1. This appeal arises out of a suit for establishment of the right of the plaintiffs to and recovery of possession of two taluks and five jotes as reversionary heirs of two ladies, Bhabani and Padmamani. The defendants are the lessees under the widows, who are now dead.
2. It appears that the plaintiffs' father Prasanna executed a mortgage in respect of the taluks and the jotes, in favour of one Raj Kumar, the defendants' father, on the 12th November 1880, evidently treating the properties as belonging to him alone. Three ladies of the family (including the two named above) however got their names registered, each in respect of her 4 annas share as heirs by right of succession to the last five owners respectively in 1882. In 1883 Raj Kumar, the mortgagee, obtained a lease from the three ladies in respect of 12 annas share in the name of his grandson Basanta. In 1891 Raj Kumar brought a suit for foreclosure upon the mortgage, which resulted in a compromise. It was agreed that there would be a decree for foreclosure in respect of 6 annas against Prasanna, but that the mortgagee would grant a lease thereof to him, that Basanta would surrender the lease, which he had obtained from the three ladies and that Prasanna would be the lessee under Raj Kumar. A decree was made accordingly. The lease taken by Basanta from the ladies was surrendered by him notwithstanding objections raised by the ladies.
3. In 1903, a suit was instituted by the plaintiffs against the defendants (the two ladies being joined as parties defendants) for recovery of the leasehold interest, in respects of which the plaintiffs had been dispossessed by the defendants in 1895. There were certain other properties included in that suit, which were not the subject-matter of the compromise.
4. In that suit the plaintiffs alleged that the widows Bhabani and Padmamani did not inherit the shares from the last full owner. The suit was decreed in part by the Subordinate Judge but the decree was reversed by the District Judge who held that the dispossession had taken place in 1883, when the lease was granted and that the suit therefore, was barred by limitation. There was a second appeal to this Court and it who disposed of on the ground that the plaintiffs' suit was barred by limitation as the plaintiff's possession within 12 years was not proved.
5. Bhabani and Padmamani having died within 12 years of the suit, the plaintiffs instituted this suit for recovery of possession of the properties on the allegations that those ladies held only the estate of a Hindu widow and that the alienation in favour of the defendants was fraudulent and not for legal necessity and, therefore, not binding upon the plaintiffs. The main defence was that the decision in the suit of 1903 operated as res judicata, and that the plaintiffs were estopped from making the allegation which was made in the plaint in the present suit and which was contrary to the statements made in the previous suit of 1903. The defendants also pleaded that there was legal necessity for the leases which were executed by the ladies.
6. The Court of first instance held that the decision in the suit of 1903 did not operate as res judicata, nor were the plaintiffs estopped and that legal necessity was not proved. That Court accordingly held that the plaintiffs were entitled to succeed in respect of the two taluks, but not with respect to the five jotes, as the properties had not been sufficiently specified in the plaint nor were the plaintiffs entitled to claim mesne profits.
7. On appeal, the learned Subordinate Judge held that the decision in the suit of 1903 operated as res judicata and that the plaintiffs could not be allowed to take up inconsistent positions and were precluded by the principle of estoppel. In the result the suit was dismissed.
8. The plaintiffs have appealed to this Court.
9. The first question raised is whether the decision in the suit of 1903 operates as res judicata.
10. It is contended by the learned pleader for the appellants that in the lower appellate Court there was no decision on the question of adverse possession on behalf of the ladies. But assuming that there was the next contention is that having regard to the judgment of the High Court which proceeded merely upon the finding that the plaintiffs were not in possession within 12 years, the question of title based upon adverse possession could not be held to have been heard and finally derided by the High Court.
11. We think that this contention is correct.
12. Assuming that the learned District Judge had found that the ladies were in adverse possession, that was not the ground upon which the High Court proceeded to dispose of the case. The decision of the lower appellate Court became sub judice, a second appeal having been preferred to this Court; and this Court as stated above, did not express any opinion upon the question of adverse possession. The principle is enunciated is several cases and we need only refer to some of them.
13. In the case of Chunder Coomar Mitter v. Sib Sundari Dassee  8 Cal. 631, it was pointed out, that ''when the decision of a lower Court is appealed to a superior tribunal and that tribunal for any reason does not think fit to decide the matter, it is left an open question. We have held so here over and over again, and it is not because in point of form the appeal in the first suit was dismissed, that the decision of the Munsif can be considered as confirmed.'
