G.N. Prasad, J.
1. This is an appeal from the decisions of Choudhary, J. in F. A. No. 357 of 1951. The appellant, who was also the appellant before Choudhary, J., is defendant No. 1 in a suit for partition instituted in 1949 by the two plaintiffs, father and son. The father Manku Prasad Singh, however, died during the pendency of the First Appeal.
2. The property of which partition is sought is a house situated in Mohalla Muharrampur Bhanwar Pokhar, in the town of Patna, bearing Old. Holding No. 101 and New Holding No. 153, within Circle No. 14, of the then Patna City Municipality. The plaintiffs (now the sole plaintiff Sambhu Prasad Singh) claim -/8/- annas share in the disputed house and want their share to be carved out and allotted to them exclusively. It has been alleged in the plaint that the remaining -/8/- annas share to the house belongs to the defdts and that the plffs and the defendants have been in joint possession and occupation of the same as co-sharers. It has further been alleged in the plaint that on account of the house remaining joint, there has been apprehension of conflict relating to "shares to the repair and occupation thereof" and that of late due to ill-feeling" there is apprehension of dispute in the possession and occupation of the plaintiffs and the defendants". It is said that on behalf of the plaintiffs a proposal was, therefore, made for partitioning the house amicably, but the defendants have been putting it off, and hence the necessity for instituting the suit.
3. Defendant No. 1 is the widow of Baijnath Pd. Singh alias Nanu Babu, who died sometime in 1948, and defendant No. 2 is his first cousin. Defendants Nos. 3 to 7 are the sons of defendant No. 2.
4. The relationship between the parties will appear from the following genealogy which is not in dispute.
RAJ KUMAR SINGH
= RESHMI KUER
_____________________________________________________________ | | | | Lalji Singh Amar Singh Ramji Singh Raghunandan S ingh
_______________________ | = Patreja Kuer | | | | | Kamaldhari
Sdba Foujdar Balkeshwar | | Deonath. | Kamta Pras ad.
______________________________________________________ | | | Nanku Pd. Singh Sonadhari Girwar Dhari (pltff. No. 1). | | | Tarkeshwar Pd. Baijnath Pd. Sambhu Pd. Singh alias alias Nanu Babu (pltff. No. 2). Daljeet (died in 1948) (Defdt. No. 2). = Phul Kumari
Sons (Defdt. No. 1).
(Defdts. Nos. 3 to 7).
5. The suit was contested both by defendant No. 1 and by defendant No. 2, but on identical please which in substance are:
(1) That the plaintiffs have no title over the house in question.
(2) That whatever interest they had therein, had been relinquished by them in favour of the defendants on receipt of the proportionate price for the house.
(3) That even assuming that the plffs. had title over the house, it was lost by adverse possession since the defendants have been in exclusive possession over the entire house openly, uninterruptedly and peacefully, to the exclusion of the plaintiffs, for more than twelve years after an open assertion of exclusive title made by their predecessor-in-interest, Baij Nath Pd. Singh and Sonadhari Singh; and
(4) That the suit as a simple suit for partition without seeking declaration of title was not maintainable.
6. The trial Court negatived all the pleas taken in defence and decreed the suit for partition, holding that the plaintiffs had -/8/- annas share in the disputed house.
7. Against the decree or the trial Court, separate appeals were preferred in this Court one by defendants Nos. 2 to 7, which was registered as F. A. No, 153 of 1951, and the other by defendant No. 1, which was registered as F. A. No. 257 of 1951. Both the appeals were heard together by the learned Single Judge, and the points raised therein were:
(1) Whether the plaintiffs had any title to the house in question:
(2) Whether that title was lost to the plaintiffs by adverse possession of the defendants: and
(3) Whether the suit for mere partition was maintainable without any prayer for declaration of title. The finding of the trial Court to the effect that the plaintiffs did not relinquish their Interest in favour of the defendants was not challenged before the learned Single Judge. The learned Judge having decided all the three points urged before him in favour of the plaintiffs, and as such having upheld the decree of the trial Court, two appeals under Clause 10 of the Letters Patent were preferred against his judgment. The appeal of defendant No. 1, which was numbered as L. P. A. No. 119 of 1998, is the present appeal. The appeal filed by the remaining defendants was numbered as L. P. A. No. 120 of 1958, but it was not proceeded with and it stood dismissed.
8. Broadly speaking, two points arise for our determination:
(1) Whether any title was ever acquired by the plaintiffs over the disputed house; and, if the answer to this question is in the affirmative, then,
(2) Whether or not their title was extinguished by reason of the defdts. remaining in adverse possession of their interest for more than twelve years prior to the institution of the present suit.
9. For a proper determination of the question of title, it is necessary to refer to Ext. 1, which is a registered document dated the 20th March, 1915, and has been described as a "Deed of agreement by way of relinquishment of claim by Suba Singh and others", because the entire claim of title of the plaintiffs in the disputed house is based upon this document. The parties to the agreement contained in Ext. 1 constituted three groups. In the first group were Suba Singh, Foujdar Singh, and Balkeshwar Singh (for self and as guardian of his son Deonath Singh), that is to say, the heirs of the oldest brother Lalji Singh. They were executants Nos. 1 to 3 of the deed Ext. 1. In the second group were the members of the branch of the youngest brother Raghunandan Singh, namely, Raghu Nandan Singh himself as executant No. 4 and Kamaldhari Singh (for self and as guardian of his minor son Kamta Pd. Singh) as executant No. 5. In the third group were Amar Singh (for self and as guardian of the minor grandson Baij Nath Prasad Singh alias Nanu Babu, Girwardhari Singh having died) Sonadhari Singh (for self and as guardian of his minor son Tarkeshwar Prasad alias Daljit, present defdt. No. 2 who was then a minor) and Nanku Pd. Singh (Plaintiff No. 1), who had previously been adopted as her son by Mosst. Patreja Kuer, the widow of Ramji Singh. Amar Singh, Sonadhari Singh and Nanku Singh were executants Nos. 6 to 8 of the deed Ext. 1.
The precise nature of the family dispute which was resolved by the parties by entering into this deed of agreement (Ext. 1) appears clearly from the recitals contained therein. The recitals show that conflicting claims were being made by the three sets of the executants as to whether they were all joint or separate in status. The stand of executants Nos. 1 to 3 was that all the eight executants were members of a joint family and as such the properties standing in the names of individual members of the family, including these standing in the names of certain female members thereof, belonged to the joint family. Contrary to this, the stand taken by executants Nos. 4 and 5 was that all the four sons of Rajkumar Singh had become separate and as such executants Nos. 1 to 3 were separate from the other executant and executant. Nos. 4 and 5 were also separate from the other members of the family, and likewise, executants Nos. 6 to 8 were separate from the rest of the family. But in spite of making the allegation of separation, executants Nos. 4 and 5 had put forward their claim at the time of the survey and settlement operations to certain properties owned and possessed by executants Nos. 1 to 3. Executants Nos. 6 to 8 also had made allegation of separation, but they were also claiming certain properties which stood in the names of the two ladies, Mossomat Reshmi Kuer and Mossomat Patreja Kuer, to the exclusion of executants Nos. 1 to 5. It was in this back-ground that it was recited in Ext. 1 as follows:
"Signs of ill feeling developed among us, the executants Nos. 1 to 8, and at the time of survey and settlement operations, dispute in connection with the properties arose. On account of dispute, wrong statements and claim were made, on account of which the names of some of us, the executants, were recorded in a wrong manner in the record of rights and in the office of the Land Registration Department, in respect of some of the properties having regard to the real state of affairs and title. At the time of the survey and settlement operations etc., the claims and allegations of us, the executants Nos. 1 to 3, were that we, the executants, are all members of the joint family and the properties standing in the names of a certain member of the family as well as those in the name of certain female member of the family, belong to the joint family. Contrary to this, the claims and allegations of us, executants Nos. 4 to 5 were that all the four sons of Raj Kumar Singh became separate and that executants Nos. 1 to 3 always continued to remain separate from the (other) executants and executants Nos. 4 and 5, separate from the (other) executants and executants Nos. 6 to 8 separate from the other executants, but in spite of this allegation of separation, executants Nos. 4 and 5, on account of dispute, made claim contrary to the real state of affairs with respect to certain properties owned and possessed by executants Nos. 1 to 3, and executants Nos. 6 to 8 also made allegations and claim of separation and it was alleged that executants Nos. 1 to 5 neither had nor have any connection and concern with the properties, which were and are in the names of Mosst. Patreja Kuer and Mosst. Reshmi Kuer, although no party was member of a joint family, nor was any property joint. As the dispute among us, the executants is contrary to the real state of affairs, and in case the said dispute continues, there is apprehension of considerable loss and damage to us, the executants, therefore, on the advice of the well-wishers of the parties and of the respectable persons and on the advice of the legal advisers of the parties, as also with a view to set at rest all kinds of dispute, it was settled that all the disputes should be put to an end by executing a deed of agreement by way of a deed of relinquishment of claims (Ladavi) and the property, which is actually owned and possessed by a certain party, should be declared to belong to that party exclusively, and as a matter of fact, the family of us, the executants, is separate, and the property, which stands in the name of a certain person, has been purchased from his or her funds, and in respect of his or her name should continue to remain entered in the Land Registration Department etc., and the name should be entered, if the same is not entered, and the other parties totally gave up their claim with respect thereto.. ."
