1. The lands that form the subject matter of the suits out of which these appeals arise, are situated in Mauza Jagtala which at one time constituted or formed a part of a Patni Taluk. As a result of a partition by the civil Court, this Patni Taluk was split up into a number of Sahams, and possession was delivered in accordance with the partition thus effected in or about the year 1894. During the pendency of the partition proceedings in the civil Court, one of the co-sharer patnidars, namely Ishan Chandra Sarkar, granted a darpatni lease of his undivided 2 gandas share in the Patni to one Dina Bandhu Bhaduri, and it appears that some of the other cosharer patnidars also granted darpatni lease of their respective shares at or about the same time. As a result of the partition, Saham No. 6 was allotted to the plaintiffs' predecessor-in-interest, Ishan Chandra Sarkar, and Dina Bandhu and after his death his sons Saroj Bandhu and Kumud Bandhu, there upon entered into possession as darpatnidars. In consequence however of certain defects in the map and Chitta on which the partition waa based, disputes arose between the darpatnidars of Saham No. 6 and the darpatnidars of the two adjoining Sahams, Nos. 9 and 14 and this dispute formed the subject matter of certain proceedings in the course of the 'Petty Settlements' of Sahams Nos. 9 and 14 that were commenced at the instance of the patnidars of those Sahams in or about the year 1904. The final publication of the Record of Rights of Saham No. 9 took place on 27th March 1907 and the final publication of the Record of Rights of Saham No. 14 took place on 24th July 1907.
2. In the course of the Petty Settlement of Saham No. 14 certain plots of lands were treated as appertaining to Saham No. 6. and were therefore excluded from the Record of Rights of Saham No. 14. The darpatnidars of Saham No. 14 accordingly instituted proceedings under Section 106, Ben. Ten. Act, with a view to having the Record of Rights corrected, the proceedings in question being numbered as Suits Nos. 1 and 7 of 1908. These suits were decreed by the Assistant Settlement Officer; on 21st March 1908, but were dismissed on 4th April 1910 as a result of appeals to the Special Judge. The result of the order of the Special Judge allowing the appeals ought to have been the exclusion of the lands covered by the suits in question from the Record of Rights of Saham No. 14, but through some mistake the corrections made by the Assistant Settlement Officer in favour of the darpatnidar of Saham No. 14 were allowed to stand with the result that the darpatnidars of Saham No. 14 were somehow able either to obtain possession, or to maintain their existing possession, of the lands in question, in spite of the fact that the settlement records were, (or ought to have been if it had not been for the mistake above referred to) against them.
3. In respect of certain other plots of lands which the darpatnidars of Saham No. 6 had unsuccessfully claimed in the course of the settlement proceedings as appertaining to their Saham, the latter instituted two suits in the regular civil Courts for declaration of their title and for confirmation or recovery of possession. One of these suits was instituted in January 1908, and was subsequently renumbered as Suit No. 364 of 1914, while the other one was instituted in March 1913, and was subsequently renumbered as Suit No. 165 of 1914. In Suit No. 364 the principal defendants were the darpatnidars of Saham No. 14 and in Suit No. 365 the principal defendants were the darpatnidars of Saham No. 9, the lands to which these two suits related having been recorded at the Petty Settlements as appertaining, to Sahams Nos. 14 and 9 respectively. These two suits were tried together, and during their, pendency the Patnidar, (viz. the plaintiffs in the present suit or their predecessors-in-interest), sued the Darpatnidars, (viz. the plaintiffs in those two suits), for arrears of rent, and having obtained a decree, they put the property to sale, and purchased it in execution on 19th April 1915. The sale was confirmed on 30th March 1916 and symbolical possession was delivered to the plaintiffs on 12th January 1918. In spite of the fact that the Darpatnidars' title had been extinguished by the sale of 19th April 1915 the latter were, for some reason which is not apparent to me, permitted to proceed with their suits which they did but without success; those suits being dismissed by the trial Court on 31st March 1919. It is further a matter for surprise that the Darpatnidars were not only permitted to prosecute their suits after their title had been extinguished but were even permitted to file and to prosecute appeals against the decrees by which their suits had been dismissed. The