14. In the case of Sheosagar Singh v. Sitaram Singh  24 Cal. 616, the Judicial Committee observed as follows: 'To support a plea of res judicata it is not enough that the parties are the same and that the same matter is in issue. The matter must have been beard and finally decided. If there had been no appeal in the first suit, the decision of the Subordinate Judge would no doubt have given rise to the plea. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of appeal, And the only thing finally decided by the Court of appeal was that in a suit constituted, as the suit of 1885 was, no decision ought to have been pronounced on the merits.' See also Ganga-bishen Bhugut v. Raghoonath Ojha  7 Cal. 881, Ghurrphekni v. Purmeshar Doyal Dubey  5 C.L.J. 653, Abdulla Ashgar Ali v. Ganesh Das A.I.R. 1917 P.C. 201, and Nilvaru v. Nilvaru  6 Bom. 110.
15. It was, however, been contended by the learned pleader for the respondent in the first place that the learned District Judge in the suit of 1903 having considered the question of limitation along with the question whether the ladies inherited the properties, the High Court must be taken to have accepted the finding on the question of possession as it was mixed up with the question of title.
16. We do not see, however, that the High Court did any such thing. The judgment of the High Court on the point runs as follows: 'As regards the other 12 annas share, the ladies, two of whom are defendants, claim those shares and say as regards those shares that the plaintiffs were dispossessed in 1883 and have continued out of possession ever since. This has been found as a fact by the lower appellate Court and that as regards those shares the suit is barred by limitation. On the findings of fact, this conclusion appears to be correct.'
17. The judgment of the High Court, therefore, was based on the fact that the plaintiffs were not in possession within 12 years of the suit. The question of title cannot be said to have been mixed up with the question of possession in such a way that the question of limitation could not be decided apart from the question of title.
18. In the next place it has been contended that the Exp. 6 of Section 11 should be taken into consideration. It is urged that there was a prayer in the plaint in the suit of 1903 for a declaration that the defendants had no title to the properties and that declaration not having been granted must be taken to have been refused, having regard to the express provisions of Exp.5 of Section 11, Civil P.C.
19. But we think that the declaration which was claimed by the plaintiffs in the prayer was not a declaration under Section 42 of the Specific Relief Act but a declaration which led up to the main relief claimed in the suit, namely, possession. In the words of the Judicial Committee in the case of Walihan v. Jogeswar Narayan  35 Cal. 189, that was 'merely an argumentative step towards the only decree sought, viz., possession,' and the Court was not entitled to make a declaration with regard to the third prayer in the plaint after the failure of the sole cause of action, namely, the plaintiffs' dispossession within 12 years.
20. In the third place, it has been contended that in the oases cited above the appellate Court expressly declined to go into the other questions decided by the lower Court.
21. But in the case of Nilvaru v. Nilvaru  6 Bom. 110, there was no such express reservation and yet it was held that the question was not finally decided. We think that upon the express terms of the Section Section 11 of the Civil Pro. Code it cannot be paid that a matter is finally heard and finally decided by the Court of appeal, when for any reason it does not think fit to go into the question. In the present case the High Court having disposed of the case merely upon the ground of limitation must) be taken not to have decided any other question.
22. Then, it is to be observed that the plaintiffs claim the taluki right in the present suit under a title different from that under which they claimed the leasehold interest in the suit of 1903. That was a right inherited by them from their father. The title upon which the plaintiffs have instituted the present suit is a title not derived from their father but a title which they claim as having devolved upon them as reversionary heirs of the last full owners-Swarup and Benimadhab. That being so, the principle of res judicata cannot apply as the two suits were not litigated under the same title.
23. The next point is whether the plaintiffs are estopped by reason of the statements made by them in the suit of 1903.
24. In the previous suit the plaintiffs' case was that Bhabani and Padmamani did not inherit,, and that the plaintiffs' grandfather had inherited those shares. In the present suit the plaintiffs case is that the widows had inherited those shares. The learned Subordinate Judge also refers to the statements of the plaintiffs' father in the mortgage bond and also in the suit for foreclosure on the mortgage, in which he asserted the right to the property to the exclusion of the widows. But these statements cannot bind the plaintiffs, because, as already stated, the plaintiffs claim the properties not as heirs of their father but as reversionary heirs of Swarup and Benimadhab. An eventual reversioner does not claim through any one, who goes before him. As pointed out in the case of Bahadur Singh v. Mohar Singh  24 All. 94. ' The then claimants were only expectant heirs with a spes successions. The plain' tiffs claimed in their own light as heirs of Mohar, when the succession opened and is would be a novol proposition to hold that a person so claiming is bound by a contract made by every person through whom he traces his descent.' [See also Rangaswami Gounden v. Nachiappa Gounden A.I.R. 1918 P.C. 196].