Then follow four paragraphs setting out which property belongs to which of the various members of the family, and that bas been further indicated in four separate schedules at the end of the document. In the concluding portion of the recital, it has been stated;
"In view of the real state of affairs, title and, possession and occupation, each party has accepted and agreed to title and possession and occupation of the other party, under this deed of agreement. Now there is no dispute of any kind, whatsoever. In fact, we are separate among ourselves, and the property belongs to the main in whose name it stands, We, the executants, therefore, on executing this deed of agreement by way of relinquishment of claims, declare that the property, which belongs to a particular party and is mentioned as such in this deed, belongs to and shall belong to him, and continue to remain in his possession and occupation. Others neither had, nor have, nor shall have any title or possession and occupation in any manner and on any allegation. All this deed of agreement by way of relinquishment of claims is and shall be binding upon all the parties and no party either have or shall have the right to go against the terms of the agreement by way of relinquishment of claim, in any manner and on any allegations......"
10. The disputed house has been referred to in the third Paragraph of the deed (Ext. 1) in the following terms:
"Besides these properties, one house situate in Mauza Rajipur, and one house situate in Mohalla Bhaur Pokhar thana Bakarganj, one of the quarters of Patna Town, belongs to us, the executants Nos. 6 to 8 and the same are owned and possessed by executants Nos. 6 to 8, and the consideration money of these properties had been paid out of the khas money of executant No. 6. Other parties have no connection and concern with the same."
The properties accepted as belonging to executants Nos. 6 to 8 have been specified in Schedule No 3. Item No. 5 of the said schedule is in respect to the Rajipur house and it has been mentioned that half share therein belongs to executants Nos. 6 and 7 and the remaining halt belongs to executant No. 8. In regard to the disputed house, item No. 6 of Schedule 3 recites;
"Out of the sixteen annas house situate in Mohalla Mohrampur Bhaur Pokhar, thana Bakarganj, one of the quarters of Patna town, one half is owned and possessed by executants Nos. 6 and 7, and the other half share in the said house belongs to executant No, 8. Circle No. 14, Holding No. 101".
11. While both the Courts have accepted the plaintiff's case on the question of title, they have arrived at their conclusions from two different standpoints. The view taken by the trial Court was that the document Ext. 1 was not a deed of transfer, but it affirmed the antecedent title of Nanku in the house. The trial Court observed;
"It is clear from the deed that those properties were allotted to a particular party which were owned by him and were in his possession, fn other words, what has been done in this deed is that the remaining co-sharers have relinquished all interest in the properties which was (were) owned and possessed by a particular co-sharer."
This view, however, is patently wrong. There is no basis for making an assumption that Nanku (plff. No. 1) had some antecedent title in the house. Undoubtedly, it was the self-acquired property of Amar Singh. But even if it were to be assumed that after his acquisition, Amar Singh had at some stage before the execution of the deed (Ex. 1) blended this property with his other joint family properties, still Nanku must have ceased to have any title therein when he was adopted as the son of Ramji Singh and had ceased to be a member of the joint family of Amar Singh. The learned Single Judge has remarked that there is nothing to show whether he was adopted before after the acquisition in question; but that would make no difference, because if the adoption took place before the house was acquired by Amar Singh, Nanku could not have acquired any interest therein
If, however, the adoption took place after the acquisition in question, even then Nanku must thereafter have lost all interest in the properties belonging to the joint ramify of Amar Singh It is, however, quite clear from the document (Ext 1) itself that the adoption had taken place sometime before its execution in March 1915, inasmuch as therein Nanku was described as the adopted son of Ramji Singh The body of the deed also contains a recital to the effect that Ramji Singh had died leaving behind his widow Mosst. Patreja Kuer and his adopted son Nanku Prasad Singh executant No. 8. It is manifest, therefore that in either view, Nanku had no title to the disputed house until the deed (Ext. 1) came into existence. In other words, he had no antecedent title to the house. That being so, the title of the pltfs cannot be upheld unless Ext. 1 operated as a deed of transfer with respect to -/8/- annas share in the house in favour of Nanku
12. The learned Single Judge also seems to have proceeded upon the footing that the plaintiffs had some antecedent title over one half of the house in question, which had been admitted in the deed (Ext. 1), both by Amar Singh and by the defendants. The learned Judge has, however, held that even if it be assumed that the plffs had no anterior title to the house they acquired a title over half of the house under the document (Ext. 1). According to the learned Judge, Ext. 1 is a deed of family arrangement, and not a mere deed of Ladavi, and by this document all the. parties interested in the house acknowledged the title of the plaintiffs to the one half of it, and as such "the plaintiffs acquired a title over the same under this document." It is the soundness of this view which falls for our consideration.
13. I have already pointed out that Nanku had no antecedent title on the date of the execution of the deed (Ext. 1) and it is, therefore, manifest that he could have acquired no title over one half of the house by mere admission of Amar Singh and the defendants contained in the deed (Ext. 1) Therefore, the plff's claim of title over the house can only succeed if Ext. 1 is upheld as a deed of family arrangement in relation to this property as between Nanku (executant No. 8), on the one hand, and Amar Singh and Sonadhari Singh (Executants Nos. 6 and 7), on the other.
14. This leads us to consider what is a family arrangement, and what are the tests to be applied for determining whether Ext. 1 was in the nature of a family arrangement Normally, a family arrangement is an arrangement entered into by the members of a family for the settlement of family disputes. But an arrangement for preservation of the family property or for the maintenance of peace or security of the family is also regarded as a family arrangement. Thus, for the validity of a family arrangement, it is not essential that a family dispute must be in existence. It is enough if such a dispute is apprehended, and, therefore, the settlement of some doubtful claim between the various members of the family may provide a good consideration for a family arrangement.
15. There is, however, another class of transactions which is recognised as falling within the category of family arrangement, and that is illustrated by the leading case of Williams v Williams, (1867) 2 Ch A 294 In that case one John Williams died leaving behind a will whereby, after making certain provisions for his wife, he gave all his property to his two sons John and Samuel in equal shares But the will was not admitted to probate as it was incomplete. After probate was refused, the elder brother declared that the invalidity of the will should make no difference, and that the property should be "not mine or thine, but ours". No agreement in writing was made, but for twenty years after the death of their father, the two brothers treated the property as their common property, and their widowed mother lived with them until her death without insisting on her rights in her husband's property. After the said period of twenty years, some differences arose between the two brothers, and the younger brother brought a suit For division of the property claiming half share therein, and relied upon the arrangement which had continued all these years as a family arrangement. In defence, the elder brother disputed that it was a family arrangement on the ground that there were neither any disputed rights or compromise of family differences, nor any mutuality in the arrangement. Repelling the defence put forth by the elder brother. Lord Chelmsford, L. C. observed:
"There was here no doubtful right to be compromised, no dispute between the brothers which was to be set at rest, no honour of the family involved; the Appellant was merely prompted by respect for his father's intentions and by his affection for his brother, both most excellent and praiseworthy motives, but scarcely sufficient to constitute such a consideration as would convert an act of kindness into a binding engagement. If, therefore, there had been no consideration ion for the Appellant's promise to share the freehold properly with his brother, I should have been disposed to hold that he could not be bound by it. But it appears to me that there is quite sufficient consideration to prevent its being a mere voluntary agreement, and that the Court will not be disposed to scan with much nicety the amount of the consideration. The borough English property, which belonged to Samuel, was of some, though of trifling value, and was brought by him into the common stock; and in a case of this kind some consideration may perhaps be found in the fact of Samuel leaving his share of the stock in trade in the business and continuing to carry it on instead of breaking up the concern. But there can be no doubt that the widow was a party to the whole arrangement, and the consideration moving from her must be taken into account. ... It seems to me that if valuable consideration is required in this ease to make the family arrangement binding, it is sufficiently provided by the widow agreeing to become a party to it, and relinquishing her rights for the purpose of carrying it out."
Sir G.J. Turner, L.J., came to the same conclusion observing:
"But I can see no want of mutuality in the agreement, for if binding on the one side, it would of course be binding on the other side also. Nor do I think there was any want of consideration. The Vice-Chancellor has, and I think correctly rested this part of the case upon the footing of the cases as to family arrangements. It was strongly argued for the Appellant that this case does not fall within the range of those authorities; that those cases extend no further than to arrangements for the settlement of doubtful or disputed rights, and that in this case there was not, and could not be, any doubtful or disputed right; but this, I think, is a very short sighted view of the cases as to family arrangements. They extend, as I apprehend, much farther than is contended for on the part of the Appellant, and apply, as I conceive, not merely to cases in which arrangements are made between members of a family for the preservation of its peace, but to cases in which arrangements are made between them for the preservation of its property. The re-settlement of family estates, upon an arrangement between the father and the eldest son on his attaining twenty-one, may well be considered as a branch of these eases, and certainly this Court does not in such cases inquire into the quantum of consideration."
Williams' case, (1867) 2 Ch A 294 is, therefore, an authority for the proposition that there may be a family arrangement even where there are no doubtful rights to be compromised or no dispute between the members of the family to be set at rest, nor the honour of the family involved. But for the validity of a family arrangement of this category, it is also essential that there must be mutuality in the agreement arrived at between the parties; that is to say, some consideration, howsoever small, must pass from the side of the person upon whom a right in property is sought to be, conferred, and mere love or affection between the members of the family is not enough.
16. On behalf of the plaintiffs, a number of decisions have been cited with a view to persuade us to hold that the agreement contained in Ext. 1 was in the nature of a family arrangement between Nanku and the members of Amar Singh's family.