appeals were partially successful the result being that 'by its judgment dated 9th August 1920 the appellate Court granted a declaration in respect of a portion of the lands in suit to the effect that the Darpatnidars' title had subsisted at the time of the suit but had ceased to exist on 30th March 1916, the latter being the date on which the present plaintiffs' purchase in execution of the decree obtained by them had been confirmed. The suits were however dismissed in respect of the Darpatnidars' prayer for confirmation of possession or recovery of possession, the reason for this portion of the order being, of course, the fact that the Darpatnidars' title had been extinguished during the pendency of the suits. It should further be observed that what the appellate Court actually did was to decide which trijunction point should be adopted in re-laying the Batwara map with a view to ascertaining whether the lands in suit appertained to Saham No. 6 or to Sahams Nos. 9 and 14 as the case might be and to direct that the plaintiffs' title be declared to have existed at the time of the suits not in respect of any specified plots of land but in respect of such portions of lands in suit as might be found to fall within Saham No. 6 on the Batwara map being relayed in the prescribed manner.
4. It is certainly a matter for surprise that in spite of the protracted nature of this litigation between the Darpatnidars of Saham No. 6 and the Darpatnidars of Sahams Nos. 9 and 14 the present plaintiffs should have taken no steps to have themselves made parties to suits Nos. 364 and 365 although they had purchased the property as far back as the year 1915, 4 years before the suits were dismissed by the trial Court and 5 years before the appeals were disposed of. Their case is that they had no knowledge of these proceedings but it is not necessary to consider the truth of this assertion nor to arrive at any definite finding on the point. The District Settlement commenced in or about the year 1919, and the proceedings were not concluded till the year 1922 or thereabouts. The Record-of-Rights as finally published is in favour of the present defendants but this does not in my opinion raise any presumption in favour of the principal defendants in respect of their Darpatni rights as against the present plaintiffs' alleged Patni rights. The fact of the defendants being in possession of the lands in suit came to their knowledge (so they alleged) for the first time in the year 1925 and they thereupon instituted the suits out of which these appeals have arisen on 16th April 1926.
5. The suit out of which Appeal No. 1696 of 1930 arises is Suit No. 34 of 1928, the principal defendants being the Darpatnidars of Saham No. 14, and the suit out of which Appeal No. 1697 of 1930 arises is Suit No. 35 of 1928, the principal; defendants being the Darpatnidars of Saham No. 9. In Suit No. 34 the lands in dispute have been described in Schedules Ka, Kha and Ga of the plaint. The lands described in Schedule Ka are alleged by the plaintiffs to have formed part of the lands in respect of which title was found in favour of the Darpatnidars in Suit No. 364 of 1914. The lands claimed in Suit No. 35 are alleged by the plaintiffs to have formed the subject matter of Suit No. 365 of 1914, which was heard and decided along with Suit No. 364. The lands described in Schedule Kha of Suit No. 34 are alleged by the plaintiffs to have formed part of the land to which Suit No. 1 of 1908 related, and those described in Schedule Ga are alleged by the plaintiff to be comprised within the lands which form the subject matter of Suit No. 7 of 1908.
6. In the present proceedings no local inquiry has been held, and no attempt has been made to re-lay the Batwara map with reference to the map prepaid during the time of the District Settlement. The plaintiffs have in fact relied entirely on the judgment of the trial Court in Suit No. 364 in respect of their claim to the lands of Schedule Ka of Suit No. 34, and on the judgment of the appellate Court in Suit No. 365, (the same judgment as that in Suit No. 364), in order to establish their claim to the lands of Suit No. 35, while in respect of the lands of Schedule Kha and Ga of Suit No. 34 they have relied entirely on the judgment of the appellate Court in Suits Nos. 1 and 7 of 1908 respectively. Some other oral and documentary evidence was produced on the side of the plaintiffs, but very little importance appears to have been attached to such evidence by the plaintiffs themselves, and no reliance has bean placed thereon by either of the Courts below. The position is therefore that the success or failure of the plaintiffs' suit depends in the first instance on the legal effect of the judgments referred to above.
