Naurata and Another vs Anokha and Others

Chopra, J.—This is an application for review of our Appellant in R.S.A. No. 62 of 1950 dismissing Naurata Singh Defendant''s appeal in a suit decreed against him by the courts below. Naurata Singh originally presented this application for grant of a certificate under Article 133, Constitution of India for further appeal to the Supreme Court. One of the points raised in the application was that certain previous decisions between the parties operated as res judicata. This depends upon the question whether the land which was the subject matter of those decisions was the same which is the subject matter of the present litigation. In the appeal before us we found that the same was not established. Counsel for the Petitioner, however, contended that while arriving at this conclusion we had ignored certain important documents which were on the record. Considering this to be more a ground for review of our Appellant than for a certificate for further appeal, we allowed the'' petition to be treated as one for review and issued notice of the same to the Respondents.

At the hearing of the application, our attention was drawn to certain copies of the revenue records, which according to S. Dara Singh, learned Counsel for the Petitioner, strongly go to prove ''identity of the land. We had not looked into these documents nor did we make any mention of them In our order, because they were not relied upon or referred to by counsel of either party at the time of hearing of the appeal. In order to be'', able to understand what weight should be given to these documents, we called for the records of the two previous cases brought by Mst. Jeoni (copies of Appellant. of which were on the record) and also called upon the Petitioner to produce a copy of the mutation referred to in the column of remarks In jamabundi 1988-89. The copy of the mutation was produced and admitted, but report of the Record-keeper showed that the record of the two cases, that were sent for, had been-destroyed. The counsel produced a copy of an entry from the register of destroyed files show-ing that the file of the third case brought by Mst. Jeonl had also been destroyed. Mr. Puran Chand, counsel for the Respondents, then wanted time to produce certain documents in rebuttal. Time was granted but he did not adduce any evidence in rebuttal.

The documents to which our attention has .now been drawn have an important bearing on the case and, as will be presently seen, they conclusively go to show that the land for possession of which Mst. Jeoni brought the previous suits was the same which is the subject matter of the present litigation. It is further evident that the three suits brought by Mst. Jeoni were against the present Defendants or their predecessors-in- interest, She failed in each of them. It is said that such an important documentary evidence was not'' brought to our notice and referred to by either party when the appeal was heard, but all the same since the documents were already there, the error is apparent on the face of the record.

An error of the kind whether it occurs by reason of the counsel''s mistake or it creeps in by reason of an oversight on the part of the court can al- ways be a good ground for exercise of the jurisdiction of the court to reverse its decision.

Records of the suits brought by Mst. Jeoni have admittedly been destroyed. Copies of the Appellants in two of them, which had already been, obtained, have been produced by the Defendants. the of the suits No. 45 was brought by Mst. Jeoni against Jaimal Singh son of Khem Singh on 11-6- 1985. It was for possession of 11 bighas and 5 biswas out of khatoni No. 25 in khatas Nos. 7 and 8. The Second suit No. 47, was instituted by Mst. Jeoni on the same day against Ram Singh son of Khem Singh''and related to 11 bighas 16 biswas out of the same khatoni No. 25 of khatas 7 and 8. The third suit No. 46, as is apparent from the copy AIR from the register of destroyed files, was also on behalf of Mst. Jeoni and was instituted against Kartar Singh and Mukhtar Singh sons of Deva Singh. This suit, like Ors. , was for possession of land, but the register does not give its area: it is, however, mentioned that the suit was dismissed on 15-9-1985. The other two suits also were dismissed on the same day. Mutation No. 1 sanctioned in favour of the Appellants on 27th Poh, 198G, copy of which has now been produced, further makes it clear that Mst. Jeoni had brought three suits Nos. 45 to 47 and failed. It was on the basis of decisions in these suits that the land now in dispute was mutated in the names of the . successful Defendants.