17. The first case upon which the plaintiffs rely is the leading ease of Khunni Lal v. Gobin'd Krishna, 38 Ind. App. 87 (PC). There, the Privy Council had to pronounce upon the validity of a compromise entered into with respect to the properties of one Raja Ratan Singh in the following circumstances. Ratan Singh and his son Daulat Singh were the members of a joint Hindu family, but in 1845 Ratan Singh abandoned Hinduism and adopted the Mohammadan faith. Nevertheless, Daulat Singh advanced no claim that Ratan Singh had forfeited his rights in the family properties by reason of renunciation of the Hindu religion, and both the father and the son continued to remain joint until January 1851, when Daulat died leaving behind his widow Sen Kunwar and two daughters, Chhatar Kunwar and Mewa Kunwar. In September of the same year, Ratan Singh died leaving behind his widow Raj Kunwar and a daughter's son Khairati Lal.
After Ratan Singh's death, the name of his widow was recorded in the Collector's register in respect of his entire property. Sen Kunwar died in 1857 and Raj Kunwar died in the following year. In 1860, a compromise was entered into between Chhatar Kunwar and Mewa Kunwar, on the one hand, and Khairati Lal, on the other. By this compromise 81/2 annas share in the entire estate of Ratan Singh was allotted to Chhatar Kunwar and Mewa Kunwar, while the remaining 71/2 annas share was allotted to Khairati Lal, and the parties obtained possession of their respective shares in terms of the compromise. Chhatar Kunwar died in 1860 and the entire 81/2 annas share allotted to the two sisters came in possession of Mewa Kunwar, who remained in possession of it until her death which took place in 1899. In 1904, the heirs of Mewa Kunwar brought a suit to eject the defendants who were the transferees from Khairati Lal or his heirs, alleging that the compromise of 1860 inured only till the death of Mewa Kunwar and that thereafter the plaintiffs become entitled to 16 annas interest in the estate of Ratan Singh.
The suit was dismissed by the Subordinate Judge, but decreed on appeal by the Allahabad High Court. The High Court took the view that although the compromise of 1860 was "just and wise" and "perhaps the best arrangement that could be made", yet in effect it amounted to an alienation which the two daughters of Daulat Singh, in the absence of any legal necessity, were not competent to make. The defendants went up in appeal to the Privy Council, and their Lordships reversed the decision of the High Court holding that the compromise of 1860 was binding upon the plaintiffs. Their Lordships took into consideration the relative position of the parties as it stood when the compromise was entered into, and observed that the heirs of Daulat had no existing enforceable right to the share of Ratan Singh, and the entire property was recorded in the name of his widow, and that "under these circumstances the parties, under the advice of the District Officer, instead of engaging in a long litigation, arrived at a mutual settlement of their claims". The real nature of the compromise was expressed in the following terms:
"The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the Courts to uphold and give full effect to such an arrangement."
Their Lordships further held that:
"The true test to apply to a transaction which is challenged by the reversioners as an alienation not binding on them is, whether the alienee derives title from the holder of the limited interest or life tenant. In the present case Khairati Lal acquired no right from the daughters of Daulat, for 'the compromise', to use their Lordships' language in Rani Mewa Kunwar v. Rani Hulas Kunwar, 1 Ind App 157 at. p. 166 (PC), 'is based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledges and defines what that title is."
18. From the facts of Khunni Lal's case, 38 Ind App 87 (PC) set out above, it is manifest that a dispute with respect to the property of Ratan Singh was actually in existence or at least apprehended at the time when the compromise was entered into between the rival claimants. The compromise was upheld as a valid settlement of the dispute between the different members of the family on the assumption that each party had some claim or antecedent title of some kind which, but for" the compromise, would have to be decided by a competent Court. Therefore, it was not a case like one which is in consideration before us, in which there is nothing to show that at any stage prior to the agreement of 1915, either Nanku had put forward any claim or raised any dispute with respect to any of the properties belonging to Amar Singh or his family or the latter had raised any dispute with regard to the properties of Nanku. The present case, therefore, cannot be brought within the ambit of the Privy Council decision in Khunni Lal's case, 38 Ind App 87 (PC).
19. The learned Single Judge has referred to another decision of the Privy Council in Kedar Nath v. Ratan Singh, 12 Cal LJ 225 (PC). In that case the facts were that two estates, called Bohra and Sherpore, belonging to a joint Hindu family consisting of three brothers, Gayadin, Umraon and Ratan, were taken over by the Government in consequence of the annexation of Oudh by the Britishers. Subsequently, the Government restored one of the estates, namely, Sherpore to Gayadin, who, besides being the eldest brother, was the Karta of the family. The question arose whether Sherpore was the self-acquired property of Gayadin or the joint family property of the three brothers. It transpired that at the time of the preparation of the Khewat in respect of Sherpore, a declaration had been made by Gayadin that he and his brothers were joint, and the Khewat was prepared in 1860 in the names of all the three brothers in equal shares. It further transpired that Gayadin never disputed the right and title of his two brothers to a joint share in the property.
Besides, all the three brothers continued to remain joint until a year or a year and a half before Gayadin's death, which took place in January, 1869. Gayadin's widow died in 1896, and in 1900, Umrao brought a suit in which he asserted that Sherpore was the self-acquired property of Gayadin and that he had acquired title to a portion thereof as his next reversionary heir. The claim of Umrao put forward in the suit was negatived by their Lordships of the Privy Council. It was held that although the Govt. grant was to Gayadin alone, yet it must be inferred that under a family arrangement, all the three brothers had become jointly entitled as members of an undivided Hindu family to the estate in suit, since Gayadin had never disputed the right and title of his brothers to a joint share in the property. This case, however, is of no assistance in the decision of the present case, because even if Gayadin alone had received the grant, he never treated it as his separate property and he allowed it to be recorded as the joint property of all the three brothers. In the present case, on the other hand, Nanku was not a member of the joint family of Amar Singh, at least at the time when the agreement Ext 1 was entered into.
Therefore, even if Amar Singh may have treated the disputed house as a property belonging to his joint family, it was a property belonging to the Joint family of Amar Singh consisting of himself, Sonadhari and Baijnath. In these circumstances, Nanku could not possibly have acquired any share in the disputed house in the absence of a valid document of transfer executed in his favour by the members of the joint family of Amar Singh Ext. 1 was certainly not such a document of transfer in favour of Nanku Singh. Nor it could operate as a deed of gift in favour of Nanku, for the simple reason that there could be no valid gift of an item of joint family property, Nanku also, apart from Ext. 1, could raise no claim to any share in the disputed house and, in fact, he had never raised any dispute or claim in this regard which could possibly have been resolved by any family arrangement entered into between him and the members of the family of Amar Singh. Upon the authority of Kedar Nath's case, 12 Cal LJ 225 (PC), I am, therefore, unable to uphold the title of the plaintiffs on the footing that Ext. 1 was in the nature of a family arrangement arrived at between executants Nos. 6 to 8 of the deed in relation to the disputed house.
20. The learned Single judge has also referred to a Bench decision of the Calcutta High Court in Helan Dasi v. Durga Das, 4 Cal LJ 323. In that case certain properties left by a father were divided through arbitrators between his younger son and the wife of his elder son since the latter happened to be a leper. Later on, the elder son purported to make a gift of his share in the properties to his wife, who instituted a suit for declaration of her title and for recovery of possession over half share in the properties. Her claim was resisted by the defendants on the ground that since her husband was a leper, she was not entitled to any share in the properties on partition. Her claim, however, was upheld by the High Court on the ground that the partition of the properties effected through the arbitrators was in the nature of a family arrangement. Rampini, J. observed that it was a case in which there was undoubtedly a dispute between the two brothers as to the right of the elder brother to inherit the properties which were referred to arbitration and it was resolved by the division of the family properties between the two brothers notwithstanding the fact that the elder brother was a leper and incapable of inheriting. Such a view was taken by Rampini, J., rightly, if I may say so with respect, because unless there was an existing dispute, there could have been no occasion for making a reference to arbitration.
It was, therefore, a case of settlement of existing "disputes between the members of the family which undoubtedly operated as a valid family arrangement. The other member of the Bench, Mookerjee, J., however, proceeded upon the footing that there was no proof that any dispute was actually subsisting at the time of the partition, but his Lordship thought that the partition could nevertheless be upheld as a family arrangement on the authority of (1867) 2 Ch A 294, in which it was held that the doctrine of family arrangement is not limited to arrangement for the settlement of doubtful or disputed rights, but also extends to cases in which arrangements are made between members of 'a family for preservation of its peace or for the preservation of its property. It is, however, clear that upon either view, Helan Das's case, 4 Cal LJ 323 can have no application to the facts of the present case, since there was neither any subsisting dispute between Nanku, on the one hand, and Amar Singh, Sonadhari and Baijnath, on the other, in relation to the share in the disputed house; nor there was any question of preservation of peace between the parties or of preservation of their property, in the sense in which these considerations arose in William's case, 1867-2 Ch A 294 because there is nothing to show that any action of Nanku or that of the members of his former family had held out any threat to the family peace or property which needed to be preserved by entering into the agreement Ext. 1.
