1. In the suit out of which this appeal arises the plaintiffs sued for a declaration that the lands in suit appertained to a niskar which they possessed in the village Banki. The facts of the case shortly stated are these : The plaintiffs apparently had a niskar in the village Banki comprising 41 and odd bighas of land covered by a sanad in the name of their ancestor Shahib Ram. The lands in suit really form the site of what is called a gai'khai. The plaintiffs further stated that in the year 1903 the villagers of Banki and of other neighbouring villages complained against obstruction put by the plaintiffs on the water of that garkhai and the criminal Court took proceedings under Section 133, Criminal P.C. which resulted in an order against the plaintiffs. The plaintiffs, then brought a suit in the year 1904 for a declaration that the property was their niskar and that the defendants had no right of easement as claimed by them and as had been established in the proceedings under Section 133 Criminal P.C. The plaintiffs in that suit impleaded some of the representative tenants of the villages of which villagers claimed the right of easement in question. The proprietors of the village Banki who are the defendants in the present suit were not parties in that suit. Nor did they form members of the class which claimed the right of easement in the proceedings under Section 133 Criminal P.C. Now that suit was finally dismissed by the appellate Court on the 21st May 1906 by which the plaintiffs' claim to stop the villagers from claiming the easement which they had established in the criminal proceedings under Section 133 was disallowed. Therefore the result of that suit was that the villagers of Banki and the neighbouring villages were declared entitled to exercise the right of easement which they claimed when they asked for the removal of the obstruction put up by the plaintiffs. In the year 1919 the record of rights was published in which the lands together with the garkhai were recorded as appertaining to the mal lands of the village Banki. The plaintiffs brought the present suit basing their cause of action from the date of the final publication of the record of rights.
2. In the present case which is against the proprietors of Banki the plaintiffs ask for a declaration of their niskar right and also for confirmation of their possession in that right. The defendants, the proprietors of Banki claimed the lands, as recorded, as appertaining to their mehal Banki and also pleaded res judicata and limitation. The Court of first instance found all the issues in favour of the plaintiffs and made a decree in their favour. On appeal, however, by the defendants the lower appellate Court has found that the plaintiffs have established that the lands in dispute were the niskar lands of the plaintiffs appertaining to the niskar of 41 and odd bighas of land which they claimed under the sanad to which I have already relerred. The lower appellate Court affirmed the decree of the first Court with regard to Plot No. 2 but dismissed the plaintiffs' suit as regards Plot No. 1 on two grounds, namely that of res judicata and that of limitation.
3. The learned advocate who appears in support of this appeal by the plaintiffs contends that the decision of the previous suit instituted in 1904 which terminated by the judgment of the appellate Court dated the 21st May 1906 does not form a bar of res judicata.
4. The next ground that he takes is that the finding of the lower appellate Court that the suit was barred by limitation is erroneous. I think these contentions are well founded. Now as to the question of res judicata it appears to us that the judgment in the suit of 1904 is no bar to the present claim of the plaintiff for these reasons - that the suit was instituted by the plaintiffs primarily for a declaration that the defendant in that suit had not the right of easement claimed upon the property then in question. The parties to that suit were the villagers who claimed the right of easement upon this property. The landlords of the village Banki, were not parties. Nor did they in any sense claim the right which the defendants in that suit claimed. In fact the defendants in that suit alleged that the right of easement which they claimed was based upon a grant made by the proprietors of the village Banki. Therefore it appears from the circumstances that the title which the defendants in that suit set up was not any title in themselves but title in the zemindars of the village Banki, who were no parties to that suit. Really that suit was dismissed on the ground, that it was established to the satisfaction of the Court that the villagers were entitled to the right of easement claimed by them. From the facts which I have already stated it is quite clear that there was no determination of any question of title to this property as between the plaintiff's and the others claiming the proprietary right in the village Banki in their zemindari right. The decision in that suit, therefore, cannot operate as res judicata on the question as to whether the property appertains to the plaintiffs or to the proprietors of the village Banki.
5. As to the second question it appears to us that the property in question is a piece of land covered with water. The user which the defendants in that suit set up was the occasional user of the water in the exercise of their right of easement. The learned Subordinate Judge found that the plaintiffs also possessed the land as did the other members of the public. But the other members of the public exercised only the right of easement and nothing more. The proprietor of a piece of land over which the members of the public exercise a right of easement does not lose his right to the land as proprietor of the land on account of the occasional user for the purpose of exercising the right of easement. Considering the nature of the property and the nature of the user possible of such property we think the findings of the learned Subordinate Judge do not amount to any finding that the plaintiff's who are the owners of the property were excluded from the user of the land in their proprietary right. In a case like this the possession of the parties would really be determined by the question of title. As I have already stated the land in suit is covered with water. That being so we think the finding of the learned Subordinate Judge is not sufficient for the purpose of holding that the plaintiff's suit was barred by limitation. For these reasons we think the judgment and decree of the learned Subordinate Judge ought to be set aside and the judgment and decree of the Court of first instance ought to be restored with costs of this appeal and of the appeal before the Subordinate Judge.
6. I agree.