7. What the Courts below did was, in the first instance, to accept the plaintiffs' contention that the judgments referred to above were binding on the prinicipal defendants, and were indeed conclusive on the question of title. The Courts below then proceeded to consider whether the plaintiffs had succeeded in showing that the lands claimed in the present suits were covered by the judgments and decrees of the appellate Courts in suits Nos. 364 and 365 of 1914 and in suits Nos. 1 and 7 of 1908. The trial Court held that certain parts of the lands claimed by the plaintiffs in the present suits, were covered by those judgments and decrees, and accordingly decreed both the suits in part. The lower appellate Court agreed in the main with the trial Court, but modified the findings in respect of some of the plots claimed in the present suits and alleged by the plaintiffs to be covered by the judgments and decrees in the appellate Court 'in the previous suits referred to above. The principal defendants have now appealed to this Court and have challenged the judgment and decree of the Courts below, mainly on the ground that the plaintiffs have failed to prove their alleged title, and also on certain other grounds.
8. In my opinion both the appeals must be allowed on the first ground referred to above. Both the Courts below have treated the decisions of the appellate Courts in suits Nos. 364 and 365 of 1914, and in Suits Nos. 1 and 7 of 1908, as being binding on the principal defendants, the latter having been parties to those decisions. They have in fact, though perhaps not in so many words, held that those decisions operate as res judicata on the question of title. I am of opinion that the Courts below were clearly wrong in taking such a view and for various reasons. In the first place the provisions of Section 11, Civil P. C., do not apply in terms to the proceedings in question inasmuch as the present plaintiffs were not parties to the former suits. It has been suggested on behalf of the plaintiffs that the latter in some way or other were representatives of the Darpatindars of Saham No. 6 who were the plaintiffs in Suits Nos. 364 and 365, and the defendants in Suits Nos. 1 and 7. But it is clear from the findings of the Courts below, that the sale at which the plaintiffs purchased the property was a rent sale and that what the plaintiffs got by the purchase was the Darpatni itself and not merely the right, title and interest of the judgment-debtors. Both the Courts below have found on a consideration of the entire evidence including the sale certificate, that the proceedings which resulted in the purchase of the property, were proceedings between the entire body of landlords and the entire body of tenants, and this is a finding of fact which cannot be called in question in this Court.
9. The Darpatni rights having been acquired by the patnidars, they have merged in the patni right, and this being so, it must be held that these suits have been brought by the plaintiffs solely in their capacity as patnidars, and not in any way as the representatives or successors in interest of the former darpatnidars. Moreover even if by their purchase the plaintiffs had only acquired the right, title and interest of the darpatnidars, and even if it were held that there had been no merger and that the plaintiffs were entitled to the benefit of the findings on the question of title arrived at on appeal in Suits Nos. 364 and 365, the plaintiffs would not be entitled to a decree for possession in the present proceedings inasmuch as it was held on appeal in Suits Nos. 364 and 365 that the darpatnidars were not entitled to a decree for possession. The plaintiffs cannot have it both ways: they cannot, as representing darpatnidars, get the benefit of the decision on the question of title arrived at by the appellate Court in Suits Nos. 364 and 365, without at the same time being debarred from obtaining possession under the terms of the very judgment and decree in which that decision was incorporated. Again it is abundantly clear that if the darpatnidars had been unsuccessful in Suits Nos. 364 and 365 of 1914, or in Suits Nos. 1 and 7 of 1908, the plaintiffs, as patnidars, would not have been bound by the decisions arrived at in those suits, not having been parties thereto. For these and other reasons it must be held that the judgments and decrees referred to above do not operate as res judicata in respect of the present proceedings, and the principal defendants in the present proceedings, although they were parties to the former proceedings, are in no way bound by the decisions arrived at in those proceedings.