21. Great reliance has, however, been placed on behalf of the plaintiffs upon a Bench Decision of this Court in Rai Kumar Singh v. Abhai Kumar Singh, AIR 1948 Pat 362 which has also been referred to by the learned Single Judge. It is necessary to remember the facts of the case, Rai .Bahadur Sukhraj Ray of Bhagalpur had two wives. From his second wife, Kiran Kumari, he had two sons Abhai Kumar and Jai Kumar. From his first wife who was dead, he had one son, Rai Kumar. During the lifetime of Sukhraj Rai, Rai Kumar and his minor son Sujas Kumar instituted a suit for partition impleading all the other members of the family, including Mossomat Genda Kumari, the mother of Sukhraj Rai, as defendants in the action. The plaintiffs claim one-fourth share in the joint family properties alleging that by reason of a special custom prevailing in the family, the females were excluded from inheritance or participation in any share in the event of a partition of the joint family property,
The existence and validity of the alleged custom was, however, stoutly denied on behalf of the defendants, who also raised various other disputes as to the extent of the jewelleries which could be treated as joint family property. Ultimately, a compromise was arrived at between the parties whereby the share of each of them was defined. The share of the plaintiffs was agreed to be 7/30th for the reason that Mossomat Genda Kumari relinquished her share in lieu of maintenance and the plaintiffs also relinquished their share in the properties which would be open to inheritance after the death of Kiran Kumari. Elaborate provisions were also made in the compromise petition for settlement of future disputes that might arise in connection with the partition of the joint family estate. A preliminary decree for partition was passed in accordance with the compromise petition, but shortly thereafter a dispute arose between the parties as to the share which the plaintiffs had got in the jewelleries belonging to the joint family. The stand taken by the defendants was that the plaintiffs were not entitled to 7/30th share in the jewelleries, but only to 1/5th share therein. Various other disputes also cropped up between the parties.
Ultimately the Court was asked to prepare the final decree in accordance with another compromise petition in which reference was made to the earlier compromise petition and it was stated that subsequent to the passing of the preliminary decree, many disputes relating to the parties and connected matters arose, but they had been finally determined either by the order of the Court or by mutual agreement amongst themselves. In accordance with the final adjustment between the parties, the final decree was drawn up in terms of the second compromise petition. One of the assets belonging to the family was a mortgage bond executed by Mahashay Amarnath Ghosh, and it was allotted to the share of Sukhraj Rai, Kiran Kumari, Abhai Kumar and Jai Kumar, who subsequently obtained a mortgage decree against Mahashay Amarnath Ghosh for about Rs. 30,00,000/-, and put the same into execution. Sukhraj Rai died during the pendency of the execution and thereafter serious disputes arose in connection with the substitution of his heirs
Rai Kumar took the plea that he was entitled to be added as one of the decree-holders on the ground that Sukhraj Rai died in a state of separation from his other sons and grand-son; but this plea was resisted by Abhai Kumar and Jai Kumar, who maintained that their father had died in state of jointness with them. The application of Rai Kumar for being added as a co-decree-holder was rejected by the executing Court, whereupon the matter came up in appeal to this Court before Manohar Lall and Mukherji, JJ. One of the questions that was raised before their Lordships was, whether the agreement embodied in the compromise decree could be regarded as a family arrangement or the settlement of a family dispute. The argument advanced on behalf of Rai Kumar was that it could not be regarded as such because there was no dispute as to title between the parties or any agreement arrived at between them by way of accepting the antecedent title of the parties to the properties. But the argument was rejected on the ground that there was a genuine dispute started by Rai Kumar who actually instituted the partition suit against his father and step-brothers, wherein he disputed that any share could be allotted to his step-mother and the grand-mother. Their Lordships pointed out that:
"..... it was in bona fide settlement of this and other disputes that cropped up between the members of the family that the agreement in question was entered into. I must, therefore, hold that this was a family settlement in which the plaintiffs took a large share of the family property by virtue of the independent title which was to that extent and by way of compromise admitted by the other party defendants. It can also be treated as a compromise of a doubtful claim set up by the plaintiffs with regard to their share in the properties which would have gone to the stepmother and the grand-mother."
Incidentally, no doubt, their Lordships also referred to Williams' case, (1867) 2 Ch A 294 and certain other cases of that class which proceeded upon the footing that a family arrangement may be upheld by the Court although there are no rights in dispute but if sufficient motive for the arrangement is proved. But the decision in Rai Kumar's case really proceeded upon the footing that it was a case of a family settlement of existing family disputes. In my opinion, it is impossible to bring the present case within the ambit of Rai Kumar's case, AIR 1948 Pat 362. As I have already said, there is nothing on the record to show that there was any dispute with respect to any property prevailing between Nanku, on the one hand, and Amar Singh, Sonadhari and Baijnath, on the other, which required settlement between them. There is also nothing to show that any doubtful claim of any kind was set up by the plaintiffs with regard to their share in any item of the properties belonging to the family of Amar Singh. Rai Kumar's case, AIR 1948 Fat 362 is, therefore, of no assistance to the plaintiffs' case.
22. The last case to which the learned Single Judge has referred is another Bench decision of this Court in Kauleshwari Kuer v. Suraj Nath Rai, 1957 BLJR 319: (AIR 1957 Pat 456). The learned Single Judge has quoted the following observations of Kanhaiya Singh, J. in that case:
"The existence of a family dispute is not the essential ingredient of a family arrangement, nor the settlement of doubtful or disputed rights is essential to the validity of a family arrangement. The preservation of family peace and the preservation of its property may very well form a good basis for a family arrangement. Nevertheless, there must be a situation of a contest or apprehension of some dispute in future which is sought to be bona fide resolved by the arrangement. The entire object of the family arrangement is to resolve or settle either some doubtful or disputed rights, either existing or likely to arise or for the maintenance of peace and harmony and preservation of the property".
23. A close examination of the facts of the case will, however, show that the decision of Kanhaiya Singh, J. supports the defts. rather than the plaintiffs before us. In that case, their Lordships were considering the effect of a compromise entered into in a title suit of 1905 which was instituted by Ranijatan Rai, the ancestor of the defts., against his cousin Baldeo Rai. Baldeo Rai had no son and, therefore, in the ordinary course, his property after his death would have devolved upon Ranijatan Rai. But Baldeo Rai took one Janki Rai in adoption and got all his properties mutated in the name of his adopted son. Under the compromise, Ram Jatan Rai obtained 8 bighas of kast land and half proprietary share in the properties of Baldeo Rai He was, however, not given the right of immediate possession over the properties allotted to him. The compromise decree provided that Baldeo Rai and his wife would remain in possession of the entire properties for their life and that Ram Jatan would be entitled to enter into possession of the land given to him after their death.
After the death of Baldeo Rai and that of his wife, a dispute arose between Janki Rai and the defendants, the sons of Ram Jatan, who in the meantime were permitted to enter into possession over the land given to their father under the compromise decree of 1905, Janki Rai instituted a suit in 1943 for recovery of possession over the said property alleging that the compromise decree of 1905 did not confer any title on Ram Jatan or his descendants because it was void for want of consideration and want of registration. The defence taken was that the compromise was valid and operated to confer a good title upon the defendants. The matter ultimately came before this Court and it was contended on behalf of the defendants that the compromise in the 1905 suit was in the nature of a family arrangement. But this contention was not accepted. Their Lordships referred to the reliefs which Ram Jatan had sought in the title suit of 1905 and pointed out that it disclosed no cause of action or raised no question which could be legally agitated, and observed:
"I think, the settlement of 1905 cannot be supported as a family arrangement. There was no dispute at all between Ram Jatan and Baldeo; there was no question of preservation of family peace or family property; nor was there any settlement of doubtful right or doubtful claim. It was a purely imaginary suit based upon grievances which had no foundation in fact There was no likelihood of any contest arising in future. The transaction between the parties was obviously not for the benefit of the family estate or of all the parties concerned. As laid down in the case of Williams above referred to, the Court will support as a family arrangement any transaction between members of the same family which is generally for the benefit of the family estate or of all the parties concerned. In the instant case, all the benefits went to Ramjatan. Baldeo derived no benefit from the compromise. It was not a case where any benefit accrued to the family estate generally. This arrangement does not fall under the category of family settlement. Then, the important question is: what was the consideration for this arrangement? On the question of consideration, there is no difference of opinion. There is unanimity of judicial opinion that there must he some consideration for the family arrangement, other than love and affection, the nature of that consideration varying with different cases. Forbearance from litigation, bona fide settlement of disputed claims or rights and preservation of peace may constitute a good consideration for a family arrangement. Where there is a consideration, it is not for the Court to scan with much nicety the amount of the consideration. The quantum of consideration is of little consequence. Where there is a consideration howsoever small and howsoever disproportionate to the respective claims of the parties, a family arrangement will not be called in question for want of consideration. In the present case there was no consideration at all in any shape or form. There was no question of 'give and take'. Ram Jatan got the land but Baldeo received nothing from him."
Their Lordships further pointed out;
"No family friction and no differences of any sort existed between the parties at that time. When maintenance of family peace and harmony forms the basis of the arrangement, it implies that there was some trouble existing or anticipated which was calculated to disturb the family peace. But the friction or disharmony which is sought to be prevent ed must be real and bona fide and not imaginary. If it were not so, then a settlement between two members of the family of any claim, however baseless and false, will be regarded as a family arrangement. In my opinion, the settlement of 1905 cannot be supported on the principle of family arrangement"
24. These observations apply with equal force to the case set up before us on behalf of the plaintiffs, inasmuch as so far as Nanku and the members of the family of Amar Singh were concerned, there was a total want of consideration. Amar Singh's family got nothing from Nanku in return for the title in the house which was sought to be conferred upon him. There was no dispute or difference between them either existing or anticipated; nothing which could have threatened their family peace or harmony, which could be regarded as real and bona fide, and whatever dispute there was at the time was from the members of Lalji's branch. In that dispute. Nanku was not arrayed against Amar Singh or other members of his family. There is also nothing to show that Nanku had taken up a situation of contest or an made which either threatened or tended to threaten the maintenance of peace and good will between him and the members of Amar Singh's family. It has also nowhere been suggested that any property was brought into the common stock in which Nanku was interested to the exclusion of the members of Amar Singh's family.
