1. The subject-matter of the litigation which has culminated in the present appeal is an area of 344 bighas of land. The circumstances under which the plaintiff and defendants, respectively, claim the ownership of the disputed property, are of some complexity but when they are carefully analysed, the questions in controversy between the parties turn out to be fairly simple of solution.
2. For members of a family of Mitters, by name Bhagabati Charan, Ramdoyal, Dindoyal, and Chandra Kant, all descendants of one Jagannath, were the owners of two properties, one a kharija taluq which they held directly under the Government and which bore No. 697 (former No. 353) on the Revenue Rolls of the Collector of Jessore, and another a maurusi jama or hereditary tenure which they held under the predecessors of the first two defendants, who possessed a putni right in that property. For the sake of brevity, the first of these properties may be described as the taluk, and the second as the ganti. The Mitters were entitled to one-fifth share of three villages, namely, Gayalbari, Durbajuri and Kallora included in the former, and held two villages, Icharbahar and Gayalbari included in the latter. On the 3rd February 1859, they executed a mortgage by way of conditional sale of these properties to one Iswar Chandra Bose, the father of the eighth defendant, who, admittedly entered into this transaction on behalf of his daughter. The mortgage-deed was not produced in the Court below, but by consent of parties has been received in evidence in this Court, and it appears from that document that there was no schedule of details of the lands comprised in the two properties given by way of mortgage. In 1862, the mortgagee commenced an action to foreclose the mortgagors and their representatives-in-interest, and to recover possession of the properties comprised in the security, He joined as parties to the suit the co-sharers of the mortgagors in the taluq, and also the zemindar and the putnidar under whom the ganti was held by the mortgagors. To this plaint was attached a schedule of boundaries of the numerous parcels of land included in the properties mortgaged, and they were classified as included in the taluq or in the ganti. On the 17th January 1866, a decree was made in favour of the mortgagee, and subsequently, on the basis of this foreclosure decree, the mortgagee obtained possession of all the properties. The result was that the right of the mortgagors to continue in possession terminated. It is clear, however, that they continued in possession, and on the 15th December 1868, Bhagabati Charan and the other mortgagors executed a qabuliat in favour of Iswar Chandra Bose, in respect of the lands comprised in the villages, Gayalbari and Kallora, at an annual rental of Rs. 534-13-0. Consequently, the position of the Mitters at the time was that of tenants under Iswar Chandra in respect of the lands comprised within the taluq. There is no evidence to show as to who was in possession of the lands of the ganti at this time, and it may be assumed that Iswar Chandra had possession of those lands. On the 27th January, 1892, the eighth defendant, the daughter of Iswar, as the person beneficially interested in the property acquired under the mortgage transaction, granted a maurasi lease to the husband of the present plaintiff in respect of her one-fifth share of the taluq, and thus demised her interest in the villages Gayalbari and Kallora. The lessee, Ram Lal Roy, is proved to have been the pleader of the family of the zemindars of Narail, of whom the eighth defendant was a member, and it has been suggested that this lease, which is the root of the title of the plaintiff, was granted to her husband on extremely favourable terms in recognition of his services as legal adviser. Ram Lal shortly after the grant of the lease in his favour, obtained a decree for rent against the Mitters due under the lease of 1868. This decree was executed, and on the 22nd August, 1895, Ram Lal purchased in execution the tenure created in favour of the Mitters in 1868. The plaintiff, as the representative in interest of her husband, claims to recover possession of the disputed area as comprised within the taluq, of which she has now a permanent lease granted by the document of 1892. The defendants, on the other hand, claim to retain possession of these lands as included within the ganti. The history of the devolution of the ganti interest has now to be narrated. As we have already stated, after the foreclosure decree of 1866, Iswar Chunder got into possession of the ganti. In 18V2, the father