of this kind is rarely satisfactory, and we find it impossible to decide this case upon the oral evidence which has been adduced by the plaintiffs. The oral evidence adduced on behalf of the defendants consisted of evidence of Jadik Rai, defendant 1, Hardeo Rai, defendant 4, Brijraj Rai, Parshotam Rai and Ramdilas Rai. These witnesses depose generally to the pedigree as now put forward by the defendants, and, as the learned Subordinate Judge points out, there are a number of inconsistencies in their evidence. We also cannot overlook the learned Subordinate Judge's observation that the demeanour of these witnesses was not satisfactory and therefore we cannot accept their evidence as satisfactorily proving the pedigree as put forward by the defendants.
10. We shall, therefore, have to consider the documentary evidence tendered by the parties, and, if possible, to determine from it which of the two pedigrees is the correct one. The learned Subordinate Judge held that the documentary evidence corroborated the oral evidence adduced by the plaintiffs and satisfactorily established the plaintiffs' pedigree which shows the plaintiffs to be the nearest heirs of Gopal Rai, deceased. On the other hand it has been strongly urged before us by counsel for the appellants that the documentary evidence adduced by the plaintiffs in no way corroborates the plaintiffs' verbal evidence but on the contrary it does to some extent actually show such evidence to be untrue. It was further urged that the documentary evidence adduced on behalf of the defendants conclusively established that the plaintiffs' pedigree was untrue and that the defendants' pedigree correctly showed the relationship existing between the various parties. It will therefore be necessary to consider in some detail the documentary evidence which was tendered by the learned Subordinate Judge by both parties.
11. A copy of the wajib-ul-arz for 1840 (Ex. 14) was tendered by the plaintiffs which is printed at p. 73 of the paper book. In that document the names of Gendu Rai and Nihal Rai appear next to each other and that, according to the learned Subordinate Judge, suggests that the defendants' geneological table cannot be true because it would be unlikely that the names of two persons so distantly related should appear next to each other in a document of this kind. We are quite unable to understand the reasoning of the learned Subordinate Judge. The names of Gendu Rai and Nihal Rai appear immediately following the name of one Mastu Rai and it is not suggested by plaintiffs that Mastu Rai was in any way related to either Gendu Rai or Nihal Rai. If the appearance of the names of Gendu Rai and Nihal next to each other suggests close relationship why should not the appearance of the name of Mastu Rai immediately before the names of the other two also suggest very close relationship between Mastu Rai, Gendu Rai and Nihal Rai, yet no relationship, close or distant, is alleged between these persons. In our view the facts that the names of Gendu Rai and Nihal Rai appear in this document next to each other in no way establishes that they were brothers or in fact in any way related to each other. In our judgment this document in no way detracts from the defendants' case neither does it assist the plaintiffs' case in any degree.
12. The learned Subordinate Judge was of opinion that a deposition of Ram Charittar Rai, father of Gopal Rai deceased dated 3rd December 1914 (Ex. 42) which is printed at p. 101 of the paper book strongly supported the plaintiffs' case. It appears that Ram Charittar Rai gave evidence for the plaintiffs in a suit No. 110 of 1914 which was brought by Babu Samrathi Rai against Mt. Jichha Kunwar and others Both parties in the present suit claim through Ram Charittar Rai and therefore any statement which he made on oath during his lifetime relating to his relationship with other members of his family is admissible in evidence. In this deposition Ram Charittar Rai stated that Sheopal Rai was 6 or 7 generations removed from him and was related to his (the deponent's father as uncle. According to the learned Subordinate Judge this showed that the pedigree as set up by the defendants could not possibly be true, whereas it strongly corroborated the pedigree filed with the plaint. What Ram Charittar Rai meant when he stated that Sheopal Rai was 6 or 7 generations removed from him is not clear and from the deposition it does not appear that he was cross-examined upon the question. Did he mean that he was 6 or 7 degrees removed from the ancestor common to himself and Sheopal Rai or did he mean that there were 6 or 7 degrees if he counted upwards from himself to the common ancestor and then downwards to Sheopal Rai.