25. Paragraph 3 of Ext. 1, no doubt, shows that sixteen annas proprietary interest in Mouzas Ajda and Shikaria was acknowledged by all the parties, including Nanku, as belonging exclusively to Amar Singh, Sonadhari and Baijnath, and in Paragraph 4 thereof, sixteen annas proprietary interest in Mauza Bara Rampur Faridpur, besides certain other property was acknowledged by the parties as belonging exclusively to Nanku Singh. Paragraph 3 read with Schedule 3 further shows that the Rajipur house was acknowledged by the parties as belonging to executants Nos. 6 and 7 and executant No. 8 in equal shares. But merely from this circumstance, it cannot be inferred that there was any existing or apprehended dispute with regard to those properties as between executants Nos. 6 and 7 and executant No. 8 inter se, which was resolved by the agreement contained in Ext. 1. The recitals of Ext. 1 are clear to the effect that the only dispute which prevailed at the relevant time was branchwise, one branch represented by the heirs of Lalji Singh, another by the branch of Raghunandan Singh and the third by the branch of Amar Singh.
In that dispute Nanku did not set up any contest against the members of the family of Amar Singh either in his own right or in the capacity of an heir of Ramji Singh or his widow Patreja Kuer. Nanku had deposed in the present trial as P. W. 1, but he nowhere said that he had set up any dispute with regard to any item of property against Amar Singh or Sonadhari; nor he said that Amar Singh or Sonadhari had ever denied his right to any of the properties which were acknowledged in Ext. 1 as belonging to his exclusively. On the contrary, he deposed in clear terms that the only reason for the execution of the Ekrarnama, meaning Ext 1, was that Suba Singh was claiming one-third share in the entire property. He further admitted that the possession of any property did not change after the execution of the said document.
It is manifest, therefore, that the acknowledgement of exclusive title of executants Nos. 6 and 7 to certain property, and, likewise, acknowledgement of exclusive title of executant No. 8 to certain other property, as mentioned in paragraphs 3 and 4 of the document Ext. 1, was not by way of settlement of any existing or apprehended dispute between Amar Singh and Sonadhari Singh, on the one hand, and Nanku, on the other. Therefore, this circumstance can, by no stretch of imagination, be regarded as providing a consideration for conferring any title to Nanku in the disputed house. For the reasons which I have given above, I am clearly of the view that the agreement contained in Ext. 1 does not satisfy any of the tests of a valid family arrangement in relation to the disputed house. It follows that the plaintiffs acquired no title to it by virtue of Ext. 1, which is the only basis of their claim in the present action. The suit is, therefore, liable to fail on this ground alone.
26. On behalf of the plaintiffs, however, reliance was placed upon the case put forward by defendant No. 1 in paragraph 12 of her written statement, wherein she pleaded:
"That B. Amar Singh realised that there was no potency in the transaction referred to above in respect of the house in dispute and therefore he advised B. Sonadhari Singh and others to pay up the price of 8 annas share in the house in dispute to the plaintiff No. 1 and advised the plaintiff No. 1 also to accept the money equivalent because the plaintiff No. 1 could not be clothed with legal title to the property in dispute and the plaintiff No. 1 also having realised the hollowness of his title accepted the money equivalent in cash in the lifetime of B. Amar Singh and as such 16 annas house in dispute with the land is exclusively owned, possessed and held by these defendants and so long as B. Baijnath Pd. Singh was alive he was in joint possession with other defendants"
In this connection reference was also made to the written statement (Ext.B) filed by Sonadhari Singh, Daljit Singh (defdt. No. 2) and Baijnath Pd. Singh (husband of deft. No. 1) in T.S. No. 33 of 13:33, to which further reference will be made hereafter. In paragraph 23 of the said written statement (Ext. B), a similar case was set up on behalf of the defendants, namely, that the plaintiffs (Nanku and others) had parted with their interest in the Bhawar Pokhar house on accepting its proportionate price in cash during the life time of Amar Singh and thereafter the entire house was exclusively owned and possessed by the defdts. It was, therefore, urged that the plaintiffs' title to half share in the disputed house was admitted both in the previous litigation and in the present one, and as such, the plaintiffs' title cannot be defeated unless it is established that they had really parted with their title by accepting the proportionate price of the house as alleged. It is contended that this part of the defendants' case having failed in both the Courts it must be held that the plaintiffs' title to the house is admittedly subsisting.
In my opinion, the case set up by defendant No. 1 in paragraph 12 of her written statement is really in the nature of an alternative case put forward by her on the assumption that the Court might hold, as in fact the two Courts have held, that Ext. 1 operated to confer valid title upon the plaintiffs in the disputed house. This is quite clear from the case put forward by her in the immediately preceding paragraph of her written statement, wherein she pleaded that no legal title was acquired by plff. No. 1 in the disputed property since the so-called deed of family arrangement was not a document of title and that it remained a mere paper transaction so far as the disputed house was concerned. Paragraphs 11 and 12 of the written statement must be read together and the case set up in the earlier paragraph cannot fail merely on the ground that an alternative case was set up in the later paragraph. So far as the case put forward by the defendants in paragraph 23 of the written statement (Ext.B) is concerned, it is impossible to construe it as an admission of the plffs.' title in the disputed house
In effect, the said title was not admitted but rather denied, though the denial was made on a ground which has not been substantiated. But even assuming that it constituted an admission of title on behalf of the defendants, it does riot conclude the matter and it is open to the defdts. to show that the admission was not correctly made or that it had been made only for the purposes of the 1933 suit. If the plffs. had really no title to the house prior to 1933. as the defdts. have shown in the present case, then they cannot be said to have acquired any title to it on mere admission of the defdts. in Ext.B. Such an admission cannot stop the defendants from claiming exclusive title to the disputed house. It is certainly open to the Court to see whether the alleged admission contained in Ext. B was correctly made, and in my opinion, it has been proved to be incorrect, because the only basis of the plaintiffs' alleged title claimed in the present suit is the agreement contained in Ext. 1, and I have shown that Ext. 1 did not confer any valid title upon the plffs. in the disputed house.
It is not the plff's. case that they had acquired title to the house at any subsequent stage either by adverse possession or in any other manner. Paragraph 23 of the written statement (Ext.B) is, therefore, of no avail to the plffs. and it does not support their case on the question of title. I will presently show that in Ext.B, the defendants made a clear assertion of hostile title in the entire house against the plaintiffs and to their knowledge. I, therefore, hold that the plaintiffs have failed to prove that any title was ever acquired by them over the disputed house.
27. In view of my finding on the question of title, it is hardly necessary to enter into a discussion of the further question, namely, whether the alleged title of the plaintiffs was extinguished by adverse possession. Since, however, the concurrent finding of the two Courts on the question of adverse possession was strenuously assailed before us on behalf of the appellant, I consider it appropriate to record my own finding on this point. I must, however, make it clear that the entire discussion that follows proceeds upon a mere assumption that valid title was acquired by the plaintiffs by virtue of the agreement Ext. 1.
28. For a proper appreciation of the question of adverse possession, it is necessary to state certain relevant facts. The earliest record pertaining to the disputed house is the Municipal Assessment Register (Ext.D) of the Patna City Municipality for the year 1900-1901. This document shows that Amar Singh was recorded in the Municipal papers as the sole owner of the house. The next Municipal record is Ext.E, which is an extract from the Demand Register of the Municipality for the year 1915-16. In this document, the persons recorded as the owner or occupier of the disputed house were Sonadhari Singh and Baijnath Singh, who was then a minor. It may be mentioned here that this was the earliest Municipal record subsequent to the death of Amar Singh, which appears to have occurred shortly after the execution of the Ekrarnama Ext 1, and the important point to be noticed is that in spite of the recital in Ext.1 with regard to the disputed house in favour of Nanku, he was not recorded as the owner or occupier in respect of the disputed house in the Municipal Register (Ext. E).
As a matter of fact, in course of his evident Nanku (P.W. 1) virtually admitted that his name was never recorded in the Municipal papers in respect of the house at least until 1932. He further admitted that he did not even apply for the mutation of his name in the Municipality after the execution of the Ekrarnama, though he added that he did not tula: this step because he was living jointly wish Baijnath and Tarkeshwar, It will he seen hereafter that his case that he was living jointly with Baij Nath and Tarkeshwar was false. The document Ext. 1 itself shows that he had ceased to be a member of the family of Baijnath and Tarkeshwar alias Daljit and he had been allotted various other properties to his exclusive share. Each set of the executants was, under the terms of Ekrarnama, entitled to have his name duly recorded in the relevant public record. In regard to the proprietary interest in Mauza Bara Rampur Faridpur mentioned in paragraph 4 of Ext. 1, it was specifically mentioned in the deed that Nanku had the right and authority to get his name recorded in the Land Registration Department in place of his adoptive mother Patreja Kuer.