of the first two defendants, Gobinda Chandra Roy, who was the putnidar and the immediate landlord of the gantidar, commenced an action against Iswar Chunder for assessment of rent upon the allegation that he had encroached upon the adjoining lands of his landlord, and was thus in possession of a much larger area than that for which he paid the rent. In this litigation, Govinda Chunder claimed the lands now in dispute as included within his ganti, and asserted his right to have rent assessed thereupon. Iswar Chunder resisted the claim upon the allegation that the lands were outside the ganti, and comprised not within the putni of the superior landlord, but within the taluq, which he had acquired by virtue of the mortgage and held directly under the Government. The case was heard in the Court of first instance by a Munsif. The point in controversy between the parties was, whether the lands then in dispute which are identical with the lands now in controversy, were comprised within the taluq as alleged by Iswar Chunder, or within the ganti, as alleged by Gobinda Chunder. There was an elaborate enquiry, and the Court placed reliance upon a local investigation which had been made for the purposes of the mortgage suit of 1862. Iswar Chunder relied principally upon a thak map, to which much attention was not paid, because it was produced at a very late stage of the proceedings. The Court came to the conclusion that Gobinda Chunder had established by evidence that the disputed lands were situated in Gayalbari and were comprised in the ganti and that Iswar Chunder had failed to substantiate his allegation that they were comprised within the taluq. In this view, rent was assessed upon these lands, and a decree was made in favour of the then plaintiff on the 30th November 1875. Iswar Chunder then appealed to the District Judge, who affirmed the decision of the Court of first instance on the 28th November 1876, with an important variation, namely, that as both parties admitted that the excess lands must be incorporated with the original jama, he directed that the lands be so incorporated and the whole form one tenancy. Against this decision, an appeal was preferred by Iswar Chunder to this Court, but it was dismissed on the 4th April 1878. The result of this litigation, therefore, was that Gobinda Chunder successfully asserted his title to these lands as the landlord of the ganti, and the defence set up by Iswar Chunder that the lands were comprised in the taluq and bore no relation to the ganti, was overruled. Subsequently in 1878, Gobinda Chunder brought another action for rent against Iswar Chunder--on this occasion in the Court of the Subordinate Judge--for recovery of rent of a period subsequent to that in respect of which rent had been claimed in the previous suit, but on the basis of the enhancement decree in that litigation. There was no opposition, and the suit was decreed ex parte. As the decree was not amicably satisfied, Gobinda Chunder proceeded to enforce it, and on the 1st November, 1878, purchased the tenure in execution. The sale was confirmed on the 14th December, 1878, and possession was delivered to the decree-holder purchaser. On the 11th January 1.881, Gobinda Chunder granted a lease for a term of 5 years of the lands of the ganti purchased by him, to one of the Mitters by name Bhagabati Charan; but before the expiry of this lease on the 31st August, 1884, Gobinda Chunder granted a mourasi lease of the same lands to one Radhika Charan, who, it is admitted, took the lease for the benefit of the wives of the two Mitters, Bhagabati Churn and Chandra Kumar. The Mitters apparently continued in possession under this lease; but default was made in the payment of rent, with the result that Gobinda Chunder obtained a decree, took out execution, purchased the properties at a sale for arrears of rent on the 20th August, 1894, and subsequently obtained a sale certificate on the 31st October 1894. The case for the first two defendants, the representatives of Gobinda Chunder, is that the disputed lands are comprised in the ganti, and that they are entitled to retain possession thereof as holders of the tenure The substantial questions in controversy between the parties, therefore, reduce to two; first, what is the effect of the litigation of 1872, which was terminated by the decree of this Court in. 1878, as also of the litigation of 1878, which terminated in the purchase by Gobinda Chunder of the ganti held under him by Iswar Chunder; secondly, were the disputed lands as a matter of fact comprised originally in the taluq or in the ganti?