It may here be mentioned that Khem Singh had three sons Ram Singh, Deva Singh and Jaimal Singh. Ram Singh was one of the Defendants in the present case and on his death his son Naurata Singh and Isher Singh were impleaded in his place. Kartar Singh and Mukhtar Singh Defendants are the sons of Deva Singh. Jaimal Singh appears to have died leaving no issue. The three suits by Mst. Jeoni were thus against the present Defendants or their predecessor-in-interest: The land in each suit was described as l/3rd of khatoni No. 25 of khatas Nos. 7 and 8. Jamabandi of 1984-65 (Ex. PC) mentions the field Nos. of this khatoni No. 25 and gives its total area as 35 bighas and 7 biswas. Mst. Jeoni is mentioned as its owner and Deva Singh and Ram Singh sons of Khem Singh are shown as persons in posses sion of the land as tenants. Fresh settlement appears to have taken place in the year 1984-86 and that obviously gave rise to a change in the field numbers. Misal Haqiat prepared during this settlement mentions the old as well as the new field numbers and Ex. PB is a copy from this Misal Haqiat.

On a comparison of the two documents Ex. PB and PC we find that each of the field Nos. of the old settlement representing the land that was in dispute in the previous cases tallies with the field numbers, in the new settlement of the land now in dispute. The area which according to the old measurements in pucca bighas was 35-7 came to, 103-7 in kham bighas. As before, Mst. Jeoni was mentioned as the owner of this land and Ram Singh and Jaimal Singh sons of Khem Singh and Kartar Singh and Mukhtar Singh sons of Deva Singh were shown as tenants under her. The present suit was filed in the year 2002 and the suit land was described as comprising khatonis Nos. 96-99, 100 to 103 of khewat No. 34 its area being 108 bighas 17 biswas. Ex. PA Jamabandi for the year 2001-02 gives the field numbers of this land and they are the same as mentioned in the jamabandi of 1984-85 Ex. PB, and which tally with the field numbers of the prior settlement. These copies from the revenue records, to which our attention has now been drawn, leave no doubt that the land in dispute in the suits brought by Mst. Jeoni was the same which forms the subject -matter of the present litigation.

The matter is further made clear by the mutation sanctioned on 27th Poh, 1986. Ram Singh on the basis of the adverse decisions in the three suits of Mst. Jeoni applied to the Revenue authorities for her name as owner of the land being expunged and his name and those of his brOrs. being entered in her place. The mutation was allowed and Ram Singh and Jaimal Singh sons of Khem Singh and Kartar Singh and Mukhtar Singh sons of Deva Singh were ordered to be entered as owners of the land. Effect to this order was given, and that explains the entry of their names as owners of the land in Ex. PA, jama-bandi of 2001-02. This decides the question of identity of the land in dispute in the three suits of Mst. Jeoni and the one that is now in dispute. I have, therefore, no hesitation to review our previous decision and to hold that the three suits Which were decided against Mst, Jeoni in 1985 related to the land which is the subject-matter of the present litigation.

The next question, which in view of our previous decision was not gone into and was left undecided, is as to what is the effect of the decrees against Mst. Jeoni in those suits. Before discussing the legal aspect of the matter, some of the relevant facts, which are not disputed, have to be recapitulated. Bhola, Lekha and Chuhra were three brOrs. and sons of Budhu. On their death leaving no male heir Mst. Jeoni, widow of Lekha, succeeded to their estate. The finding of the District Judge that she held only a widow''s estate in the entire land of the three brOrs. is not contested before'' us. In the earliest available revenue record, Ex. PQ, jam an and of 1960-61, the land is entered in the name of Mst. Jeoni as owner and is stated to be in her self-cultivation. Subsequent Khasra Girdawaris from 1961 to 1977 (Exs. DB, DC, and DD) show that the present Defendants or their predecessors-in-interest cultivated a part of the entire holding, and that part is now in dispute, as tenants-at-will of Mst. Jeoni. Mst. Jeoni brought three suits for possession of that part of the land in the year 1984. As already observed the records of the cases have been destroyed but copies of the Appellant in two of them show that Mst.. Jeoni came to court on the allegations that as there was no one else to cultivate the land on her behalf it was given by her to the Defendants as tenants and that they continued to be in possession of it as such with her consent.

