1. This appeal arises out of a suit for recovery of possession of certain land. The plaintiff claims as the widow of one Ali Mahomed, who, it is said, obtained the property in suit under a hebanama and an arpanama executed in 1216 Maghi (corresponding to 1858) from one Dewan Ali.
2. The defendants claimed as the heirs of Dewan Ali.
3. The Court of first instance decreed the plaintiff's suit in toto.
4. The lower appellate Court has modified that decree and given the plaintiff a decree for all the lands in suit, save and except plots Nos. 1867 and 1933.
5. The defendants Nos. 1 to 5 have appealed to this Court, and the plaintiff has filed cross-objections. On behalf of the defendants-appellants, two points have been urged. In the first place, it is contended that the finding of the Courts below as to the genuineness of the deed of gift and the arpanama is not sufficient to confer on the plaintiff's husband a valid title to the property and that the Courts below should have gone further and found that the gift was followed by delivery of possession. This point was not raised in the written statement, nor was any issue framed upon it. No evidence was adduced by either of the parties with regard to it, and the Courts below have not expressed any opinion on the point. We are of opinion that this point cannot be allowed to be raised for the first time at this stage. Moreover, both the Courts below have come to the conclusion that the plaintiff's husband had been in adverse possession for a long time, so as to confer a statutory title.
6. The next point taken is that in the previous suit which the landlord brought against the present plaintiffs and the defendants, the Court held that the present plaintiffs had no interest in the property and that such finding operates as res judicata against the plaintiffs in the present suit. We are of opinion that this contention is not sustainable. The real question for determination in that suit was whether the landlords were entitled to recover the rent from all the defendants or from some of the defendants only. The Court held that the plaintiffs had failed to prove that they were entitled to recover the rent from the defendants Nos. 9 to 11, that is to say, the present plaintiffs. That findings cannot preclude them from establishing their title to the property as against the defendants in the previous suit, if they have any title. See the cases of Magniram v. Mehdi Hossein 31 C. 95 : 8 C.W.N. 30; Gurdeo Singh v. Chandrika Singh 36 C. 193 : 1 Ind. Cas. 913 and Raj Narain v. Khobdari Rai 5 C.W.N. 724.
7. The decision of the lower appellate Court is, therefore, affirmed and this appeal dismissed with costs.
8. The cross-objections have not been pressed.