1. The plaintiff was away from home for a number of years and during his absence his son defendant No. 5 managed his properties.
2. The plaintiff had a nimhowla within a certain osat taluk which was sold for arrears of rent. The purchaser served notices under Section 167 of the Bengal Tenancy Act upon under-tenants and then sold the osat taluk to defendant No. 1. Defendant No. 1 brought a suit for khas possession against defendant No. 5 as the son and heir of the plaintiff described as dead and got a decree in a contested suit.
3. The plaintiff on return from pilgrimage brought the suit giving rise to this appeal for a declaration that he was not bound by the decree against defendant No. 5 and for recovery of possession. Both the Courts below decreed the suit of the plaintiff and defendant No. 1 appeals. It has so happened that pending the appeal the plaintiff died leaving defendant No. 5 as his sole heir and the contest is now between defendant No. 1 as the appellant and defendant No. 5 as the respondent.
4. It is urged before us that the decree for khas possession obtained by defendant No. 1 against defendant No. 5 in the previous suit is absolutely binding between-the parties and defendant No. 5 cannot fall back upon the decree obtained by his father. The decision of this point depends upon whether defendant No. 5 litigates under the same title in the two cases. He was sued in the previous case as the heir of the plaintiff which he was not at the time and he comes in now as the heir of the plaintiff which he now is. Defendant No. 5 is not litigating under the same title in the two cases and it cannot be said that the matter is resudicata. We do not see how otherwise the decree can be absolutely binding. As the consideration of the facts subsequent to suit cannot help the appellant, it is not necessary to consider whether they should be considered in this case.
5. The appeal is dismissed with costs.