13. If Ram Charittar Rai meant that there were 6 or 7 degrees between him and the ancestor common to himself and Sheopal Rai then it will be seen that this is inconsistent with the pedigree put forward by the plaintiffs because according to that pedigree there were only 5 degrees between Ram Charittar Rai and the common ancestor Bisraon Rai. On the other hand if that is what Ram Charittar Rai meant in his deposition it does not detract from the defendants' pedigree because according to that pedigree there were 8 degrees between Ram Charittar Rai and Jeo Narain Rai who was the common ancestor of Ram Charittar Rai and Sheopal Rai. Further according to the defendants' pedigree Sheopal Rai would be related to Ram Charittar Rai as a kind of paternal uncle because they were related through their ancestors Jagrup Rai and Sugriva Rai who were two brothers. On the other hand if by 6 or 7 generations removed Ram Charittar Rai meant that counting upwards from himself to the common ancestor and then downwards to Sheopal Rai there were 6 or 7 degrees then he was 7 generations removed from Sheopal Rai. However, as we have stated there is no means of knowing what Ram Charittar Rai meant by stating that he was 6 or 7 generations removed from Sheopal Rai. Counsel for the respondents has urged that such an expression means that there were 6 or 7 degrees between him and Sheopal Rai counting upwards to the common ancestor and then downwards to Sheopal Rai. It is said that that is how a villager ordinarily calculates how many generations he is removed from a person, but we have no evidence before us that this is so.
14. Counsel for the appellants on the other hand points out that the correct method of ascertaining the number of generations between one person and another is to count the degrees between that person and the ancestor common between him and the other. We have no means whatsoever of knowing what Ram Charittar Rai meant and that being so it is impossible for us to hold that his deposition in this case affords any assistance to either party in the case. That being so, we cannot agree with the learned Subordinate Judge that it is a cogent piece of evidence supporting the plaintiffs' allegations. The learned Subordinate Judge was further of opinion that a-deed of relinquishment executed by Jadik Rai and others in favour of Sheo Tahal Rai on 2nd August 1921 was the strongest corroboration of the pedigree as put forward by the plaintiffs. This deed of relinquishment was duly registered and in it Jadik Rai who executed it admitted the genealogical table relied on by Sheo Tahal Rai and now by his sons Ram Kinkar Rai and Alakh Narain Rai, the plaintiffs in the present suit. This document was relied on by the respondents in the case as an admission made by Jadik Rai, defendant 1, but it was not contended that it could be used in evidence against the other defendants who were no parties to it.
15. It is somewhat curious that no claim in the alternative to Jadik Rai's share of the property is based upon this document though if it was made for valuable consideration such a claim could be founded upon it. As we have stated it is relied upon merely as an admission by Jadik Rai, defendant 1, and it is urged that that admission concludes the matter as far as he is concerned. Jadik Rai admits executing the document in question and his defence to this part of the case is contained in para. 17 of the written statement filed by him. In that statement he says that he was duped and misled by the plaintiffs who played upon his greed and avarice. He says that he signed this deed of relinquishment without understanding its contents upon a promise that a perpetual lease of the property would be granted in favour of his wife. He further alleges that he did not get any consideration for the document, neither did his wife enter into possession of the land which was the subject-matter of the perpetual lease in her favour. He contended that the document was null and void and inoperative as it was without consideration and had never been acted upon. In short, his case is that he executed the deed of relinquishment in consideration of a bribe which had been offered to him, viz: a promise that a valuable interest in property, that is a perpetual lease would be granted in favour of his wife. He alleges that having obtained the deed of relinquishment the promise was never fulfilled by the plaintiffs. He says that a perpetual lease was in fact executed but that his wife was never put into possession. According to him no premium was ever paid by himself and his wife, and the perpetual lease was and is a dead letter and was regarded as such until the present claim.