25. So far as the plaintiffs themselves are concerned, there is no doubt that the present statements are inconsistent with what was stated in the suit of 1903.
26. But there has been no change of position by reason of the statements made by the plaintiffs in the suit of 1903. The leases upon which the defendants base their right were granted by the widows in 1883 about 20 years before the suit of 1903. They could not have been affected in the matter of taking the leases by any statements made by the plaintiffs 20 years subsequently. As a matter of fact, the lessors had registered their names and had granted the leases to the defendants on the footing that they had inherited the estate from the last full owners.
27. It is contended by the learned pleader for the respondents that, had the plaintiffs set up the right, they now set up in the suit of 1903, the defendants might have taken steps for preservation of evidence on the point.
28. There is no evidence to show, however, that any evidence bearing on the point has since 1903, been destroyed.
29. We are accordingly of opinion that the plaintiffs are not precluded by the principle of estoppel, and that the plaintiffs would be entitled to the shares of the two taluks provided the other questions raised in the case are decided in their favour. But the question of legal necessity, as also the main question whether the plaintiffs inherited the property as reversionary heirs of Swarup and Benimadhab, or whether the widows Bhabani and Padmanoani held the properties by right of adverse possession and any other question that might be necessary to be decided in the case, have not been gone into by the lower appellate Court, as its decision proceeded only upon the questions of res judicata and estoppel.
30. The case must, therefore, go back to the lower appellate Court for a decision upon the other points raised in the case.
31. Then the next question is whether the plaintiffs are entitled to get a decree for the five jotes.
32. Upon that point, both the Court is below have come to the conclusion that they are not so entitled because the properties have not been sufficiently specified in the plaint.
33. The learned pleader for the appellants has contended that as the prayer was not for actual possession, the description given in the plaint was sufficient as it would be necessary only to notify to the tenants that the rent was to be paid to the plaintiffs.
34. But the land with respect to which the rent is to be paid must be specified in the decree, and the question whether the lands have been sufficiently specified, is a question which we cannot go into in second appeal. The Court of first instance says: 'There is no doubt of the fact that the description as given in the schedule is not sufficient for identification of the holding.' Then after stating certain reasons, the learned Munsif says: 'There is no other description of the jotes except by schedule to the plaint. Defendants have therefore raised a valid plea when they say that the suit will fail for want of proper description. The learned pleader for the plaintiff argues that defendant had no difficulty in identifying the lands as the very same description appears in defendant's document of title. This argument has no force as before passing the decree the Court ought to be satisfied whether the decree, if passed, will be capable of execution. I could not therefore agree with the learned pleader for the plaintiff in leaving the matter open for the Execution Department.' The claim with regard to the five jotes accordingly was dissallowed by the Court of first instance on the ground, of indefiniteness. The learned Subordinate Judge also finds that the description as given in the schedule is not sufficient for the identification of the lands. As already stated, the question whether they are or are not sufficient for identification is one for the Court dealing with facts to decide and we cannot go into the question. The claim with regard to the five jotes, therefore, must be dismissed-
35. The last question is whether the plaintiffs are entitled to mesne profits with regard to the shares of the two taluks,
36. It appears that a claim was made in the plaint for mesne profits and the claim was valued at Rs. 100 but it was disallowed by the Court of first instance on the ground that no evidence had been adduced before it and no application had been made for the hearing of the matter in further proceedings.
37. We do not see, however, why the claim should not be gone into after the decree. That is what is usually done. Formerly the claim for mesne profits used to be investigated in the Execution Department and now in further proceedings after the decree. The plaintiffs could not be blamed for not adducing evidence as to the amount of mesne profits before the decree had fixed the period for which the mesne profits would be payable. In these circumstances, if the plaintiffs get a decree in respect of the taluks, the Court should decide whether the plaintiffs are entitled to any mesne profits and if so, for what period, the actual amount of the mesne profits being left to be determined in further proceedings.
38. The result is that the claim with regard to She five jotes is dismissed with half costs in all Courts.
39. With regard to the claim for the two taluks the case is remanded to the lower appellate Court to be dealt with in accordance with the observations made above. Costs (one-half) to abide the result.