10. It has been further contended on behalf of the appellants that if the judgments and decrees in Suits Nos. 364 and 365 of 1914, and in Suits Nos. 1 and 7 of 1908, do not operate as res judicata, they are not admissible in evidence at all. It appears to have been at one time held by this Court that a previous judgment which was not inter partes could not in any circumstances be admitted in evidence in any subsequent proceedings: vide 6 Cal. 171 Gajju Lall v. Fatteah Lall, (1881) 6 Cal 171 and 13 Cal. 352 Surendra Nath v. Broja Nath Pal, (1886) 13 Cal 352 (FB). It was however pointed out by a Pull Bench of this Court in 25 Cal. 522 Tepu Khan v. Rajani Mohan Das, (1898) 25 Cal 522 that those decisions had been materially qualified by the observations made by their Lordships of the Privy Council in 22 Cal. 533 Ram Ranjan v. Ram Narain, (1895) 22 Cal 533 and 19 All. 277 Bitto Kunwar v. Kesho Prasad, (1897) 19 All 277; and in recent years the tendency has been to admit such judgments in evidence under certain circumstances and for certain limited purposes, under the provisions of Section 43, Evidence Act, read with Sections 11 and 13 of that Act: vide the decision of this Court in the case of 1925 Cal. 194 Gopi Sundari v. Khirode Gobinda, 1925 Cal 194. This being the present state of the law it seems to me that the judgments in question have been rightly admitted, and that although they do not operate as res judicata they ought to be treated as pieces of evidence to be used for certain limited purposes and to be taken into consideration along with the other evidence, if indeed any other evidence exists. The lower appellate Court has however gone far beyond this, and has discussed, for example, the basis of the decisions arrived at by the appellate Court in Suits Nos. 364 and 365, and has come to the conclusion that the reasons given in the judgment of that Court in support of its decision were sound, and that the decision arrived at was the right decision. This is clearly not the proper way of dealing with a judgment not inter partes, which does not operate as res judicata, and which has been received only for certain limited purposes.
11. I have indicated above the very peculiar nature of the decision arrived at by the appellate Court in Suits Nos. 364 and 365, and it seems to me that having regard to the circumstances in which that decision was arrived at and the nature-of the decision itself, it is of no value whatever in arriving at a decision regarding the present plaintiffs' title to the lands described in schedule Ka of Suit No. 34 or to the lands to which Suit No. 35 relates. As regards the effect of the decision of the appellate Court in Suits Nos. 1 and 7 of 1908, this was merely a decision on the question of possession and its effect was the same as an entry in the Record of Rights regarding possession, that is to say, its effects was to entitle the darpatnidars of Saham No. 6 who were the principal defendants in those suits, to the benefit of the presumption regarding their possession that would have arisen out of an entry recorded in their favour in the finally published Record of Rights. This presumption would however have been of little value to the darpatnidars in respect of the question of their title to the lands covered by that decision, and the decision is, in my opinion, of no value whatever so far as the present plaintiffs who are the darpatnidars, are concerned.
12. The result is that the plaintiffs must be held to have failed to establish their title, and for this reason alone their suits must be dismissed. In these circumstances it is not necessary to consider the other points that have been urged on behalf of the appellants. On the questions of limitation, acquisition of title by adverse possession, and absence of notice under Section 167, Ben. Ten. Act, I may however remark that those points have been decided in favour of the plaintiffs by both the Courts below, and I see no reason to doubt the correctness of the findings on those points arrived at by those Courts. The plaintiffs having failed to prove their title, the appeals are allowed, the judgments and decrees of both the Courts below are set 'aside, and both the suits are dismissed with costs in all Courts. Leave to appeal under Section 15 of the Letters Patent has been asked for and refused.