16. It is extremely strange that Jadik Rai should have executed this deed of relinquishment in 1921 because at that time litigation was proceeding between the plaintiffs and defendants concerning the right to succeed to the property of Gopal Rai. In the year 1920 the Assistant Collector had ordered the names of Antu Rai and Gajadhar Rai, who was Jadik Rai's father, and others to be entered in place of the name of Gopal Rai, deceased, though later this decision was reversed by the Collector on appeal. The defendants however fought the matter right up to the Commissioner's Court and there obtained a reversal of the Collector's decision and mutation of names was made in their favour. It is clear that in the year 1921 the defendants or their immediate predecessors were striving their utmost to establish their claim to the property of Gopal Rai, deceased, and in such circumstances we cannot understand Jadik Rai, defendant 1, voluntarily, freely and in a bona fide manner making the admission which is contained in the deed of relinquishment. What is stranger still is that this admission was never used against the defendants in the appeal which was then pending before the Commissioner, and even to-day in this appeal it is not put forward as the basis of a claim in the alternative to Jadik Rai's share in Gopal Rai's property. If this document is a genuine one we cannot understand why it is not made the basis of a claim to Jadik Rai's share. Further, from a judgment of the Collector of Ghazipur dated 20th March 1926 it is clear that this deed of relinquishment was not relied upon by the plaintiffs even at that time in an application made by Jadik Rai for mutation in respect of certain property owned by Gopal Rai, deceased, at the time of his death.
17. The failure to put forward this document when it would have proved a very strong defence to at least Jadik Rai's claims and applications is most strange, so also is the failure to found an alternative claim upon it to Jadik Rai's share in the property of Gopal Rai, deceased, if the plaintiffs are found not to be the nearest heirs and reversioners of the deceased man. Ram Kinkar Rai stated that there was consideration for this deed of relinquishment because Jadik Rai's wife had been put in possession of the property -and was in possession on the date upon which he gave evidence. According to him the premium had been paid and the whole transaction was a perfectly bona tide one. This was denied by Jadik Rai,;a his evidence and we have therefore the conflicting statements of these two interested parties. No document has been produced which suggests that the parties acted upon these two documents. If Jadik Rai's wife took possession of the property then the probabilities are that her name was entered in the revenue papers, yet no document has been adduced in evidence to show that such mutation of names was ever effected in favour of the defendant's wife. We have anxiously considered the effect of this deed of relinquishment, and taking everything into consideration we are satisfied that it was not a bona fide admission by Jadik Rai, that the plaintiffs were the heirs of Gopal Rai, deceased.
18. It was undoubtedly made as the result of a promise of a perpetual lease which appears to us to have been in the nature of a bribe. An admission made in those circumstances cannot be regarded as conclusive against the person making it. The plaintiffs having obtained the document appear to have refused to carry out their part of the bargain and later appear to have been afraid to put forward this document when it would have been of the greatest assistance to them if it had been genuine In our judgment it would 'be unsafe to rely upon the admission made in this document having regard to the circumstances in which it was made and the attitude of the plaintiffs themselves towards the document after they had obtained its execution. For these reasons therefore we cannot regard it as in any way substantially corroborating the case as now put forward by the plaintiffs The plaintiff-respondents also relied upon a plaint dated 17th September 1921 in an ejectment suit which plaint is marked Ex. 36 and is printed at p. 137 of the paper book. The original of this plaint is not in existence and its authenticity is disputed. The plaintiffs in the suit were Ram Kinkar Rai (the present plaintiff l) for self and as guardian of Alakh Narain Rai, (the present plaintiff 2), Jadik Rai defendant 1, Antu Rai, defendant 2, and the fathers of defendants 3 and 4.
19. In that plaint the present plaintiffs are described as the sons of Sheo Tahal Rai, deceased, and the heirs of Gopal Rai, deceased. From the copy of the plaint it would appear as if some alteration had been made in the original. In para. 1 of the plaint it is first stated that plaintiffs 1 to 8 which include the present plaintiffs and defendants 1 to 4 and their predecessors-in-title alone are the owners and the zamindars of the land the ejectment whereof is sought, and later the plaintiffs are stated to be the zamindars of the land in question by right of inheritance. This suit was withdrawn for some reason or another and the defendants allege that the plaint did not bear their thumb-impressions and that they were no parties to it. They admit that one Sukhdeo Ahir had been appointed by them to carry on the suit in question, but they deny that they ever admitted in that suit that the present plaintiffs were the heirs of Gopal Rai, deceased. It must be remembered that in the year 1921 the defendants were litigating with the plaintiffs as to whose names should be substituted in the revenue papers for that of Gopal Rai, deceased, and it would be strange to find them at this stage admitting openly that the plaintiffs were the heirs of Gopal Rai, deceased, and entitled to his property. From the evidence it is impossible to say how this document came into existence and as the copy shows that the original was tampered with it is difficult to place any reliance upon it. In any event the suit was never fought out and no one from the defendants' side deposed to any of the statements which appear upon the face of the plaint. In our judgment it is impossible to rely upon this plaint as any corroboration of the plaintiffs' present claim.