3. So far as the first of these questions is concerned, it has been argued by the learned Vakil for the appellant that the decision of the Munsif in the suit for assessment of rent brought by Gobinda Chunder in 1872 does not operate as res judicata, because the present suit is triable only by a Subordinate Judge. It has not been disputed by the learned Vakil for the respondents that the view put forward by the appellant is supported by the observation of their Lordships of the Judicial Committee in the case of Gokul Mandar v. Pudmanund Singh 29 C. 707 In this case, Lord Davey observed that under Section 13 of the Code of 1882 a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit, unless the Judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised. He further observed that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction. This view has been adopted by this Court in the case of Shibo Raut v. Baban Raut 35 C. 353; 7 C.L.J. 470; 12 C.W.N. 259. It may be assumed, therefore, that the decision in the suit of 1872, that the lands in dispute then, were included in the ganti and not in the taluq, does not operate by way of res judicata in the present litigation. This, however, is by no means conclusive upon the question in controversy between the parties. We must not overlook the subsequent litigation of 1878, in which Gobinda Chunder successfully asserted his claim to recover rent for all the lands determined as comprised within the ganti by the decree in the suit of 1872. Assume for a moment that it was open to Iswar Chunder to contest the claim in that litigation, to plead that the decision in the suit of 1872 was not res judicata, and to invite the Court to come to an independent determination of the question of the title of Gobinda Chunder to claim rent in respect of the disputed lands. Iswar Chunder, however, did nothing of the kind. He allowed the decree to be passed against him, which was subsequently enforced with the result that the decree-holder acquired the ganti by purchase at execution sale. Obviously, the representative of Iswar Chunder is barred by the doctrine of constructive res judicata, for, as was pointed out by this Court in the case of Shyama Charan Banerji v. Mrinmayi Debi 31 C. 79 if a defence might and ought to have been taken in a previous litigation but was not taken with the result that the suit was allowed to be decreed ex parte, the position of the defendant is the same as if he had raised the defence directly and substantially and had been defeated. In this view, it would follow that the question whether the disputed lands are comprised within the taluq or the ganti, cannot be re-agitated by the plaintiff in the present litigation.
4. There is, however, another aspect of the matter which presents, in our opinion, an equally substantial bar to the claim of the plaintiff. The effect of the decree in the suit of, 1872 was to establish the relationship of landlord and tenant in respect of these lands as between Gobinda Chunder and Iswar Chunder. In a Court of competent jurisdiction, in fact in the only Court which at the time was entitled to have seisin of the matter, Gobinda Chunder successfully asserted his claim to have rent assessed upon the disputed lands as against Iswar Chunder. The relationship so constituted was confirmed in the Court of Appeal, where, by consent of the parties, the excess lands were declared to be comprised in the ganti, and direction was given that those lands be incorporated with the original jama and that the whole do form one tenancy. Assume for a moment that it was open to Iswar Chunder to maintain an action in a Court of superior jurisdiction for declaration that this decree was erroneous in fact or law or was for some other reason not operative against him. He has never asserted his right to contest this decree. If it is assumed that a suit for this purpose could have been brought either within six years from the date of the. cause of action under Article 120, or within 12 years under Article 144 from the date when Gobinda Chunder successfully asserted an adverse title against him, the time to bring such a suit has long expired. It is manifest that the title of Iswar Chunder to set aside the decree of 1878, even if it be assumed that such a suit could have been maintained, became barred by limitation in 1890, if not in 1884. Secretary of State for India v. Krishnamoni Gupta 29 O. 518 at p. 534; 29 i. A. 104 at p. 114. It is difficult to appreciate how nearly 24 years after the date of the decree of this Court made on the 4th April 1878, the representative of Iswar Chunder can successfully impeach the decree made against him. He cannot be allowed to ignore that decree and to place himself in a position of advantage which he could not possibly occupy if he made a direct attempt to assail that decree.
5. It was suggested by the learned Vakil, for the appellant that as the Mitters were in actual occupation of the lands, it was immaterial to Iswar Chunder whether the lands were treated as comprised in the taluq or in the ganti, both of which had vested in. him. This argument, however, is obviously fallacious. The contest between Gobinda Chunder and Iswar Chunder in the suit of 1872 was, whether the former was entitled to throw upon the latter a larger burden of rents than had previously been, paid, on the allegation that the latter was in possession of a larger quantity of land than before. The sole point in controversy was whether the lands in dispute were held by Iswar Chunder under Gobinda Chunder, or by virtue of an independent title under Government. Iswar Chunder failed in his defence, and the result was that Gobinda Chunder succeeded in his attempt to annex these lands to his ganti. This state of things has continued for nearly a quarter of a century. It is too late for the representative of Iswar Chunder now to ignore the decree of 1878 made by this Court, or the subsequent decree of the same year made by the Subordinate Judge. We must consequently hold that in the view we take the plaintiff is not entitled to succeed.
