1. This appeal arises out of a suit for establishment of the plaintiff's title to 2/3rds share of four plots of land and for confirmation of possession.
2. This property appears to have been sold in the year 1894 in execution of a decree against the plaintiff and purchased by one Rajendra. There was another sale of the interest of the plaintiff and his brother in the year 1898 and the defendants purchased the property at that sale. In 1901 there was a conveyance executed in respect of the property by Rajendra in favour of the plaintiff. A suit was instituted, however, by the plaintiff's daughter on the basis of that conveyance against the defendants on the ground that the purchase was really made with the funds snubbed by her in the name of the plaintiff. That suit was decreed by the Court of first instance in favour of the plaintiff's daughter. On appeal by the defendants, the suit was dismissed and the decree of the lower Appellate Court was confirmed on second anneal on the ground that the plaintiff's daughter had no beneficial interest in the purchase under the conveyance from Rajendra.
3. In the present case, the Court of first instance dismissed the suit except with regard to If bighas, that being the homestead land. On appeal, the learned District Judge has dismissed the suit entirely. The plaintiff has appealed to this Court.
4. The real question to be decided is whether the 'purchase' by Rajendra at the sale held in the year 1894 really passed the interest of the plaintiff in the property; because if it did not, then the defendants acquired the right of the plaintiff at the sale held in the year. 1898. The learned District Judge has found that the purchase by Rajendra was benami for the plaintiff himself.
5. It is contended on behalf of the appellant that the question whether Rajendra's purchase was benami or not, is res judicata by reason of the decision in the suit brought by the plaintiff's daughter.
6. In that case the present defendants were the principal defendants and the present plaintiff was the pro forma defendant, his daughter being the plaintiff. The defence of the principal defend, ants was, first, that Rajendra's purchase was for Tara Das, the plaintiff in the present case, and secondly, the purchase from Rajendra was' not in favour of the plaintiff's daughter but in favour of Tara Das himself. The Court of first instance in that suit found that Rajendra's purchase was bona fide and that the plaintiff's daughter was the real purchaser under the conveyance from Rajendra. The defendants appealed objecting to the findings on both the points, but the judgment of the Appellate Court proceeded solely upon the ground that the purchase from Rajendra was in favour of Tara Das and not in favour of his daughter and that appears to be the ground of decision in this Court in second appeal. As a matter of fact, the suit brought by the plaintiff's daughter was dismissed on appeal and that decree was confirmed on second appeal. The final decree, therefore, in that litigation was based upon the ground that the plaintiff's daughter had no beneficial interest in the property and that, therefore, she had no cause of action. The other question whether Rajendra's purchase was for himself or for Tara Das was not the basis of the decision. It is contended on behalf of the appellant that the finding that the purchase from Rajendra was in favour of Tara Das involved the finding that Rajendra's purchase at the auction sale was bona fide and was not a benami purchase for Tara Das. But then the finding that the plaintiff's daughter had no title and, therefore, had no cause of action, was sufficient for the disposal of the suit. The defendant, as stated above, in the grounds of appeal against the decree of Ithe Munsif to the lower Appellate Court, objected to both the findings and one of the grounds of appeal was that Rajendra's purchase was benami for Tara Das. As, however, it was sufficient for the purpose of the disposal of the appeal to decide that the plaintiff's daughter had no beneficial interest, it was unnecessary for the Court to try the other question which had been decided against the defendants by the Court of first instance.
7. In these circumstances and apart from other considerations we do not think that the decision in that suit operated as res judicata. If that decision does not operate as res judicata, the finding of the lower Appellate Court, namely, that the purchase by Rajendra was benami for the plaintiff, cannot be attacked in second appeal.
8. It may be pointed out, however, that when this property was advertised for sale at which the defendants purchased, the plaintiff applied for stay of sale on payment of a certain sum of money to the decree-holder, and in the application for the stay of |he sale, he admitted that be was the owner of the property. It was at that sale that the defendants purchased the properly. This is one of the facts, which has been taken into consideration by the learned District Judge in coming to the conclusion that, the purchase by Rajendra was benami for the plaintiff.
9. In this view, it is unnecessary to consider the question whether the plaintiff could acquire title to the property before the execution of the conveyance in his favour by Rajendra.
10. The last question for consideration is whether the plaintiff is entitled to recover possession of 11/2 bighas (the homestead land) on the ground of adverse possession.
11. The Court of first instance gave him a decree for 11/2 bighas on that ground, but on appeal the learned District Judge has disallowed it as the claim to the land by adverse possession was not stated in the plaint.
12. It is contended before us on behalf of the appellant that there is evidence on both sides on that question, that the defendants have not been prejudiced by reason of the omission to state that claim in the plaint or by reason of the omission to raise specific issue on the point, and that the plaintiff has succeeded in proving his title by adverse possession as found by the Court of first instance.
13. But the findings of the Court of first instance are not clear on the point. No doubt in one part of his judgment the learned Munsif says: 'The plaintiff has similarly acquired title by adverse possession in If bighas of land in the western part of plot No. 1', but in another part of his judgment he says: The plaintiff's daughters brought Section 9 cases against the defendants and some of their tenants for all the lands.'
14. It has been pointed out by the learned Vakil for the respondent that the Section 9 cases referred to the homestead land as well, and the learned District Judge has found that the matter (i.e., the question of adverse possession) was not in issue in the lower Court and so the defendants were not in a position to meet the case in which the learned Munsif gave a partial decree to the plaintiff. So that in the opinion of the learned District Judge the defendants would be prejudiced if the plaintiffs were allowed to succeed on the ground of adverse possession, even though some evidence might have been adduced in the course of the trial in support of their title.
15. In these circumstances, we are unable to interfere with the judgment and decree of the lower Appellate Court and this appeal must accordingly be dismissed with costs.