20. Other documents relied upon by the plaintiffs are plaints in suits which are marked Exs. Bd, 40 and 41 and printed at pp. 139 to 150 of the paper book. In these suits the present defendants 1, 2 and 4 claimed possession of certain property. Bach claimed a fifth share of the property concerned, that is, the share to which their respective fathers -were entitled. In the property, the subject-matter of the suits, Ram Charittar Rai, the father of Gopal Rai, deceased, also had a share which devolved upon Gopal Rai upon his death. The defendants now claim to be entitled to the property of Gopal Rai, deceased, yet in these suits they made no claim to the fifth share of the property in question which had devolved upon Gopal Rai. This omission to claim a share of the property which devolved upon Gopal Rai is now urged as an admission at that time by the defendants that they had no claim to succeed Gopal Rai, deceased. These plaints were filed in the latter part of the year 1922, and from the evidence and other documents it is clear that at this time the parties were litigating in the revenue Courts, each claiming that their names should be substituted for the name of Gopal Rai deceased. As we have stated this litigation was carried up to the Commissioner's Court where a decision was obtained in favour of the present defendants, so therefore it cannot be alleged that an omission to claim a share in this comparatively small property which had devolved on Gopal Rai was an admission that they had no right whatsoever to succeed Gopal Rai upon his death. The defendants in these suits might well have wished to avoid litigating this somewhat complicated and difficult question in proceedings which involved claims of no great value. In our judgment the fact that litigation concerning the succession to Gopal Rai, deceased, was carried on continuously for a considerable period after the dates in which these plaints were filed shows that any omission to claim Gopal Rai's share in these suits cannot be regarded as an admission that the defendants were not entitled to succeed to the latter.
21. In our judgment the verbal evidence adduced by the plaintiffs is not corroborated by any of the documents adduced by them, and upon this evidence we are far from satisfied that it has been proved that the plaintiffs were the nearest heirs of Gopal Rai, deceased. The matter however does not rest there because in our judgment certain documents tendered in evidence on behalf of the defendants establish affirmatively that the plaintiffs were not the nearest heirs of Gopal Rai, deceased, but on the contrary were members of an entirely different branch of the family and only very distantly related to the deceased man. These documents on the other hand do in our view show that the defendants were far more closely related to the deceased and were at the time of his death his nearest heirs. The most important document tendered by the defendants was a copy of a decree dated 8th August 1934 which is printed at p. 67 of the paper book. This is a decree which was passed in the Court of Maulvi Muhammad Zahur, Sadr-us-Sadur and Mufti of the Civil Court of the District of Ghazipur. The plaintiffs in the suit were Nanku Rai, Jeo Nath Rai, Tulsi Rai and Ablakh Rai, and the defendants were Jhakri Rai, Aklu ai, Domran Rai and Sohran Rai. The claim was for the possession of a share in the third patti, Jai Narayan Rai, situate in mauza Jeopur Majariya, pargana Zamania, bearing a revenue of Rs. 215-9-1. This decree sets out the history of the property in question and states the relationship existing between a number of persons which is most valuable for the decision of the present case. It must here be pointed out that according to the defendants' pedigree the plaintiffs in the suit were descendants of one Gajraj Rai who was the son of Sugriva Rai and grandson of Jeo Narain Rai. The defendants were of the branch of Uit Rai who was the elder brother of Gajraj Rai. From the terms of the decree it will be seen that the dispute concerned the property of Sugriva Rai, each of the branches representing his two sons being parties to the dispute.