The prayer made was one for possession. The suits were contested on the ground that the Defendants were in possession for more than twelve years and had paid no rent. Ownership of Mst. Jeoni was admitted. The two issues whether the suit was within time and whether the Defendants had been paying rent to Mst. Jeoni were decided In favour of the Defendants and the suits were, consequently, dismissed as barred by time. It was also observed that Mst. Jeoni had lost her rights In the land as provided in Section 28, Limitation Act. No appeal appears to have been filed by Mst. Jeoni against these decisions and so far as she is concerned they became final. It was on the basis of these decisions that the Defendants were entered as owners of the land in place of Mst. Jeoni in jamabandi 1989-90 as ordered in Mutation No. 1 of 1986. The land continued to remain in possession of the Defendants till the death of Mst. Jeoni in 2001. Within one year of her death the present suit for possession was brought by the collaterals of her husband Lekha. The suit was resisted on a number of grounds, but in the present petition we are only concerned with the question of res judicata based on the previous decisions against Mst. Jeoni.

S. Dara Singh contends that Mst. Jeoni, though for certain purposes a limited owner, represented the estate and any decree fairly and properly obtained against her binds the estate and consequently the reversioners. It is further urged that the points which were once agitated "and decided against the widow and on the basis of which she was declared to have lost her rights in the land, could not again be agitated and that nothing was left for the reversioners to succeed to after her death. On a careful consideration of the facts of the case and the authorities cited at the Bar I cannot help thinking that the contentions must fail. For obvious reasons Section 11,Code of CPC has no application. The previous decisions were not inter partes, nor do the present Plaintiffs claim their right from or through the widow. They were not entitled to possession so long as the widow was alive. Mst. Jeoni, therefore, cannot be deemed to be litigating for a right claimed in common for her and Ors. , viz., the reversioners, and that rules out the application of explanation 6 to Section 11 as well. Other considerations might apply if Mst. Jeoni had never taken possession of the estate and if she wanted it from a stranger who had got into it during the life time of her husband. In the present case it may be remembered Mst. Jeoni remained in possession of the land for a number of years after her husband''s death. The land was under her cultivation up to 1980, when it was said to have been leased out to the Defendants. The possession of the Defendants started somewhere in the year 1961. Mst. Jeoni, in those suits, wanted the land back in her own rights and cannot thus be deemed to have sued in a representative capacity: and that makes Expl. 6 inapplicable.

It is, however, stressed that Section 11 is not exhaustive of the general doctrine .of res judicata and that the principle of conclusiveness of findings is much wider than the terms of the Section. The decrees against Mst. Jeoni are said to be a bar to the present suit on the application of those general principles. This depends on the assumption that in those litigatioas the widow fully represented the estate. It will be too general a proposition to lay down that in every litigation, of whatever nature it may be, concerning the estate or a part of it, to which the widow was a party, she should be regarded as representing the estate and, therefore, any decision against her in that litigation would bind the reversioners. My own view is that in order that a decree fairly and properly obtained against a widow may have the effect of res judicata against the reversionary, the suit in which the decree was made should have been in respect of the estate represented by her: but if the suit was in relation to anything which she may have done herself to the prejudice of the reversionary heirs or in her personal right, she cannot be said to be litigating in respect thereof as representing the estate.

