1. This appeal arises out of a suit for declaration of plaintiffs' title to and recovery of possession of some plots of land on the allegation that the land in Schedule I which comprises four plots was held by the plaintiff as part of a permanent tenure under defendant 1 and that the land in Sch. 2 which comprises 2 dags was held as a Brohmottar in defendant l's zemindary. The defence was that the plaintiff had no title to the lands in suit and the lands appertained to the zemindari of defendant 1 and that the suit was also barred by res judicata, there having been two suits in the year 1913 being Suits Nos. 2503 and 2504 where it had been held that the plaintiff had no permanent tenure or Lakheraj as alleged now. The first Court gave a decree to the plaintiff. This decision on appeal was reversed by the lower appellate Court, the learned Subordinate Judge holding that the suit was barred by res judicata and also that the plaintiff had no title and had never been in possession of the lands at any time within twelve years of the suit. The plaintiff has appealed to this Court.
2. The first contention on behalf of the appellat before us was that the learned Subordinate Judge was wrong on the res judicata point. It was said that the plots of land in the litigation of 1913 were not the same as those in the present suit and that the Court that had tried the suits in 1913 had no jurisdiction to try the present suit and therefore was not a competent Court. It is true that the plots of land in the two-litigations are not the same, but in the previous suit one substantial point that arose and that was decided was whether the plaintiff had any permanent tenure or Lakheraj to which he alleged the plots in question in that litigation appertained and it is on the same allegation, namely, that the plots in question in the present suit appertained to the same permanent tenure or Lakheraj that the present suit for title and possession was instituted. In these circumstances it is immaterial for res judicata purpose that the plots of land in the present suit were not identical with the plots in the previous suit. Then as regards the other point in connection with the res judicata question it was said that the Court which decided the suit in 1913 had no jurisdiction to try the present suit, inasmuch as the value of the property in the present suit was over Rs. 1000 which was beyond the pecuniary jurisdiction of the Munsiff who heard the 1913 suits. Having regard to the words 'competent to try the subsequent suit' as they are to be found in Section 11, Civil P. C, one would be inclined to think that this contention is not without some substance. But in more than one decision, among which I may mention Gopi Nath v. Bhugwat Pershad (1884) 10 Cal 697 there has been a judicial interpretation of the expression 'competent to try the subsequent suit' as it is to be found in Section 11 and that interpretation is 'competent to try the subsequent suit if brought at the time the first suit was brought.' It is no doubt true that the lands in the present litigation have been valued at a figure more than Rs. 1,000. But the land in the previous litigation had been valued only at Rs. 550 and the learned Subordinate Judge found that the area of the lands in the previous suit was more than 3 aras whereas the area of the lands in the present suit is less than 3 aras and the quality of the lands in the two suits is not different.
3. The decision in the 1913 litigation therefore in my opinion did operate as res judicata in the present suit.
4. On the question of title also the lower appellate Court held against the plaintiff and in my judgment held so rightly. To establish his title to the lands the (plaintiff filed some documents, Exs. 5, 6, 7 to 7g and 19. The lower appellate Court could place no reliance on these documents. It is true that the learned Subordinate Judge in rejecting those documents gave no independent reason of his own for doing so and only mentioned the fact that they had been disbelieved by the two Courts in the 1913 litigation. But he evidently accepted the same view as regards these papers and himself held that no reliance could be placed on them. The plaintiff no doubt had the entry in the finally published Record of Rights in his favour. But the entry in the Record of Rights together with the proceedings before the revenue officer as evidenced by Ex. 8 would show that the only foundation of the entry was some Dakhilas. If that foundation is found to be rotten, the presumption arising from the Record of Rights would be more than rebutted. In the present case that foundation has been found to be rotten. The Courts in the litigation of 1913 has found that foundation, namely the Dakhilas, to be not genuine and that view has been accepted by the learned Subordinate Judge in the present case.
5. On the question of possession also the plaintiff's case was bound to fail. The lower appellate Court has found as a fact that the plaintiff was never in possession of the lands at any time within 12 years of the institution of the suit. This finding was assailed before us on the ground that the learned Subordinate Judge in coming to this finding had overlooked the entry in the Record of Rights. A perusal of the judgment of the lower appellate Court would not however bear out this contention. The learned Subordinate Judge in considering the evidence of possession clearly mentioned that the disputed lands had been entered in the name of the plaintiff. The plaintiffs' ease was in my judgment, fit to be dismissed, on more than one ground. The appeal is therefore dismissed with costs.
6. I agree.