1. The plaintiff in this case brought a suit in 1896 for recovery of possession of a certain share in a jote which had belonged to one Dil Mahomed on the ground that she had purchased the share from certain heirs of Dil Mahomed. The present defendant-appellant was the second defendant in that suit. It is not clear from the plaint itself in what capacity he was made a defendant. But the Court of first instance in the present proceeding holds that it was in consequence of his having purchased a part of the land from brother of Dil Mahomed. The Munsif says--' In the suit of 1896, it will be seen, Fazar was a party. But that is because it is urged he was in possession of one plot which he had purchased from Nazir (brother of Dil Mahomed) so far back as 1892. Plaintiffs case is that save and except that plot, Fazar was not in possession of any other plot of the jote previous to the dispossession which is the basis of this suit.' The suit of 1896, was decreed in the plaintiffs' favour and the plaintiffs obtained possession of the share in suit against all the defendants. Subsequently, she executed her decree for costs and in that execution sold the remaining share of the jote and obtained possession of that also. She now sues for khas-possession of the whole jote on the ground that she has been dispossessed by the defendants. The Munsif found that the plaintiff was entitled to rent but refused her prayer for khas-possession on the ground that the defendant Fazar was entitled to actual possession as tenant under Dil Mahomed.
2. On appeal the learned Sub-Judge held that this question of khas-possession was res judicata on the ground that the plaintiff had obtained a decree for possession against the present defendants and had also obtained delivery of possession against them in the former suit.
3. It appears to me that this view cannot be supported. In the former suit the plaintiff sued for a declaration of her title to the jote left by Dil Mahomed and for, possession thereof. The words 'khas-possession' were not used, though I lay no stress on that point. But I am not prepared to say that in a suit of that nature a defendant who was made a party on the ground that he had purchased a portion of the tenancy in suit, was bound to put forward, as a ground for defence, any under-tenancy which he might have. Even if he had put forward and proved that under-tenancy, still the plaintiff's suit for declaration of her interest in the superior tenancy and for possession of that superior interest would none the less have, been decreed. So far, therefore, as the 11-annas share is concerned, I do not think that the decree in the former suit precludes the present defendant-appellant from pleading any under-tenancy which he may have.
4. As regards the delivery of possession of that 11-annas and the subsequent sale of the remaining 5-annas the writs of delivery of possession and the sale certificate show that the property sold was the interest of the defendants in the jote or the superior tenancy of Dil Mahomed; and an under-tenancy under that jote would not be an interest in the jote and would not, I think, pass under, either the writ of delivery of possession or the sale certificate. Accordingly, 1 think that the view of the learned Subordinate Judge that the defendant is precluded from pleading his under-tenancy by the rule of res judicata cannot be supported. The case must go back to him for final disposal after deciding whether the defendant-appellant hast he under-raiyati, which he pleads, in the jote and whether the existence of that under raiyati if it is formed to exist, precludes the plaintiff from obtaining khas-possession. Costs to abide the result.