B.K. Mukherjea, J.
1. The facts giving rise to this appeal may be shortly stated as follows. There was a revenue paying estate bearing touzi No. 302 of the Tippera Collectorate consisting of a two-annas and 8 1/2 gds. share of certain zemindary properties which belonged to two persons Krishna Kishore and Surendra Narain Rai Choudhuri. Krishna Kiahore had a 15 gds. share in it which he inherited from his adoptive father Sambhu and the balance amounting to one-anna 13 1/2 gds. share belonged to Surendra. On 18th Magh 1289 B.S., Krishna Kishore granted a patni in respect of certain lands which included the lands in suit to one Rajjab, predecessor of the defendants first party. In 1293, a suit was threatened against Krishna Kishore by one Saroda who challenged the validity of the adoption of the former and claimed the entire estate as legal heir of Sambhu. To purchase peace the parties entered into a compromise and by an ekrarnama which is Ex. B in this case it was agreed by and between the parties that Saroda would get a 5/16th share out of the 15 gds. belonging to Krishna Kishore and the remaining 11/16ths share would remain vested in the latter. Subsequently there was a re-transfer of one anna share by Saroda to Krishna Kishore and the result was that Krishna Kishore had 12 annas share in the Hissya while the remaining four annas belonged to Saroda. The present plaintiff purports to have acquired 1 gd. and odd share within the four annas share of Saroda. Sometime before 1924 there was a proceeding under the Estates Partition Act with regard to this Touzi and the lands in suit which were comprised in the putni of the first party defendants were allotted to the present plaintiff in his Sahara by the partition authorities. The second party defendants were raiyats holding these lands under the putnidars.
2. The plaintiffs' case is that, after they got possession of their allotted share on 23rd May 1924, they sued the second party defendants for rents for the years 1331 to 1334 and recovered a decree. They also allege to have realized rants amicably from the tenants for the years 1335 to 1337 and again got a decree for rents for the years 1338 to 1341. In 1343 B.S. the first party defendants instituted a suit for rent against the defendants second party claiming rent' for the year 1342 and a portion of 1343 and the tenants deposited the rent under Section 149, Ben. Ten. Act, and got notice served upon the plaintiffs under that Section. Upon that the plaintiffs have commenced the present suit and have prayed for an injunction restraining the defendants first party from withdrawing the rent deposited by the tenants defendants. They also prayed that the amount deposited might be paid over to them. Their case was that the putni having been granted by Krishna Kishore alone to which Saroda was not party it would attach to the lands which were allotted to Krishna Kishore in the partition proceedings under Section 99, Estates Partition Act. The plaintiffs who derive their title from Saroda would take their Saham free and clear of this intermediate tenancy.
3. The Munsif who tried the suit was of opinion that the putni was binding on Saroda as he derived his interests from Krishna Kishore after the latter had grant. ed the putni and the plaintiffs who were purchasers from Krishna Kishore were also bound to recognize the same. He held, however, that the plaintiffs were realizing rents payable by the tenant defendant to the exclusion of the putnidars for a period of more than 12 years from the time when they got possession of the suit lands in the year 1924 and thus acquired a good title to the rent payable by the defendants second party on the ground of adverse possession. In this view of the case the plaintiffs' suit was decreed and they were held entitled to withdraw the amount that was deposited as rent by the defendants second party. On appeal by the first party defendants this decision was reversed and the plaintiffs' suit was dismissed. It is against this decree that the present second appeal has been preferred.
4. Three points have been taken by Mr. Choudhury who appears in support of this appeal. He has argued, in the first place, that the putni was not binding on Saroda or on the present plaintiffs as Saroda did not derive his title from Krishna Kishore. The second point taken is that the defence of defendants first party is barred by the doctrine of res judicata, the same point having been raised and negatived in a previous rent suit between the parties. The third ground made is that, at any rate, the plaintiffs must be deemed to have acquired a good title by adverse possession. The first point raised by Mr. Choudhury does not appear to me to be of much substance. The ekrarnama, Ex. B, was executed between the parties to settle all disputes and the consideration was that Krishna Kishore would give up his five annas share in the Hissya in favour of Saroda. It was stated clearly in the ekrarnama that all rents and dues payable in respect of the entire Hissya up to the year 1292 B.S. would belong to Krishna Kishore. The solenamah, there-fore, amounted really to a transfer of a five-sixteenths share in the Hissya by Krishna Kishore to Saroda and Saroda took that interest in the state as it existed in the year 1293 B.S. I am not satisfied that the rights of Saroda were not created by this ekrarnama but had their existence independently of it which the ekrarnama merely recognized. Saroda, in my opinion, must be deemed to be a person who derived his title from Krishna Kishore and as the plaintiffs are the purchasers from Saroda they are also in no better position. It has been found by both the Courts below, and this appears also from the settlement records that both Saroda and his heirs recognized the putni of the defendants first party ever since 1293 B.S. The first contention of Mr. Choudhury must, therefore, be overruled.