Widow cannot be deemed to represent the estate, so as to bind the reversionary heirs of her husband, in respect of anything which she may have done herself to the prejudice of the said. reversionary heirs. She represents the estate as against strangers for the purpose of protecting or preserving it, but if the purpose has no connection with the protection or preservation of the estate and is only a personal affair originating from her own acts she cannot bind the reversionary heirs of her husband. With a view to find out whether the widow represented the estate in litigation one has to look to the nature of the allegations put forward and the issues raised, tried and decided in the former suit. Was it a claim by or against the widow personally or whether it raised the question of her inheritance? If the contentions raised were of the latter type connected with her inheritance, and the trial was with reference to them the widow would surely be regarded as representing the estate. If not, the litigation must be deemed to be personal to her and not binding the estate. Keeping these principles in view, on the facts before us I am unable to hold that the decisions against the widow in 1985 are res judicata so as to put an end to the present suit.

If we analyse the pleadings and the relief sought by the widow in those suits it becomes apparent that she alleged a tenancy created by her in favour of the Defendants and she sought to recall her own acts on the ground that the Defendants had stopped paying her the rent. She was thus litigating on her own rights and not as representative of the estate. The Defendants admitted the right and ownership of the widow but pleaded that they were paying no rent and were possessing? adversely to her. By the first issue the Plaintiffs was called upon to prove that her suit was within time and by the second that she was receiving produce of the land as rent from the Defendants. The court, on the evidence produced In the cases, found that the Defendants were not paying rent to the widow for more than twelve years, and that their possession became adverse from the time they ceased to pay rent. Applying Article 139, Limitation Act, it declared the suits to be barred by time and consequently dismissed them. It was lastly observed that by virtue of Section 28 of the Act the widow had lost her rights in the land. The court thus accepted the position of the Plaintiff as a landlord, but threw out her cases because its finding was that the tenancy had determined more than twelve years before the suits.

It may be mentioned here that the Defendants belonged to a different village and were probably called because of their relation with her by the widow herself and settled in the village for the purpose of cultivating the land on her behalf. As already observed this happened long after the Widow had succeeded to the estate and remained in. possession of it for several years. Possession of the Defendants commenced for the first time in the year 1961. Some time thereafter they stopped paying rent to the widow and that necessitated the suits on her behalf. The court, somehow or other, arrived at the conclusion that no rent was paid to the widow for mote than 12 years and, therefore, threw out the suits as barred by time. This leaves no doubt in my mind that Mst. Jeoni in those suits was litigating a personal claim baaed on her own rights and not as. a representative of the estate. Widow''s claim of being the landlord was admitted, but she was non-suited because, in the opinion of the court, the tenancy had terminated more than 12 years before. The concluding observation does not carry the Defendants case any further. It does not mean any thing more than saying that by possessing adversely to the widow for the statutory period, the Defendants became entitled to the rights Which she possessed, and that she had not only lost her remedy but also her right.

The reversioners who do not claim from or through the widow, are in no way affected by it, a finding of the kind against the widow does not extinguish their rights as they derive title from the last male owner. Cause of action for them arose from the death of the widow and they get'' twelve years from that day to sue for possession. To hold otherwise would be to cut down and virtually nullify the express provisions of the Legislation contained in Article 141, Limitation Act.

Adverting to the question of res judicata, the general principle on which it is based is that the same matter should not be allowed to be agitated twice. The matter that was finally decided in the previous suits, as already observed was that the tenancy in favour of the Defendants had ceased to continue more than 12 years before the suits were brought and hence the widow was deprived of her right to dispossess her tenants. No such question is involved in the present case. Adverse possession against a widow does not adversely affect the rights of the reversioners and they can still come within 12 yews of the death of the widow. Without questioning the finding of the court in those suits the Plaintiffs in the present case can proceed on with the suit and their claim cannot be said to be barred.

It may be useful to refer to some of the authorities which support the view that I take and in which the facts were somewhat similar. In - ''Braja Lal Sen v. Jiban Krishna Roy 26 Cal 285 (A), a claim for arrears of rent against a female heir, accrued due after the death of the last full owner, was regarded as a personal claim against her and, therefore, a sale in execution of a decree for arrears of such rent obtained against her by some of the co-sharer land-lords, was held to have passed only a limited estate of the female heir. A previous suit brought by the said female heir for setting aside the aforesaid sale was dismissed. In a subsequent suit by the reversioners for recovery of possession of the Immovable property so sold, the defence was that the suit was barred as res judicata.