6. The second question, which requires consideration, is whether as a matter of fact the disputed lands were originally included within the taluq or the ganti. The Commissioner who was appointed to investigate this matter found on the basis of the thak map of 1857 that out of the 344 bighas claimed by the plaintiff, about 223 bighas were originally included within the taluq.
7. The Subordinate Judge modified the finding of the Commissioner, and came to the conclusion that only 204 bighas, 8 cottas and 4 chattaks were comprised in the taluq. This finding has been assailed before us by the learned Vakil for the respondents. In the view we have taken of the first question, it is not necessary for us to go into a minute examination of this branch of the case, but we may observe that the case for the plaintiff is by no means free from difficulties. No doubt if the thak map stood by itself, and there was no evidence to the contrary, it would serve as a substantial foundation for the case of the plaintiff.
8. We are not disposed, however, to agree with the contention of the learned Vakil for the respondents that the entry in the thak map that it had been prepared in the presence of the tahsildar of the Mitters is not admissible in evidence. The case of Jarao Kumari v. Lalonmani 18 C. 924 17 I.A. 145 upon which reliance was placed, is clearly distinguishable. It was there ruled that statements by the Survey Officer in maps that certain lands were debutter were not admissible in evidence, as they had no authority to decide whether the lands were debutter or secular. Here, however, the entry, which was made, was within the scope of the Survey Officers, and whatever may be the weight which ought to be attached to such an entry, it cannot be contended that it is not admissible in evidence, in view of the decision of this Court in the case of Abdul Hamid Mian v. Kiran Chandra Roy 7 C.W.N. 849. It may be assigned, therefore, that the thak map indicates that the disputed lands were in 1857 treated as comprised in the taluq. But since then important events have happened. Though there was no description of the mortgaged properties in the deed of 1859, yet the mortgagee, Iswar Chunder', now represented by the plaintiff as the lessee from his daughter, deliberately gave detailed boundaries in the plaint of the suit to enforce the mortgage security in 1862. It is impossible for us to discover at this distance of time, upon what materials the statements attached to the plaint were based. It is obvious, however, from an examination of the schedules which were reproduced from the plaint in the decree that they must have been prepared with considerable care and possibly upon information specially collected for the purpose. It is not disputed that the lands now in controversy were shown in the schedule to the plaint as comprised within the ganti. The statement so made has subsequently received judicial sanction. In the suit for enhancement of rent of 1872, Iswar Chunder contested the allegation of Gobinda Chunder that the lands were comprised in the ganti. He was met successfully by his previous statement, and Gobinda Chunder proved by independent evidence that the lands were comprised not in the taluq but in the ganti The decision of the Court of first instance was unsuccessfully attacked before the District Judge on appeal, and also before this Court as the Court of ultimate appeal. In the suit for rent, which immediately followed, Iswar Chunder made no attempt, to question the validity of the decision in the previous litigation, though as the suit was commenced in a Court of superior jurisdiction, he might under the law have possibly availed himself of the opportunity to re-agitate the matter. The decree made in this second suit for rent was enforced, and the decree-holder purchased the consolidated ganti inclusive of the lands admittedly comprised in it as also the excess lands brought into it as the effect of the decree in the suit of 1872. The representatives of Gobinda Chunder have, in assertion of their right, been in possession of the ganti ever since. In this view of the evidence it would, in our opinion, be not safe to rely solely upon the thak map of 1857, to ignore the remainder of the evidence, and the series of transactions to which we have already referred, and to declare that the lands are comprised within the taluq and not. within the ganti.