In these circumstances, the natural conduct of Nanku or the plaintiffs should have been to insist upon his or their name or names being recorded in the Municipal papers shortly after the Ekrarnama (Ext. 1), and not to rest content with the record of the names of only the heirs of Amar Singh, therein. It is manifest that at least for 17 years after the execution of Ext. 1, the plaintiffs took no step to assert their right in the disputed house. Nanku had figured as a witness in a Title Suit of 1918 (vide Ext. L), and therein he had admitted that after ho was adopted by Ramji Singh, his connection with Amar Singh's family had ceased. No doubt, in Ext. L, he also stated that Bhawar Pokhar house belonged to him and to Amar Singh and that Lalji and Raghunandan had no concern with that house, but there also he admitted that it was Sonadhari and Baijnath who were in possession of the said house. It cannot be said that cordial relationship had prevailed between the parties all these years. On the, contrary, it is clear that a regular dispute had arisen between them which culminated in Title Suit No. 33 of 1333.
29. The title suit of 1933 did not relate to the disputed house, hut to certain other properties. In their plaint (Ext. A), the plaintiffs, however, made a reference to the disputed house in the following term:
"The plaintiffs and the defendants have got their Deorhi at Mauza Rajipur, Paragana Masaurha, District Patna and they (the plaintiffs and the defendants) have got one kita house at Bankipur Mohalla Bhawar Pokhar, where defendant No. 3 used to read and after his success at the law examination, he is practising at the bar"
But the defendants sharply reacted to this part of the plaintiffs' case, and while denying their title, they set up their own exclusive title to the disputed house in paragraph 23 of their written statement (Ext. B) in the following terms:
"No business, messing, property and monetary transactions whatsoever continued to remain joint from the beginning of 1324 Fasli or from 1324 Fasli to 1337 Fasli. All the allegations to the contrary are quite wrong and false. The plaintiffs took in cash the, proportionate price of the house situate in Mahalla Bhawar Pokhar, one of the quarters of Patna town, during the life time of Amar Singh and the entire sixteen annas house and the land situate at Mahalla Bhawar Pokhar are the exclusive properties owned and possessed by these defendants, and they have been in possession of the sixteen annas share of the same without the copartnership of others, and their names are registered in the Municipal Office in respect of the sixteen annas share. All the allegations to the contrary are quite wrong."
In other words, it was a clear declaration of hostile title on the part of the defendants and a total denial of the plaintiffs' title and possession over the disputed house. It was also made to the knowledge of the plaintiffs because the plaintiffs must be deemed to be aware of all the pleas put forward by the defendants in their written statement (Ext. B). The question of title to the disputed house was, however, not gone into at the trial of the suit as will appear from Ext. I, which is an extract from the order-sheet of that suit which was ultimately decreed in favour of the plaintiffs. But the defendants came up in appeal to this Court in F, A. No. 108 of 1937, in which the parties came to terms and filed a compromise petition (Ext. 4) dated the 9th May 1941. With regard to the disputed house, it was stated therein that the dispute being not the subject matter of suit is not the subject matter of the compromise."
In other words, no decision was arrived at in the 1933 litigation that the claim of exclusive title and possession over the disputed house so openly put forward by the defendants, was wrong or false. Even after the disposal of F. A. No. 108 of 1937, in accordance with the petition of compromise (Ext. 4), no step was taken by the plaintiffs to have their title declared by any competent Court until September 1949, when the present partition suit was instituted, wherein, for the first time, the plaintiffs came to Court with a plea that they still had half share in the house and that "the plaintiffs and the defendants have been in joint possession and occupation of the same as co-sharers", but they made no reference whatsoever to the assertion of hostile title which the defendants had made in the written statement (Ext. B).
30. The defendants have led evidence to the effect that they have been in exclusive possession of the disputed house ever since the death of Amar Singh which took place sometime in 1915. As against this, some evidence has been adduced on behalf of the plaintiffs with a view to show that they lived in the disputed house from time to time. It is, therefore, necessary to find out whether this part of the plaintiffs' case is true.
31. The deposing plaintiff (P.W. 1) stated in general terms that he was in possession of his share of the house since much before the execution of the Ekrarnama (Ext, 1) and was still continuing in its possession. He further said that whenever he came to Patna, he stayed in the disputed house and he had no other house in Patna. But he did not refer to a single occasion, prior to the institution of the 1933 suit, when he had stayed in the disputed house. On the contrary, he admitted that his name was never mutated in the Municipal papers for the house in question prior to 1932 and that he had no document to show that he ever lived in the house between 1915 and 1932. Even before the execution of the Ekrarnama (Ext. 1), he had ceased to be a member of the joint family of the defendants, and in his previous deposition (Ext. L), he had admitted as far back as in 1920 that Sonadhary and Baijnath were in possession of the disputed house. No doubt, he also deposed that he did not apply for mutation of his name in the Municipality after the execution of the Ekrarnama (Ext. 1) as he was living jointly with Baijnath and Daljit. But his own evidence shows that he was not living jointly with them at least until 1932. Admittedly, he never paid the Municipal taxes of the house; he did not know in what year water pipe and electric connections were taken in the house and what was the amount spent in taking them. He had no paper to show that he ever contributed any amount towards the repair of the house. He claimed to have paid Rs. 85 to Baijnath at the time of taking the water connection in the house, but he had no paper to substantiate this fact. He referred to the fact that he had maintained Bahis until 1929, wherein expenses in connection with the repairs were noted. But these Bahis were not produced, and the obvious conclusion must be that they were non-existent. On the other hand, there are a large number of Municipal receipts (Exts. G to G/35) extending over 1927 to 1949, which show that throughout this period the Municipal taxes were paid by Sonadhari and Baijnath or either of them.
The defendants have also brought on the record a number of receipts (Exts. H to H/48) which show that bricks and other building materials were purchased by Baijnath during the years 1931 to 1934. It is impossible to believe that although the plaintiffs had -/8/- annas interest in the house and also resided therein from time to time, yet they had no occasion ever to pay Municipal taxes or to purchase any building material for the repairs of the house. The evidence of P.W. 1 that he lived in the house until the commencement of the litigation in 1933 is practically uncorroborated by any other material on the record, and it is also inconsistent with the various circumstances to which I have referred There is one witness, however, Bhuneshwar Pandey (P.W. 2), who has claimed to be the Purohit of the parties, and who said that he had seen plaintiff No. 1 staying and residing in the house on a permanent basis until the death of his wife, which appears to have occurred in the disputed house in 1948-49.
But P. W. 2 cannot be competent to speak about the events which took prior to 1933 because he was aged 32 years when he gave his evidence in January 1950, and as such he was aged only 14 or 15 years in 1933. He has also not referred to any particular occasion prior to the deaths of plaintiff No. 1's wife and Baij Nath Babu, both of which had occurred at about the same time in 1948-49, when he had seen Nanku staying and residing in the house I have, therefore, no doubt in my mind that the plaintiffs never lived in the disputed house or exercised any act of ownership over it until the litigation of 1933.
32. I have also no doubt in my mind that the plaintiffs did not live in the disputed house for more than twelve years after the commencement of the 1933 litigation Nanku (P.W. 1) himself deposed that he lived in a house at Kadam Kuan during the pendency of Title Suit No. 33. But he also said that Bhuneshwar Pandey (P. W. 2) is his witness of the fact that he lived in the disputed house after 1933. It is, however, impossible to rely upon the evidence of P. W. 2 because I have grave doubts that he was the Purohit of the parties. He admitted that he could not give the name of Daljit's father; that he did not know how many children Nanku had and that he did not know the names of Nanku's father or grandfather. A family Purohit cannot be ignorant of these facts. However, the evidence of P. W. 2 is wholly insufficient to prove that the plaintiffs resided in the disputed house at any time prior to the deaths of Baijnath and Nanku's wife, both of which took place in 1948-49. On the other hand, the evidence of the plaintiffs' own witness Parbhu Narain (P.W. 4), a pleader and the next door neighbour, is clear and categorical that "Nanhku never lived in the house in question since the litigation in T.S. 33 of 1933 started and till it continued between the parties". It has been seen that the said litigation ended with the compromise in F.A. No. 108 of 1937 on the 9th May 1941. It must, therefore, be held that the plaintiffs were not in possession of the disputed house at least up till 1948-49.
33. The learned Single Judge has, however, relied upon the Fact that in the Municipal survey Khesra (Ext. 2), which was finally published on the 19th December 1933, the name of Nanku was recorded along with the names of Sonadhari and Baijnath as the occupier of the disputed house, Having regard to the provisions of Ss. 5 and 9 of the Bihar and Orissa Municipal Survey Act (I of 1920), the learned Judge has taken the view that;
"Baijnath Prasad Singh, being a lawyer practising in Patna would not have neglected to raise an objection to the inclusion of the names of Nanku Prasad Singh if really he had not been in possession of the bouse in question. It, therefore, appears that after the assertion made by the defendants as to the ouster of the plaintiff from the house in question, plaintiff No. 1 also acquired possession and showed acts of possession thereon.'
In view, however, of the clear evidence of P. Ws. 1 and 4, to which I have just referred, it is not possible to uphold this view. The learned judge has further observed that:
"This inference gains support even from the compromise that they filed in the first appeal as stated above in this Court which is exhibit 4 in the case. Though they left the question of title as to the house open, there is an indication in that petition that the plaintiff No. 1 and Baij Nath Pd. Singh, husband of defendant No. 1, both lived in the house in question. The compromise petition is supported by the affidavits of both these persons and both of them described themselves to be residing at that time at Bhaur Pokhar, Patna. It is an admitted fact in the case that apart from the house in question, the parties had no other house in Patna Therefore, this document clearly shows that plaintiff No. 1 was at that time living in the house in question."
