1. This appeal arises out of a suit in ejectment. The plaintiff's case was that the land originally belonged to the Jote of one Hara Chandra Hatui. The defendant denied the plaintiff's title and also set up his own Lakheraj right to 2 bighas out of the 3 bighas of the land in suit. In the Court of first instance the plaintiff obtained a decree. This decree was reversed by the lower Appellate Court on the finding that the plaintiff had failed to establish his title. The lower Appellate Court also apparently found the Lakheraj title of the defendant to 2 bighas out of the 3 bighas established. Before us it is contended that the issue whether the land in suit was originally the Jote of Hara Chandra Hatui is res judicata between the parties.
2. It appears that in 1907 the plaintiff sued the father of the present defendant for rent of the land in suit and that this suit' was dismissed on the finding that though this land was a Jote of Hara Chandra Hatui, the relationship of landlord and tenant did not exist between the plaintiff and the defendant's father. In another rent suit in 1913 which was brought against the defendant No. 1 himself, the plea that the land was Lakheraj was first set up. That rent suit was also dismissed on the finding that the relationship of landlord and tenant did not exist and it was also found that the defendant had failed to prove his Lakheraj title. In our opinion this appeal is concluded by the finding of the lower Appellate Court that the land in suit has not been proved to appertain to the holding of Hara Chandra Hatui. On this finding it is immaterial whether the defendant has succeed, ed in proving his Lakheraj title or not. It was for the plaintiff to prove his title and he having failed in that, his suit in ejectment must fail. The decision in the previous rent suits both of which were dismissed cannot, in our opinion, be held to operated res judicata in respect of findings which were not the basis of the decrees but in spite of which the decrees were passed. This is clear from the decision of the Privy Council in the case of Bun Bahadur Singh v. Lucho Koer 11 c. 301 at. p. 306 : 12 I.A. 23 : 4 Sar. P.C.J. 602 : 9 Ind. Jur. 202 : 5 Ind. Dec. (N.S.) 960 (P.C.) and also the oases of Nundo Lull Bhuttacharjee v. Bidhoo Mookhy Debee 13 C. 17 : 6 Ind. Dec. (N.S.) 508 and Thakur Magundeo v. Thakur Mahadeo Singh 18 C. 647 : 9 Ind. Dec. (N.S.) 432.
3. It is contended that at least the plaintiff should have been granted a decree in respect of the one bigha of land which is not claimed by the defendant, but on the findings of the lower Appellate Court the plaintiff has entirely failed to prove his title to the land in suit and without proof of title he cannot get a decree for any portion of the land.
4. The defendant has taken objection to the decree of the lower Appellate Court on the ground that it is not in accordance with the judgment: admittedly there is an obvious mistake in the amount of costs allowed to the appellant. In the table at the end of the decree the appellant's costs are shown to be Rs. 30 but in the body of the decree the costs allowed were Rs. 8-13 0 only.
5. We dismiss the appeal and allow the cross-objection. Rs. 30 will be allowed as costs to the present respondent, the appellant before the lower Appellate Court, instead of Rs. 8-13-0. In all other respects the decree of the lower Appellate Court will stand confirmed: The respondent will get his costs from the appellant in this Court both in the appeal and the cross-objection but in the cross-objection there will be no separate hearing fee.