Francis W. Maclean, C.J.
1. The real question in this suit is a question of boundaries. The question was whether the land in dispute appertained to the plaintiff's mehal or to the defendants' jaigir taluk. The learned Subordinate Judge dismissed the suit, and the District Judge has decreed it. The question of boundaries is generally a question of fact. But it is urged for the' appellants, the defendants who have appealed, that in arriving at his conclusion, the learned Judge has fallen into certain errors of law If they can establish that, there may be grounds for setting aside the decree.
2. It appears that there was a decree in a previous suit, No. 90 of 1865 of the Munsif of Naraingunge, in which it is said that a certain thak map, to which I shall have occasion to refer more minutely in a moment, was directed to be amended, I ought to have stated that the plaintiff is an auction purchaser at a sale for arrears of revenue of taluk No. 6047 held on the 26th of March 1901, and the object of the suit is to recover possession of the land which he so purchased. The respondents contend that that decree is not binding upon the plaintiff. He was no party to the suit nor was his predecessor in title a party to the suit. No doubt, the defaulting proprietor, who failed to pay the revenue, was a party to the suit: but the plaintiff' does not claim title through him but claims under a paramount title. The contention of the appellants is that that decree must be treated as res judicata against the plaintiff, but I do not think that argument can properly prevail; neither the plaintiff nor his predecessor in title was a party to that suit: it cannot therefore constitute res judicata as against the plaintiff.
3. If authority be required, I may refer to Moonshee Buslool Rahman v. Pran Dhun Dutl (1867) 8 W.R. 222 and Radha Gobind Koer v. Rakhal Has Mukherji (1885) I.L.R. 12 Calc. 82, 90. Those cases are authorities for the proposition that the decree in the previous suit is not binding upon the plaintiff. The case in 8 Weekly Reporter has stood the test of forty years, and that in 12 Calcutta of twenty years. No doubt there is an obiter dictum in the case of Boykunt Nath Chatterjee v. Amecroonissa Khatoon (1865) 2 W.R. 191 and in the case of Tara Pershad Mitter v. Ram Nursingh Mitter (1870) 14 W.R. 288 which may be taken as supporting a contrary view; but it is worthy of comment that one of the learned Judges who was a party to the decision in 14 W.R. p. 283 was a party to the previous decision in 8 Weekly Reporter 222. For these reasons, the earlier decree is not binding upon the plaintiff.
4. The next point is that the lower Appellate Court in coming to its decision relied almost exclusively upon the thak map of 1858. The Subordinate Judge says that it is admitted that the land in suit was surveyed by the thak measurement in 1858 as appertaining to the plaintiff's taluk, and, the revenue survey which followed in 1859 is also to that effect. But it is now urged that the lower Appellate Court was not justified in relying, as it did, upon the thak map, because in the previous suit No. 90 of 1865 there was a direction that the thak map should be amended. That was in 1865. The judgment now appealed against was given in 1905, forty years afterwards, and in the meantime the map was not amended. The only map which was before the lower Appellate Court was the map in its original form. The Court could only deal with the map as it found it. It seems tome, therefore, that the second point fails.
5. Then we come to the third point. The lower Appellate Court finds that 'the presumption, as is admitted to have been settled by the rulings; is that the land has formed part of this taluk from the time of the Permanent Settlement.' It has not been, challenged, that there is that presumption. But it is urged by the appellants that that presumption has been rebutted by reason of the fact that the defendants have been in possession of the land' in dispute for a large number of years. But there is no finding, to that effect. On the contrary, the finding is that the lands of which the defendants were in possession are not identified with, the lands now in dispute. This disposes of that point.
6. There is one other point. It is urged that the Judge erred in saying that the decree in suit No. 90 of 1865 was 'no evidence against the plaintiff.' I think he only meant by that it was no evidence in the sense in which it was desired to be used in evidence. Decrees not inter partes may be used as evidence for certain purposes; and, I do not think that the learned Judge by this observation meant to contravene any such ruling.
7. I may point out that the final conclusion of the learned Judge is this: 'I hold therefore that the defendants have not been able to prove that the previous suit related to the land in suit in this. case, or, secondly, that this land, 180 bighas, is or can possibly be apart of the 39 bighas which they got settlement of, and that decree was a right one.'
8. On these grounds, I think the appeal fails and must be dismissed with costs.
9. I agree.