R.C. Mitter, J.
1. This appeal which is by the principal defendant arises out of a suit instituted by the plaintiff-respondent for declaration of his title (eight annas share) to two tin sheds standing on Dag No. 688 of the Cadastral Survey Map and also for confirmation of possession. The sheds are in the possession of a tenant, Sitaram Halui, who is pro forma defendant No. 11. The principal question involved in this appeal is a question of res judicata a question on which the two Courts: below have differed, the Court of first instance deciding that question in favour of the principal defendant, who had set up the plea, the lower Appellate Court against him.
2. The plaintiff had shares in tin sheds standing on two plots of land, which have now been recorded in, Dags Nos. 688 and 689 of the Cadastral Survey Map. In execution of a decree obtained against the plaintiff, as surety, the defendant's father Gouri Datta purchased the plaintiffs' 1-3rd share in some of the tin sheds, in January, 1908. The question involved in this suit is whether Gouri Dutta purchased the tin sheds standing on Dags Nos. 688 or on 689. The plaintiff says that he purchased the plaintiff's 1-3rd share in the sheds standing on Dag No. 689. But the principal defendant maintains that he purchased the plaintiff's 1-3rd share in the tin sheds standing on Dag No. 688. The lower Appellate Court has found as a fact that Gouri Dutta purchased a share of the sheds standing on Dag No. 689 and the plaintiff still has accordingly his share in the sheds now in dispute which according to its findings stand on Dag No. 688.
3. The point of res judicata arises in this manner. In the year 1929 the principal defendant as heir of his father Gouri Dutta instituted a suit (Money Suit No. 604 of 1929) to recover a third; share of the rent from Sitaram Halui. The suit was not a suit for rent of [agricultural lands] and so admittedly the provisions of the Bengal Tenancy Act did not apply to that suit. In the plaint he recited that his father had, purchased 1-3rd share of the sheds and there was separate collection by him and his father. He stated in the plaint that the remaining shares belonged to the pro forma defendants. One of the pro forma defendants was the present plaintiff. He further stated that if separate collection be not proved he should be given a decree for his 1-3rd share of the rent, as the remaining co-sharer landlords had been made parties to the suit. No relief was, however, prayed against any of the aforesaid pro forma defendants. The tin sheds in respect of which rent was claimed in that suit, are the sheds now in suit.
4. The present plaintiff did not appear but he deposed in favour of Sitaram Halui who had denied the title of the plaintiff in that suit and also denied relationship of landlord and tenant. The Court decided that Gouri Dutta had acquired 1-3rd share of the present plaintiff in the said tin sheds and that there was relationship of landlord and tenant between the plaintiff in that suit, and the tenant. A decree was accordingly passed in his favour.
5. The question in this appeal is whether the decision in that suit that Gouri Dutta purchased 1-3rd share of the tin-sheds now in suit is res judicata. In my opinion it is not.
6. If the present plaintiff had appeared in the rent suit, he could have defeated that suit by showing that Gouri Dutta had purchased a share in sheds standing on Dag No. 789 and not on Dag No. 788. That is quite clear. But the question is whether he ought to have appeared, in that suit and going a step further, if he had appeared pleaded the case which he is now pleading in this suit and got an adverse finding, whether that finding would be res judicata. In my judgment it would not have operated as res judicata. No relief was claimed against him, he could not have appealed from the decree of the Court if the claim of the plaintiff in that suit was decreed and if the plaintiff's claim in that suit was dismissed, there would not have been any decree in his favour. He could not have insisted on the suit proceeding as a contested one if the tenant-defendant had withdrawn his defence. He was accordingly a formal or nominal party in that suit and the findings arrived at therein could not accordingly operate as res judicata against him. These principles are in my judgment well-settled by a series of decisions Nabin Chandra Mazumdar v. Mookta Sundari Dibi 15 W.R. 309 Braja Nath Mitter v. Kedar Nath Mazumdar 12 C. 580, Balambhat v. Narayan Bhat 25 B. 74, Ramdas v. Wazir Sahib 25 B. 589 and Malhi Kunwar v. Imam-ud-din 27 A. 59 and many other cases. Ram Da's case 25 B. 589 is a very strong case. There A sued B for possession of a property on the ground that B was his agent and trustee. He alleged in his plaint that B had been dealing with the property as if he was then full owner. G was made a defendant on the allegation that B had given him a mortgage, but no relief was claimed against him (C). Both B and C appeared in the suit and raised a common defence that B was the full owner and not agent and trustee of A. The Court found that B was the agent and trustee of A and decreed A's suit for possession against B. Thereafter C sued to enforce his mortgage. In that suit he impleaded both A and B as defendants. It was held that as A had claimed no relief against C in the earlier suit, the finding in that suit that A arid not B was the owner, and that B was the agent and trustee of A did not operate as res judicata. The case cited by the appellant before me, namely, Bishnupada Samanta v. Mohamed Ismail 39 C.W.N. 692 : 157 Ind. Cas. 381 : 61 C.L.J. 301 : 8 R.C. 104 has no bearing on the present question. In that case all that was done was to lay down the test as to when a question, not actually raised in tissue but which might and ought to have been raised in issue, must be taken to be finally decided. I accordingly overrule the point of res judicata and maintain the finding of fact arrived at by the lower Appellate Court that the plaintiff's title to the tin-sheds in suit did not pass to Gouri Dutta by the sale in January, 1903, and that the plaintiff has still the shares which he claims in the suit property.
7. Another question has been raised by the appellant, namely, that the judgment of the lower Appellate Court that the principal defendant had not acquired any title to the 1-3rd share in the sheds by adverse possession is not a proper judgment of reversal; I do not agree with that contention. The lower Appellate Court has found that the principal defendant had failed to prove that he or his father had realised rent from the tenant for twelve years or more. That finding has been arrived at on a detail consideration of the evidence by that Court.
8. I accordingly affirm the judgment and decree passed by the lower Appellate Court and dismiss this appeal with costs.