Macpherson and Stevens, JJ.
1. The facts of this case are fully and clearly stated in the judgment appealed from and need not be repeated. The question argued before us is purely one of law.
2. Shortly stated the case stands thus. In 1883 the appellants brought a suit against the respondent to recover certain land, including the plots A, B and C, which form part of the land now in dispute. They obtained a decree for some of the land exclusive of those plots in May 1884. They executed the decree, and in execution they took possession, with the aid of the Court, and without any objection on the part of the respondent, of the plots A, B and C, which, as already stated, were not part of the land decreed, and omitted to take possession of a part of the land which was decreed. About a year after that the respondent dispossessed them of the whole of the land, of which they had taken possession, and the present suit is brought by the appellants to recover it.
3. The question is whether the appellants can recover the plots A, B and C, which they unsuccessfully claimed in the previous suit, although with the aid of the Court they took possession of them in execution of the decree in that suit without any objection on the part of the respondent. The appellants' title to the land is found to be proved, but we consider that they cannot now rely on their original title, it being shown that their claim with regard to those plots was rejected in the suit of 1883. It they have any title at all, it is a title which must, in some way, have been since acquired.
4. The respondent says that Section 13 debars the appellants from claiming those plots, which they unsuccessfully claimed in the suit of 1883. The appellants say that the respondent is estopped by Section 244 from saying that this land is not part of the land decreed in that suit. Obviously it seems that the respondent's contention must succeed unless that of the appellants prevails.
5. Conceding that Section 244 would debar the respondent from bringing a suit to recover this land, on the ground that, although it was not part of the land decreed in the suit of 1883, the appellants wrongfully took possession of it with the aid of the Court in execution of that decree, is there anything in that section which would debar the respondent who has recovered possession from raising such a question in a suit brought against her by the appellants? The scope and effect of the section was considered in the case of Bhiram Ali Shaik Shikdar v. Gopi Kanth Shaha (1897) I.L.R., 24 Cal., 355. The view taken of it then was that, although it barred a suit brought for the determination of any of the questions referred to in it, it did not bar the trial of any issue involved in those questions, if the issue was raised at the instance of the defendant in a suit brought against him; and it was pointed out that Section 244 differed from Section 13 in this respect that the latter section barred not only the trial of a suit or issue, where the suit or issue had been previously heard and determined, but also the trial of an issue which should have been raised in a previous suit by either party. It is clear that the question now raised was not raised and determined under Section 244; and we think that, although the facts of the case which we have cited were different from the facts of the present case, the view which was taken of Section 244 is correct. In our opinion the question not having been raised and determined under Section 244, the defendant is not now debarred from contending that the plots claimed were not covered by the decree in the suit of 1883. The case is a hard one, as the action of the plaintiffs throughout has been straightforward and bonafide. On the other hand, although the respondent ought to have looked after her own interests in the execution proceedings, and although a servant of hers was present when possession was given to the appellants, the Subordinate Judge finds that there was nothing to indicate to that servant, who represented the respondent, that the appellants were taking possession of land which was not covered by the decree. It seems also that in a subsequent suit the appellants claimed mesne profits on account of these plots, but the Court refused to allow it on the ground that the land was not part of the land decreed.
6. The decision of the Subordinate Judge, therefore, seems to us correct, and we accordingly dismiss this appeal with costs.