22. Amongst the defendants is Jhakri Rai: who according to both pedigrees was the son of Nihal' Rai and the grandson of Bisraon Rai. According to the plaintiffs' pedigree Bisraon Rai had another son Gendu Rai from whom the plaintiffs claimed descent and if this were so it is somewhat odd that neither Gendu Rai nor any of his direct descendants appear amongst the defendants in this suit of 1834. This does not in itself establish that Bisraon Rai had only one son Nihal Rai: whose branch is represented in the suit by Jhakri Rai because it may be that Jhakri Rai was representing not only himself and his descendants but also the descendants of Gendu Rai. It is, however, somewhat significant that none of Gendu Rai's branch appears in this case.
23. From the statement of facts set out in the decree it appears that Sugriva Rai had an elder brother Jagrup Rai and both of them were the sons of Jeo Narain Rai. Further Sugriva Rai, had two sons, one Jit Rai and the second Gajraj Rai. It will be further seen from this statement of facts that Jit Rai had two sons Hicha Rai and Bisraon Rai and it is stated that at the date of this suit Bisraon Rai was dead. It is stated that Jagrup Rai received not only a half share of his father's property but also an additional ten per cent as jethansi right and that the revenue borne by his share was Rs. 585-3-1. His brother Sugriva Rai took the remainder of the property which bore a revenue of Rs. 479-9-3.
24. This suit was eventually compromised and under the terms of the compromise the plaintiffs received a fourth share of Sugriva Rai's property which would bear a revenue of Rs. 119 odd, thus leaving the defendants in the suit property bearing a revenue of Rs. 359 odd. As we have stated the plaintiffs were the descendants of Gajraj Rai, whilst the defendants were the descendants of Jit Rai, and as a result of this compromise the descendants of Gajraj Rai received a fourth share of Sugriva Rai's property which would bear a revenue of Rs. 119 odd, whereas Jit Rai's branch kept the remaining three-fourths of the property which would bear a revenue of Rs. 359 odd. At p. 186 of the paper book is printed a pattidari statement of mauza Jeopur for the year 1841 and from this statement the names of the co-sharers in the third patti Jeo Narayan Rai can be ascertained. The last ten names in this statement hold property bearing a total revenue of Rs. 1,064 which was the total revenue of the property held by the two sons of Jeo Narain Rai. The first co-sharer's name is Jhakri Rai who is shown as holding property bearing a revenue of Rs. 162 odd. Jhakri Rai was undoubtedly the son of Nihal Rai and the grandson of Bisraon Rai, and if the defendants' pedigree be true he took the whole of Bisraon Rai's share. On the other hand if the plaintiffs' pedigree be true Bisraon Rai's property was divided between Gendu Rai and Nihal Rai and therefore Jhakri Rai could at most only take his father's share, viz. half of the property, or if Jethansi right applied, slightly less than half.
25. Bisraon Rai was one of the two sons of Jit Rai, the other being Hicha Rai. Jit Rai's branch by the terms of the compromise obtained a three-quarters share of Sugriva Rai's property and this three-quarters share would bear a revenue of Rs. 359 odd. Hicha Rai, the eldest son of Jit Rai, would be entitled to one half of his father's property, plus 10 % as jethansi right and upon this calculation Hicha Rai's share would bear a revenue' of Rs. 197 odd, leaving Bisraon Rai with property bearing a revenue of Rs. 162 odd.
26. According to the pattidari statement for 1841 to which we have referred, Jhakri Rai is shown as holding property paying that precise sum as revenue. From this statement it is clear that Jhakri Rai had in his name the whole of the share of Sugriva Rai's property which came to Bisraon Rai. Had Bisraon Rai had two sons Gendu Rai and Nihal Rai, each would have a share in the property and Jhakri Rai could not possibly have had the precise share which his grandfather Bisraon Rai had. His share would have borne a revenue of Rs. 81 odd or a somewhat lesser sum. That Jhakri Rai appears in this pattidari statement as-holding property bearing the precise revenue which the property of his grandfather Bisraon Rai bore is strong corroboration of the defendants' allegation that Bisraon Rai only had one son Nihal Rai from which the plaintiffs are descended and that Gendu Rai, from which the defendants are descended was not a brother of Nihal Rai but belonged to some other branch of the family.