5. As regards the question of res judicata, it appears that in a previous rent suit which was instituted by the plaintiffs against the defendants second party the defendants first party were made pro forma defendants. It appears also that they raised the identical question which they are now raising namely that the putni was binding on Saroda and also upon the plaintiffs, and consequently, they were not entitled to realize rents directly from the cultivating tenants. This contention was upheld by the trial Judge but negatived by the lower Appellate Court. Then there was a second appeal to this Court which was dismissed. Mullick J. who decided the appeal observed in the end of his judgment as follows:
In view, however, of the fact that there are some indications to show that there may be some evidence available to the appellant on the point, I would dismiss the appeal with costs with this observation that this decision will not operate as res judicata on any question o title in any future litigation between the parties.
6. Mr. Choudhury contends that as this Court dismissed the appeal preferred by one of the putnidar defendants, the observation made by the learned Judge at the end of the judgment would not preclude the plaintiffs from raising or the Court from considering any plea of res judicata if that is available to the plaintiffs and in support of his argument he has relied upon certain decisions of the Judicial Committee: viz. Watson v. Collector of Rajshahaye (1869) 13 M.I.A. 160, Fateh Singh v. Jagannath Bksh Singh , which were followed by Khundkar J. in a later decision which is to be found reported in Fakir Chandra v. Ekkari Sarkar (1938) 42 C.W.N. 560. In the first of these two cases the Judicial Committee pointed out that after a Court has dismissed the suit it was no longer within its power to pass an order allowing the plaintiff an opportunity to institute another suit upon the same cause of action. This power could be exercised, if at all, only under the circumstances mentioned in the Code of Civil P.C., and without dismissing the suit. It means therefore that if the suit is actually dismissed, the legal consequences that follow from the order of dismissal cannot be avoided or curtailed in any way by any observation which the Court might make in the order of dismissal.
7. In the present case, the order of dismissal which was passed by Mullick J. had the effect of confirming the rent decree obtained by the plaintiffs against the tenants defendants. These rights, undoubtedly, could not be cut down or prejudiced in any way by any observation contained in the judgment, but as this was a rent suit it was not absolutely necessary to decide the question of title as between the plaintiffs on the one hand and the pro forma defendants on the other in order to give the plaintiffs any relief against the tenants. The observation mentioned above, in my opinion, therefore indicates clearly that this Court did not intend to decide the question of title finally. In other words, the rent decree was made operative between the plaintiffs and the tenant defendants with regard to the period in suit leaving the question of title between the plaintiffs and the pro forma defendants open. In this view of the case the plea of res judicata which has been raised by the plaintiffs must fail.
8. The only other point that requires deter-mination is the question of adverse possession and here I do not think that the decision of the lower Appellate Court was wrong. It may be that the plaintiffs have realized rents amicably for the period 1335 to 1337 B.S. and I am not inclined to place much reliance upon the rent decree which the defendant first party got against the defendants second party subsequently. But I think however that as in this case the land was in possession of the tenants, in order that there may be adverse possession against the rival landlords, the plaintiffs must show that they have intercepted rents payable by the tenants to the defendants first party for a period of 12 years prior to the institution of the suit. The first hostile act, if I may say so, was not commenced earlier than the year 1928 when the plaintiffs instituted a rent suit claiming rents for the years 1331 to 1334 B.S. Even if limitation runs in favour of the plaintiffs from the year 1928, the present suit would be well within 12 years from that date. The result is therefore that all the points raised by Mr. Choudhury fail and this appeal is dismissed. I make no order as to costs.