Dealing with this objection, Sir Francis William Maclean, the learned Chief Justice who delivered the Appellant of the Division Bench made the following observations:

It is quite true that Ishaneswari, though owning only the limited estate of a Hindu female, represented the absolute estate for certain purposes, and that a decree in a suit concerning the absolute estate if obtained against her without fraud or collusion would be binding on the reversioners. See ''Katana Natchiar v. Rajah of Shivagunga'' 9 Moo Ind App 539 (PC) (B); but if a suit, though concerning the absolute estate, is determined upon a ground personal '' to the female heir, for instance, if a suit brought by a Hindu widow to recover possession of Immovable property appertaining to her husband''s estate is dismissed on the ground of its having been alienated by her in favour of the Defendant, in the absence of legal necessity being shown, the decree in such a case ought not to bind the reversioner.

On the facts of the case it was held that the dismissal of the previous suit, which was for recovery only of the limited estate of female heir, could not be a bar to the subsequent suit, which was for the recovery of the absolute estate, which vested in the reversioner.

In - '' Subbi Ganpatibhatta Neelmane Vs. Ramkrishnabhatta Shankarbhatta, a female heir holding a widow''s estate made a gift to the Defendants or their pre-decessors-in-title of a part of the estate to which she had succeeded from her husband. The widow sometime later, brought a suit, against the donee. alleging that he did not comply with the conditions on which the gift was made. She sued to; recover possession of the property for the breach 1 of the conditions. The Defendants resisted the suit on the ground among Ors. that they were possessing, adversely to the widow. The suit was dismissed as barred by time. In Anr. suit brought after the death of the widow by an heir and reversioner of the last full owner, we find the following observations to have been made by the Division Bench of the Bombay High Court:

If we analyse the relief sought by Venkamma in the suit, of 1904, it becomes apparent that she herself alleged a gift or temporary and conditional alienation of her own through her agent Ganapamma, to the Defendants; and that the conditions she had annexed to it had not been complied with.

Discussing the principle laid down by their Lordships of the Privy Council in - ''9 Moo Ind App-539 (PC) (B)'', the learned Judges observed: '' fit is true that where a widow sues to recover property which she alleges belonged to the estate of her deceased husband or defends attacks upon that estate, in both cases the cause of action originating in acts other than her own, the general rule laid down in the - ''Shivagunga case (B)'', might apply. But it has often been pointed out that it cannot apply to cases in which the suits either conducted or defend- ed by a widow are personal to herself and originate in her own acts.

Reverting to the case before them the learn ed Judges arrived at the following conclusion:

And we are equally unable to hold on the facts before us that the decision against Venkamma in 1904 was res judicata so as to put an end to the Plaintiff''s suit. That was not a decision inter partes. Neither was it, in our opinion, a decision in rem. It is only on the supposition that in that litigation the widow fully represented the estate that it could be regarded as res judicata against her daughter; but if we look to the ground of her claim in that suit, we shall see that it has nothing in common with the Plaintiff''s claim in this suit. Nor is the Plaintiff claiming through the widow of Manja but in her own right as heir and reversioner to her father.

In Anr. case decided by a Division Bench of the same High Court, - Babanna Gurusangappa Vs. Channappa Chanmallappa and Others, tub facts were like this: The estate of a deceased Hindu was partitioned between his two widows A and B in 1895. B died in 1897 and after her death her share was enjoyed by her daughters and their sons. In 1910, there was a suit by one of the daughters of B against the other widow A. In that suit it was held that the widow B had acquired an absolute title to her estate as against A. In 1925, A adopted a son to her deceased husband. In a suit by the adopted son to recover possession of the property which had gone into the possession of B, it was held that in the previous litigation A could not represent the estate of her deceased husband as a whole, and, therefore, the decision against her in the previous suit was not res judicata against the adopted son who claimed as the adopted son of his father and not through A.