27. The matter, however, does not rest there because in this pattidari statement the name of Bechu Rai appears as holding property bearing revenue of Rs. 146 odd. According to both pedigrees Bechu Rai was the son of Gendu Rai and Bechu Rai could not possibly have held this property if Gendu Rai and Nihal Rai were brothers and sons of Bisraon Rai. According to this statement Jhakri Rai and Bechu Rai between them hold property bearing a revenue of over Rs. 300 and this they could not have done if they were both the sons of Bisraon Rai because the latter only held property bearing a revenue of Rs. 162 odd which is shown opposite the name of Jhakri Rai. The fact that Bechu Rai holds property paying a revenue of Rs. 146 odd strongly suggests that he was not a son of Bisraon Rai.
28. According to the defendants' pedigree Jagrup Rai who is referred to in the decree of 8th August 1834 had one son Pahalwan Rai who had four sons one of whom was Dammal Rai. According to the defendants Gendu Rai was the son of Dimmal Rai and this allegation, as will be seen, is strongly corroborated by the entries in the pattidari statement previously referred to. From the decree of 8th August 1834 it will be seen that Jagrup Rai's share of property bore a Government revenue of Rs. 585 odd and this property, according to the defendants' pedigree, devolved entirely upon Pahalwan Rai and in due course upon his four sons. If the property was divided between the four sons equally each obtained property bearing a revenue of lis. 146 odd which is precisely the revenue shown to be paid by Bechu Rai, who was a grandson of Dammal Rai, and who took the whole of his share. This strongly suggests that Gendu Rai, Bechu Rai's father, was in Jagrup Rai's branch of the family and not in Sugriva Rai's branch of the family.
29. Further, the terms of the decree of 8th August read with the pattidari statement for 1841 establishes a number of other facts which go to prove the correctness of the defendants' pedigree. In the pattidari statement Aklu Rai is shown as holding property bearing a revenue of Rs. 197 odd and that was, as we have previously stated, the share of Hicha ai, his father, and the eldest son of Jit Rai. The shares of Aklu Rai and Jhakri Rai together bear a revenue of Rs 359 odd which totally exhausts, the share which devolved upon Jit Rai. In the pattidari statement Nanku Rai and Tulsi Rai between them are shown as holding land bearing a revenue of Rs 119 which was the revenue borne by the share given to the plaintiffs in the suit of the 8th August 1934. Nanku Rai and Tulsi Rai were the actual plaintiffs in that suit and between them they account for the whole share given to the branch of Gajraj Rai in the suit. Thus, it will be seen that the share of Tulsi Rai and Nanku Rai together with the share of Jhakri Rai and Aklu Rai completely accounts for the whole of the property held by Sugriva Rai and that therefore Bechu Rai and before him Gendu Rai could not possibly have belonged to this branch of the family. In the pattidari statement Padarath Rai is shown as holding property bearing a revenue of Rs. 146 odd which is the same revenue as that borne by the property held by Bechu Rai. According to the defendants' pedigree Padarath Rai is a representative of the eldest brother of Dammal Rai. Consequently his sole descendant would have held the same amount of property as that held by the sole descendant of Dammal Rai, viz. Bechu Rai.