But the mere statement in the affidavit accompanying the compromise petition (Ext. 4) cannot out weigh the positive evidence of P. Ws. 1 and 4, and particularly of P.W. 4, to which I have already referred. The only reason why such a statement was made in the affidavit seems to be, as the evidence of defendant No. 2 (D.W. 1) shows, that for 2 or 3 days the talks for the compromise took place in the disputed house. But that cannot show that the plaintiffs were living there at that time. The learned Judge has himself noticed that soon after filing the compromise petition (Ext. 4), Baij Nath and Daljit got only their own names recorded as assessees with respect to the disputed house in the Municipal Special assessment register (Ext. D/1) for the year 1942-43. In other words, Baij Nath or the defendants did not acquiesce in the fact that Nanku's name also was recorded in the Municipal survey Khesra (Ext. 2). The conclusion is, therefore, irresistible that as between 1915 and 1932, so also for more than twelve years after 1933, the plaintiffs were never in possession of the disputed house, and it was the defendants alone who had all along remained in exclusive possession and exercised acts of ownership over it
34. The evidence of the defendants witnesses, however, shows that the plaintiffs or the members of their family used to pay occasional visits to the disputed house. Defendant No. 2 (D.W. 1) has said that Nanku's wife stayed in the house for one or two days after T.S. No. 33 had been compromised. Gopi Nath Verma (D.W. 3) has deposed that sometimes Daljit and his other co-sharers "put up" in the house whenever they came to Patna in connection with their Court work or other works. Similarly, the other co-sharers of Baij Nath used to stay in it whenever they came to Patna. D.W. 3 had seen Nanku in the house twice or thrice within 15 years before the death of Baij Nath. Defendant No. 1 (D.W. 4) herself has said that Nanku paid several visits to her after the death of her husband. He came to the disputed house one day after her husband's death and stayed there for two days on that occasion. Defendant No. 2 was present at the time of her husband's death.
Nanku again came to the disputed house on the occasion of her husband's Sradh and stayed along with his wife for two days. For the third time Nanku came to her for the purpose of advising her to make settlement of certain land and she had requested him to negotiate for the settlement with tenants. Later on Nanku again came to her with the tenants and told her that he had settled every thing with the tenants. D.W. 4 has also spoken about a prior visit of Nanku's wife on the occasion of her husband's illness about 10 or 12 years before his death. According to D.W. 4, Nanku's wife stayed in the disputed house for 2 or 3 days on that occasion. On behalf of the plaintiffs, it was sought to be proved that Nanku was living in the disputed house at the time of Baijnatli's death, but again the evidence of P.Ws. 1 and 2 to this effect has been contradicted by P.W. 4 who said
"Nanku was not present at the time of the death of Baij Nath, which took place in the house in question. He came after his death. He lived in the house for ten or 12 days on that occasion and performed the Sradh of Baijnath. He came about five or six hours after the death of Baijnath.' He (P. W. 4) further said.
"Nanku came to this house in question on the occasion of the cremation of Baij Nath from some place in Patna".
It is obvious, therefore, that Nanku was not living in the disputed house at that time. Nanku (P.W. 1) also deposed that his wife fell ill and died in the disputed house sometime in 1948, and that during her illness she was treated there by eminent local physicians like Dr. T.N. Banerjee and Dr. Chakravarty. Upon these materials it was contended that the plaintiffs did visit the disputed house from time to time between 1933 and 1948-49. But it is equally manifest that all these were casual visits in the nature of visits of guests of the family of the defendants. Casual visits of this nature cannot be equated with visits which owners pay to their property and, therefore, they do not amount to exercising acts of ownership and possession over the property. It will be noticed that all these visits of the plaintiffs and members of their family were on special occasions, and every time they were of brief duration of 2 or 3 days. Such casual visits cannot be said to be in exercise of rights of ownership in the property with that conscious sense of ownership, and with that intention to maintain it, which the Courts in England call the animus possidendi and, therefore, they cannot have the effect of interrupting the running of adverse possession of the defendants, if otherwise the possession of the defendants amounted to ouster of the plaintiffs.
35. In the present case, the evidence is clear that the defendants had ousted the plaintiffs from the disputed house ever since 1915. Shortly after the execution of the Ekrarnama (Ext. 1), they got only their own names recorded in the Municipal Register (Ext. C) in spite of the fact that half interest in the property was conceded to the plaintiffs under the Ekrarnama (Ext. 1). For nearly 17 years thereafter, the defendants alone exercised acts of ownership over the property, and not the slightest attempt was made by the plaintiffs to assert their right therein. The conduct of the parties clearly shows that the plaintiffs were ousted from the disputed house for more than the requisite period of twelve years immediately following the execution of the Ekrarnama (Ext. 1). It was contended by Mr. Lal Narain Sinha that no assertion of hostile title was made by the defendants at any time prior to the filing of their written statement (Ext. B) and, therefore, the plaintiffs must be taken to have continued in possession of the property through the defendants until September 1933, but I am unable to accept this contention.
The plaintiffs must have been aware of the tact that they were not recorded in the Municipal papers with respect to the house and had never been called upon to contribute towards the maintenance or repairs and the improvements made in the house. In other words, the plaintiffs knew full well that during all these 17 years which immediately preceded the filing of the written statement (Ext. B), the defendants who were separate from them in mess and property were treating the entire house as their exclusive property and were not admitting that the plaintiffs had any interest therein On these facts, the Court would be justified in holding that the possession of the defendants was adverse to the plaintiffs for more than the statutory period subsequent to the execution of the Ekrarnama (Ext, 1). The fact that adverse possession may be inferred from such conduct of the parties is clear from the decision of the Privy Council in Govind Rao v. Rajabai, AIR 1931 PC 48.
36. The tact that the defendants had ousted the plaintiffs from the disputed house from the very inception is amply indicated by the stand which they took in their written statement (Ext. B). As a matter of fact, long before the written statement (Ext. B) was filed by the defendants, they had completed their title to the entire house by adverse possession. This is clear from the emphatic manner in which they put forward their claim to the house in Ext. B. That the defendants were openly treating the entire property as their own is further apparent from the fact that within one month of filing the written statement (Ext. B), Baij Nath and Daljit sold away a portion of the land appertaining to the house to one Kamal Narain Pandey under a registered sale deed (Ext. C) dated the 12th October 1933. The plaintiffs never made any grievance of the fact that they were not asked to join as executants in this sale deed (Ext. C), and in the present suit also, they have not claimed that they had any interest in the vended land which had not passed on to the vendee under the sale deed (Ext. C). The plaintiffs did not even ask for partition of the land covered by the sale deed (Ext. C).
37. It was, however, contended before us by Mr. Lalnarain Sinha that the action of Nanku in getting his name mutated in the Municipal Survey Khesra (Ext. 2) in December 1933 had the effect of interrupting the adverse possession of the defendants subsequent to the assertion of hostile title which they had made in their written statement (Ext. B). But I am unable to accept this contention as sound. In order to effectively break up the exclusive possession of the defendants in the disputed house, it was necessary for the plaintiffs to have got their title adjudicated by a competent Court, having regard to the fact that the assertion of hostile title had been made by the defendants in a litigation which was pending in Court. The mere act of Nanku in getting his name recorded in the Municipal Survey Khesra (Ext. 2) was not an effective step in this direction, particularly when, as the evidence shows, that he was not in possession of the house at the time when Ext. 2 was fipublished.
The plaintiffs cannot, therefore, rely on Ext. 2 as operating to interrupt the adverse possession of the defendants over the disputed house. Nor can the plaintiffs bring to their aid the tact of their casual visits of the house from time to time since they were not in the character of owner or in the exercise of rights of ownership ammo possi-dendi. These visits were not like the visits of the mother to her son in Woodhouse v Hooney, (1915) 1 Ir R 296 but like the visits of the old lady Kullammal who came occasionally and stayed a few days as a guest in Amma Kannu Ammal v. Narayanaswami Mudaliar, AIR 1923 Mad 633 The learned Single judge has, however, referred to two share receipts (Exts. 3 and 3/a), both dated the 10th December 1948, which show that Nanku had purchased 10 shares in Bhawar Pokhar Cooperative Societies Ltd., of which Shri Ajodhya Pd. a Pleader (P.W. 3), was the Secretary since June 1950 According to P.W. 3, the membership of the Co-operative Societies was open only to the residents of Ward No. VI, wherein the disputed house is situate.
The learned judge has, therefore, held that Nanku did really live in the house in question "otherwise, no share could have been issued to him" But the fact cannot be lost sight of that these shares were obtained by Nanku only a few months before he instituted the present suit, and in any case, long after whatever title he had in the disputed house had become extinguished by reason of notorious adverse possession of the defendants for more than the statutory period. The receipts (Exts. 3 and 3/a) could, by no means, revive the plaintiffs' title in the disputed house which they had already lost.