In Sashi Kumar Sorkhel and Others Vs. Chandra Kumar Samaddar Chowdhuri and Others, a Hindu widow,'' in a suit brought by her, had failed to recover possession of the property sold in execution of a . decree on the basis of a pronto which she alleged was forged. On a subsequent suit by the reversioners it was held that a previous suit by a Hindu widow for recovery of possession in her own right which she enjoyed for many years and from which she was dispossessed, does not operate as res judicata againt a reversioner to recover possession of the property.

The basic authority of their Lordships - 9 Moo Ind App 539 (PC) (B)'', was again under discussion before a Division Bench of the Oudh High Court in - ''Lalit Mohan v. Lachbmi Raj Kaur'' AIR 1946 Oudh 213 (F), and it was observed that that case as also in some Ors. leading to the same result, the decree against the female holder of the estate, which was held to be binding on the succeeding reversioners, involved a question of title and not a mere question of possession. It is correct that the facts in the Oudh case were very much different and I may not be inclined to endorse every observation made therein, but with all respects I agree with the following conclusion arrived at by the Bench.

A decree or order of a Competent court fairly and properly obtained against a Hindu widow, which would bind the succeeding reversionary must involve a decision of a question of title and not a mere question of possession.

Authorities relied upon by S. Dara Singh-are based on different set of facts and are distinguishable as in each of them the decree against the widow or other female holder of the estate which was held to be a bar to a suit by the reversioners, involved decision on a question of title and not the mere question of possession. The-dictum of their Lordships of the Privy Council in - 9 Moo Ind App 539 (PC) (B), reference to which has already been made and which has been the subject of discussion and interpretation in a. number of subsequent cases decided by their Lordships and also by different High Courts in. India, was made in the year 1863 when the old Limitation Act (Act XXIV of 1859) was in force. It would be important to bear in mind that in. that Act there was no specific provision relating to suits by reversioners for recovery of possession, after the death of a female heir, of property held: by her in a restricted right under the Hindu Law. Obviously, therefore, a suit to recover possession of Immovable property by a widow as well as reversioners was to be brought within 12 years from the time the cause of action arose, which, in case of adverse possession by the Defendant would be the commencement of the adverse pos session.

The result was that a suit by reversioners became barred by time even before they were entitled to institute a suit for possession. The anomaly was got over by their Lordships in the - ''Shiva Gunga case (B)'', by invoking the principle of representation with the following observation:

The whole estate would for the time be vested in her, absolutely for some purposes, though in some respects for a qualified interest; and until her death it could not be ascertained who would be entitled to succeed. The same principle which has prevailed in the courts in this-country as- tenants-at-tail representing the inheritance would seem to apply to the case of a Hindu widow." This principle, in some of the subsequent decisions, was carried further to be applicable also-to cases where there was no decree against the-widow and the Defendants claimed adverse possession against the widow.

This ignored the fact that in 1871, a new Limitation Act was passed which repealed the earlier Act of 1859. Article 142 in the Limitation Act of 1871 and Article 141 in the Limitation Act of 1877 expressly prescribed a period of limitation of twelve years for a suit by a Hindu entitled to possession of Immovable property on the death of a female heir, the limitation to run from the time when the female heir died. Article 141 of the Act of 1877 was reproduced in the present Act of 1908. However, the controversy has been now set at rest and it has been finally settled that the principle-of representation laid down by their Lordships in - ''Shiva Gunga case (B)'', did not apply to cases;

where there was no decree fairly and properly obtained against the widow and that the cause of action for a suit by the reversioners to recover the Immovable property either against an alienee from'' the female heir or a trespasser who held adversely to her, accrues only on the death of the female heir.

The question that has been seriously agitated rests on the following observations of their Lordships in the - ''Shiva Gunga (B) case'':

When the estate of a deceased Hindu has vested'', in a female heir, a decree fairly and properly obtained against her in regard to her estate is, in the absence of fraud or collusion, binding on the reversionary heir.