30. Two other persons appear in this pattidari statement, viz. Bhirgu Rai and Bhuabal Rai, who together hold property bearing a revenue of Rs. 146 odd, that is the same revenue as borne by the properties held by Bechu Rai and Padarath Rai. From the defendants' pedigree it would appear that Bhirgu Rai and Bhuabal Rai were the descendants of Mano-rath Rai who was a brother of Dammal Rai and one of the four grandsons of Jagrup Rai. This appears to be so because the property they hold bears the same revenue as that borne by Bechu Rai and Padarath Rai who are the descendants of Manorath Rai's brothers. The last two names in the pattidari statement are Nir-khan Rai and Sbeodhan Rai and they between them also hold property bearing a revenue of Rs. 146 odd. According to the defendants' pedigree these persons are descendants of Kanhaiya Rai, the fourth grandson of Jagrup Rai and a brother of Manorath and Dammal Rai. The property which they hold, bearing as it does the same revenue as the properties held by Bechu Rai and the descendants of the other brothers, suggests strongly that the defendants pedigree is true. The total revenue borne by the property held by Bechu Rai, Padarath Rai, Birghu Rai, Bhuabal Rai, Nirkhan Rai and Sheodhan Rai amounts to Rs. 58o odd which, according to the decree of 8th August 1834, was the total revenue borne by the property which devolved on Jagrup Rai. This strongly suggests that Bechu Rai belonged to the branch of Jagrup Bai and not to the branch of Sugriva Rai and that therefore his father Gendu Rai could not possibly have been the son of Bisraon Rai and the brother of Nihal Rai as suggested by the plaintiffs. This decree together with the pattidari statement clearly establishes, in our judgment, that the plaintiffs' pedigree is not true, but that the defendants' pedigree is accurate and therefore that the defendants are more closely related to Gopal Rai and are his nearest heirs and entitled to succeed to his property.
31. The defendants also tendered in evidence a plaint in a pre-emption suit No. 414 of 1892 which is printed at p. 81 of the paper book. The plaintiffs in this case were the descendants of Nihal Rai and Jhakri Rai and attached to the plaint is a pedigree showing Jit Rai as a common ancestor and the descendants of his two sons Hicha Rai and Bisraon Rai. In this pedigree Bisraon Rai is shown as having only one son Nihal Rai and this, to some extent, supports the defendants' pedigree. However, in that particular case the branch of Gendu Rai was not concerned in the litigation and therefore it was not necessary to show whether or not Bisraon Rai had two sons even if in fact he did have a second son Gendu Rai. Another plaint was tendered by the defendants, viz., a plaint in a suit in the Court of the Munsif of Ghazipur which is printed at p. 87 of the paper book. In this case one of the plaintiffs was the father of the present plaintiffs and again there is a pedigree attached to the plaint showing the descendants of Jit Rai. In this pedigree also Bisraon Rai is shown as having only one son Nihal Rai and there is no reference to Gendu Rai anywhere in the pedigree. This to some extent supports the defendants' case, but again it must be pointed out that for the purposes of that suit it was unnecessary to show that Bisraon had a son other than Nihal Rai even if that were a fact. However, the absence of Gendu Rai and his descendants from these two pedigrees certainly does not help the plaintiff's case even if it is not of any material assistance to the defendants.
32. The plaintiffs have also contended in this appeal that the defendants are estopped from alleging that they are the nearest heirs of Gopal Rai deceased. It is urged that an order of the Subordinate Judge of Ghazipur dated 9th December 1919 had once and for all determined that the heirs of Gopal Rai deceased are the plaintiffs. That was an order passed inter partes and it is claimed that therefore the defendants are barred from, further agitating the matter. It appears that Gopal Rai was a panty suit No. 100 of 1917 which was decided against him and he appealed and became appellant in Appeal No. 2 of 1918. During the pendency of the appeal Gopal Rai died and application was made by a number of persons to be substituted as appellants in his place. Sheo Tahal Rai, the father of the plaintiffs, and the defendants made such an application and the matter was decided eventually by the learned Subordinate Judge of Ghazipur who held upon the evidence which had been adduced before him that Sheo Tahal Rai, the father of the present plaintiffs, was the nearest heir and ordered that his name be brought on the record in place of Gopal Rai deceased. This was a summary proceeding, but it has been urged before us that the decision of the learned Subordinate Judge concludes the matter and the question as to who is entitled to succeed Gopal. Rai deceased is now res judicata.