38. Mr. Lal Narain Sinha cited a number of decisions before us in which the plea of adverse possession did not succeed. The decisions particularly relied upon by the learned counsel are Vithal Das v. Secretary of State, ILR 26 Bom 410; Secretary of State v. Krishnamoni Gupta, 29 Ind App 104 (PC); Krishna Pd. Singh v. Adyanath Ghatak, AIR 1944 Pat 77 and Sukan v. Krishnanand, ILR 32 Pat 353. But it is unnecessary to refer to these decisions at length because the principles upon which these decisions proceed arc well established, namely, (i) that possession is presumptive evidence of title, and every possession is referable to lawful title, (ii) that actual participation in the rents and profits of a property held in common is not necessary to interrupt adverse possession, (iii) that the possession of a co-owner is not wrongful as that of a trespasser, and (iv) that even momentary interruption is sufficient to break up the continuity of adverse possession, and in such cases of interruption, the prior possession of the claimant cannot be tacked on to his subsequent possession for upholding his claim of title by adverse possession,
39. But it is equally well settled that in applying these principles to the facts and circumstances of a particular case, the test to be applied is what was the animus of the parties that is to say, whether the co-sharer in possession intended to hold the property in his own exclusive right or on behalf of all the co-sharers, and conversely, whether the co-sharers who wore out of possession intended that the co-sharer in possession should represent them also in relation to the property. The intention of the parties is to be determined with reference to their acts or omissions and conduct in relation to the property. Where, therefore, it is found that the co-sharer in possession has been treating the entire property as his own and not recognising the rights therein of the co-sharers who are out of possession, and the co-sharers who are out of possession are aware of the hostile attitude taken up by the co-sharer in possession and yet they allow the co-sharer in possession to continue in exclusive possession of the property without taking any effective step towards challenging the exclusive right in the property, insisted upon by the co-sharer in possession, for more than the statutory period of twelve years, the co-sharers who are out of possession cannot prevent the accrual of exclusive title in the co-sharer in possession merely by paying occasional visits to the property without any intention to exercise their rights of ownership therein.
This is precisely the position in the present case the plaintiffs cannot point to a single effective step which they took to break up the assertion of hostile title made by the defendants and amounting to the ouster of the plaintiffs from the disputed house throughout the period of about 34 years which elapsed between the execution of the Ekrarnama (Ext. I) and the institution of the present suit, in spite of the fact that they knew full well that the defendants had all along treated the entire house as their own. The facts of this case are so gross that there is no escape from the conclusion that there was complete ouster of the plaintiffs and that assuming that any title was acquired by the plaintiffs in the house it was extinguished by adverse possession and that the defendants perfected their title to the entire house.
40. For the foregoing reasons, I have come tithe conclusion, in disagreement with the learned Single Judge, that both the points arising for determination in this appeal must be decided in Favour of the appellant
41. Mr. Lal Narain Sinha has, however raised a question of res judicata. Learned counsel contends that the effect of dismissal of Letters Patent Appeal No. 120 of 1958, which had been filed by defendants 3 to 7 against the decision of the learned Single fudge in F.A. No. 153 of 1951, would be that the decision of the learned Single (Judge (sic)) in F.A. No. 153 of 1951, has become final and, therefore, all the issues which arose in that appeal must be deemed to have been finally determined between all the parties, since, defendant No. 1 who has preferred the present appeal was also a party in F. A. No. 153 of 1951, and as such the same matters cannot be the subject of fresh investigation in the present appeal. In support of his contention, learned counsel has relied upon three Bench decisions of this Court; Mrs. Gertrude Gates v. Mrs. Millicent D' Silva, AIR 1933 Pat 78; Raghunandan Singh v. Sm. Soubhagya Sundari Devi, AIR 1948 Pat 191 and Narendra Nath v Ganesh Prasad MR 1946 Pat 408.
42. Upon a careful examination of these decisions, I am of the opinion that they are not applicable to the facts and circumstances of the present case. In AIR 1933 Pat 78, the facts were that there were two suits; one by the plaintiff against the defendant for a relief of injunction on the basis that they had entered into a partnership which was subsisting, and the other by the defendant for recovery of arrears of rent from the plaintiff, founded on the same ground The first Court dismissed both the suits by a common Judgment, holding that the partnership had stood dissolved There was no appeal in the first suit which was For injunction But there was an appeal in the lower appellate Court in the rent suit. The lower appellate Court dismissed the appeal as barred by the principles of res judicata, and that decision was affirmed by a Bench of this Court. Their Lordships held that it more than one suit are decided by a common judgment and if the decree in one of them has become final by the party not appealing against it, the issue decided in it operates as res judicata in the other suits even at the appellate stage.
It may be noticed that this was a case of two suits seeking different reliefs, and not of one suit, as in the present case, and further that the decision in the appeal which arose out of the tent suit depended upon the same issue which had been finally decided in the injunction suit Whereas in the present case, there was only one suit, and the whole matter arising in the suit was open for decision in both the First Appeals before the learned Single Judge which were consolidated and were really in the nature of one appeal. Even if the defendants Nos. 2 to 7 had not preferred a separate appeal against the decree of the trial Court, it would have been open to the learned Single Judge, if he were to decide the appeal of defendant No 1 in her favour, to give an appropriate relief in the same appeal to defendants Nos. 2 to 7, notwithstanding the fact that they had not preferred any separate appeal in exercise of his powers under Order 41 Rule 33. Code of Civil Procedure.
Likewise, in the present appeal, the entire matter in controversy between the parties in the suit is before us and no part of our decision in the present appeal is dependent upon any matter which arose only in F A No 153 of 1951. In my opinion, the present case tails within the ambit of Narhari v. Shanker, AIR 1953 SC 419 in which two separate appeals were preferred by two sets of defendants, each claiming one-third share in a property which was the subject matter of single suit The lower appellate Court allowed both the appeals and dismissed the plaintiffs' suit by one judgment, and the plaintiffs, who were claiming two-thirds share in the property, preferred two appeals to the High Court One of the appeals was, however, dismissed on the ground of limitation Their Lordships held:
"When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to different appeal The two decree in substance are one.'
43. It was pointed out by Mr Lal Narain Sinha that the decision in Narhari's case, AIR 1958 SC 419 was not followed by their Lordships of the Supreme Court in the case of Badri Narayan Singb v Kamdeo Prasad Singh, AIR 1982 SC 338 wherein it was pointed out that the observations made in Narhari's case, AIR 1953 SC 419 do not apply to cases which are governed by the general principles of res judicata which rest on the principle that a judgment is conclusive regarding the points decided between the same parties and that the parties should not be vexed twice over for the same cause. But, again, it will be noticed that in Badri Narayan Singh's case. AIR 1962 SC 338 there were two separate election appeals, both of which were dismissed by the High Court and at appeal was brought to the Supreme Court in only one of them The decision in the Supreme Court appeal depended son a matter which had been decided by the High Court in the other election appeal which was not before the Supreme Court In these circumstances, their Lordships pointed out that the decision of the High Court in the appeal which had not been brought before the Supreme Court, operated as res judicata because although both the appeals before the High Court arose out of one proceeding before the Election Tribunal, the subject matter of each appeal was different Their Lordships held that;
"The subject matter of appeal No. 7 tiled by the appellant related to the question of election being bad or good, in view of the pleadings raised before the Election Tribunal. It had nothing to do with the question of right of respondent No. 1 to be declared as duly elected candidate. The claim of such a right is to follow the decision of the question in appeal No. 7 in case the appeal was dismissed. If appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration. The subject matter of appeal No. 8 simply did not relate to the validity or otherwise of the election of the appellant. It related to the further action to be taken in case the election of the appellant was bad, on the ground that a Ghatwal holds an office of profit. The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals"
That, however, is not the situation in the present case, because the subject matter of F. A. No. 153 of 1951 was in no way different from the subject matter of F. A. No. 237 of 1951, which has given rise to the present appeal. It is impossible to hold that the decision of the learned Single Judge in two appeals amounted to two decisions, In my opinion, it was one decision common to both the appeals, and, therefore, the entire matter in controversy between the parties to this suit is before us in the present appeal. In these circumstances, there can be no question of the application of the doctrine of res judicata.
44. In Raghunandan Singh's case, AIR 1948 Pat 191, the same plaintiff had instituted 225 suits for rent of different holdings, alleging that he was -/8/- annas co-sharer landlord of all the holdings, but the defendant who was impleaded as a party in every suit claimed that he was the sole landlord. The first Court decided all the suits in favour of the plaintiff, but the defendant preferred an appeal in only one of the suits reiterating his claim to be the sole landlord. Their Lordships held:
"Where a question of title is decided in two cases, and there is an appeal in one only, leaving the other decision unchallenged, it is not open to the Court in appeal to investigate the matter again."
It will thus be noticed that this was also a case of several decisions, though contained in one judgment, and not a case of one decision common to all the several cases
45. In Narendra Nath Sens case, AIR 1946 Pat 408 the position was entirely different. In that case, two reliefs were claimed by the plaintiff in the same suit; one for declaration of title and the other for possession. The right to get both the reliefs depended upon the same facts, and both the reliefs were decreed by the trial Court. In appeal, however, the defendant challenged only the decree for declaration of title since he did not choose to pay ad valorem court-fee for the purpose of challenging the decree for possession Upon these facts their Lordships held:
The plaintiff-respondents have been granted two reliefs first, a declaration of title and secondly a decree for possession. Their right to the second relief depends on the very same facts which give rise to their title. The decree for possession would, therefore, operate as res judicata on the facts necessary to establish that title. So long, therefore, as the decree for possession remains intact it would operate as res judicata to prevent the appellants from challenging the decree for declaration of title" In the present case, there is no question of more than one relief having been granted to the plaintiffs by the learned Single Judge. The relief granted is one in both the appeals, and the whole matter is open before us. I am, therefore of the opinion that there is no scope for application of the principles of res judicata in the present appeals. In any event, this is a fit case in which we should exercise our powers under Order 41, Rule 33, Code of Civil Procedure and give relief to defendants 2 to 7 who are parties to this appeal but have not joined it as appellants
46. In the result the appeal is allowed, the judgment and decree of the learned Single Judge and of the learned Subordinate Judge are set aside and the suit is dismissed. The appellant is entitled to costs in all the Courts.
47. I agree.