9. Our attention was invited to the question of possession, and it was suggested by the learned Vakil for the appellant that, although Gobinda Chunder purchased the ganti in execution sale on the 1st of November, 1878, and had his sale confirmed on the 14th December following, and although he did not lease out the property to one of the Mitters till the 11th January, 1881, he had as a matter of fact no possession during the intervening period. There is no substantial evidence on the side of either party as to the actual possession in 1879 or 1880, but it is clear that the case of Gobinda Chunder throughout has been that he had actual possession during these two years, and there is some evidence, however slight, in support of that allegation In these circumstances, it would not be unfair to apply the presumption of law contained in the luminous dictum of Mr. Justice Maule in Jones v. Chapman (1847- 49) 2 Exch. 803; 76 R.R. 794 on the subject of the determination of legal possession where physical control is doubtful or interrupted: 'As soon as a person is entitled to possession and enters in the assertion of that possession, or which is exactly the same thing, any other person enters by command of that lawful owner, so entitled to possession, the law immediately vests the actual possession in the person who so enters. If there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is, which of these two is in actual possession, I answer that the person who has the title is in actual possession, and the other person is a trespasser.' So far as the evidence goes, we think that it is fairly clear that Gobinda Chunder successfully asserted his claim to these lands as comprised within the ganti in the suit of 1872, that those lands were subsequently consolidated as Comprised in the ganti, that in 1878 Gobinda Chunder obtained a decree for arrears of these lands, that he purchased in execution sale the consolidated tenure, and that since his purchase he has been in possession at first directly and subsequently through the Mitters. The title of the plaintiff, therefore, even if it be conceded that he had at any time any title, must be taken to have been barred by limitation. In this view also, the claim of the plaintiff must fail.
10. We have made no detailed reference to the reasons given by the learned Subordinate Judge in his judgment in support of his conclusion that the plaintiff cannot possibly succeed. Those reasons are, in our opinion, of a somewhat inconclusive character, and are in many places open to criticism. For instance, the view taken by the learned Subordinate Judge that the decision in the foreclosure suit of 1862, operates as res judicata is, in our opinion, entirely unsustainable. In that case, no question arose, nor indeed could any question possibly arise, as to whether the disputed lands were comprised in the taluq or in the ganti. The putnidar and the zemindar, who had superior interest over that of the gantidar, had been joined as parties, and the co-sharers in the taluq had been also brought on the record. They appear to have taken objection as to whether certain lands were the properties of the mortgagors or the properties of other persons, and the objection appears to have succeeded in part. There was no adjudication upon the question whether the lands now in dispute fell within the taluq or the ganti. Such a question was wholly immaterial for the purposes of the mortgage suit, because if the lands comprised in the mortgage security were the properties of the mortgagors, it was immaterial to the mortgagee, at least for the purposes of that litigation, whether the lands fell within the taluq or the ganti. To take another instance, the Subordinate Judge appears to have felt some doubt as to the genuineness of the qabuliat executed by the Mitters in 1868 in favour of Iswar Chundra. There can, in our opinion, be no doubt that the document was genuine, that it represented a true transaction, and that it was acted upon by the parties interested for a number of years. The Subordinate Judge appears to have been also doubtful as to the genuineness of the transaction embodied in the lease of 1892 executed by the eighth defendant in favour of the husband of the plaintiff We are not inclined to share that doubt. The evidence plainly shows that Ram Lal was the trusted legal adviser of the family of the zemindars of Narail. It is also clear that the land in question had long been in the possession of the defendant and had practically become irrecoverable. Under these circumstances, it would be nothing surprising for Ram Lal to take his chance of a possible benefit under the lease. We need not comment further upon the decision of the Subordinate Judge, because we feel convinced that whatever criticisms may be successfully directed against the reasons given by him, there can be no possible doubt as to the true position of the parties in relation to the subject-matter of the litigation.
11. For these reasons, we are satisfied that the title of the plaintiff was at best originally doubtful, and that in the events which have happened, that title has either been extinguished by limitation, or has become unenforceable by reason of the decisions in the suits of 1872 and 1878, which have remained unchallenged for nearly a quarter of a century. The result, therefore, is that the decree of the Subordinate Judge must be affirmed, and this appeal dismissed with costs.