33. It is to be observed that counsel in the lower Court never claimed that this order operated by way of res judicata but merely urged that it had some evidentiary value in support of the plaintiffs' case. However, it is urged before us that this order does operate as a complete bar and wholly estops the defendants from setting up their present contention that they are in fact and in law the persons entitled to succeed to Gopal Rai. Counsel for the appellants relies upon the case of Raj Bahadur v. Narayan Prasad 1926 24 ALJ 546. In that case a Bench of this Court decided that where a party died during the pendency of a suit and the cause of action survived the Court was entitled to decide the question of the legal representative of the deceased without referring the parties to a separate suit and the decision was binding on the parties and would operate as res judicata. In that case reference is made to an earlier case of this Court, viz., Parsotam Rao v. Janki Rai (1905) 28 All 109, in which a contrary view is taken. The report, however, of this case does not clearly set out the facts, but the Court does appear to have held that a decision in a summary proceeding that certain persons are entitled to be substituted as personal representatives of a deceased party to a suit is not a final determination of the matter and does not constitute' a bar on the ground of res judicata. It will, therefore, be seen that the decisions of this Court upon the question are conflicting.
34. However, in Samsarivsa Sarvathi Palekhan v. M.K. Pathumma (1913) 20 IC 950 a Bench of the Madras High Court held that the question whether a person should be admitted as the legal representative of a deceased plaintiff to continue a suit cannot be regarded as one of the questions arising for the decision of the suit itself. That Bench expressly held that an order such as the order relied upon in this present case does not operate as a bar and does not amount to res judicata. A similar view has also been taken by the Judicial Commissioner's Court, Nagpur, in Mt. Laxmi v. Ganpat 1921 Nag 23. In that case Kotval, A. J. C, held that an order rejecting an application to be brought on the record as the legal representative of a deceased appellant is not a decree and does not constitute res judicata.
35. The same view has also been taken by a Bench of the Lahore High Court in Chiragdin v. Dilawar Khan 1934 Lah 465. In that case it is expressly laid down that where in a proceeding under Order 22, Rule 5 a person is or is not held to be the legal representative of a deceased party, the same question can be re-agitated in a separate suit, and is not barred by the rule of res judicata. From the above it will be seen that there is a preponderance of authority against the plaintiff's contention. The order of the learned Sessions Judge substituting Sheo Tahal Singh, the father of the present plaintiffs, in place of Gopal Rai was an order passed under Order 22, Rule 5, Civil P.C., and it was passed in the course of a suit which did not concern the property in dispute in this case. In our judgment such an order cannot possibly be held to debar the present defendants from alleging that they as the nearest heirs of Gopal Rai are entitled to (succeed to his property. The issue involved in the present case is a very different issue from that involved in the nummary inquiry into the question as to who should be substituted for Gopal Rai as appellant in the appeal during the pendency of which he died. The facts of the Allahabad case of Raj Bahadur v. Narayan Prasad 1926 24 ALJ 546, cited above which appears to favour the present plaintiff-respondents' view are very different from the facts of the present case. However, if it was intended to lay down in Raj Bahadur v. Narayan Prasad 24 ALJ 546, cited above that a decision in a summary inquiry under Order 22, Rule 5, Civil P.C., for ever barred any one again claiming property as the heir of the deceased party in the suit, then we respectfully dissent from it. In our judgment the view expressed in the earlier Allahabad case, viz. Parsotam Rao v. Janki Rai (1905) 28 All 109, previously cited, is to be preferred to the later case. The view that an order passed under Order 22, Rule 5, Civil P.C., does not operate as res judicata is supported by abundant authority in other High Courts and that being so we hold that the order passed in this case by the learned Subordinate Judge of Ghazipur, in appeal No. 2 of 1918, which is printed at p. 119 of the paper book, does not operate as a bar to the present contention of the defendants.
36. For the reasons which we have given above, we are satisfied that Gendu Rai was not a brother of Nihal Rai, and, therefore, that the plaintiffs were not related to Gopal Rai in the manner suggested by them. Further we are satisfied that Gendu Rai, the ancestor of Gopal Rai, deceased, belonged to an entirely different branch of the family which included the present appellants. In our judgment the learned Subordinate Judge was not justified in coming to the conclusion to which he did and that being so his decision cannot stand. In our judgment the defendants have established their right to this property, and that being so the plaintiffs have no claim whatsoever to it and their claim should have been dismissed.
37. In the result, therefore, we allow this appeal, and set aside the decree of the learned Subordinate Judge and dismiss the plaintiffs' claim. The appellants will have the costs of this appeal and their costs in the Court below.