Reverting to the facts of that case we find, firstly that it was decided when the law of limitation that was to be applied was widely different, and secondly that Anga Mootoo Natchiar the widow in that case, had claimed in the previous litigation. a Hindu widow''s estate in the Zamlndari as the self-acquired property of her husband, and contended that it was not part of the impartible estate. Quite clearly the question of title was in issue, and her failure carried the estate away from the reversionary heirs and the observations of the Board were directed to a litigation as to the title of the estate.

In - ''Hari Nath v. Mathur Mohun'' 21 Cal 6 (G), the decree against a preceding female heir was founded on limitation, on the ground that she had never been in possession since the death of the widow in 1855, some 26 years before when the succession had opened to her. It is thus clear that the female heir, a daughter in this case, had never succeeded to the estate which was being held adversely: to the predecessor-in-interest to her. She first to get possession of the estate and her suit was dismissed on the ground that she had never taken possession of the estate and that the possession of the Defendants had ripened into ownership .before she was entitled to succeed.

This case no doubt was decided after the Limitation Act of 1877 had come into force, but the provisions of Article 141 of the Act were got over, ''toy. their Lordships with the following observations;

The words ''entitled to the possession of Immovable property'' refer to the then existing law. under that law the Plaintiff being bound by the decree against Sampurna would not be entitled to bring a suit for possession. The intention of the law of limitation is not to give a "Tight where there is not one, but to interpose a bar after a certain period to a suit to enforce .an existing right. The purpose of second Schedule in each of the Acts is only to prescribe the period of limitation for the suit.

It is clear from the facts of this case that the title. of Sampurna to succeed to the estate was in Issue in the litigation which was instituted by her.

Vaithialinga, Mudaliar v. Srirangath Anni, 92 Ind. Cas. 85 is Anr. case decided by their Lordships of the Privy Council. In this the facts were that one Arunachala, whose reversioners the Plaintiffs claimed to be, had before his death directed his wife, Chokkamal to adopt as a son to him his natural brother Alagusundara. In 1862 Chokkamal did as a fact adopt Alagusundara as a son to her late husband. Chokkammal put the adopted son in possession of the estate that had devolved upon her from her husband. Alagusundara continued to be in possession of the pro-perty until he died in 1864, leaving an adopted son Thiagaraja. Thiagaraja then continued to be in possession of that estate till his death in 1881.

Upon the death of Thiagaraja the property went into the possession of his widow Kamalath and upon the latter''s death in 1882, Murugathal, the mother by adoption of Thiagaraja, took possession of the property in question and held it until 1884, when Chokkammal forcibly ejected her.

In 1887 Murugathal brought a suit against Chokkammal and Ors. , in which she claimed a decree for possession of the properties, alleging that her husband Alagasundara had been adopted son of Aruchala, and that the properties which she claimed belonged to him as adopted son, and had been enjoyed by him from 1862 until he died in 1864; that after his death her adopted son Thiagaraja had enjoyed them until he died in 1881, and after him his widow, Kamalatha got them according to Hindu, law and she died childless in 1882, and since her death she, Murugathal, got them under Hindu Law and enjoyed them until 1884, when Chokkammal forcibly took possession of them. Chokkammal in her written statement in that suit denied Murugathal''s title, alleged that she, Chokkammal, had been in possession of the property in question for 38 years from the death of her husband Arunachala in 1849, and denied that Alagasundara had been adopted.

Several issues were framed by the Subordinate Judge in that suit, who found that Alagasundara was adopted as a son to Arunachala in 1862 by Chokkammal, who had the authority of her husband to make the adoption. The Subordinate Judge in that suit also held that Mulugathal''s claim of adverse possession of the estate for 12 years was established and he, therefore, gave her a decree for possession of the property which she claimed. Chokkammal''s appeal to the High Court at Madras was dismissed. In a subsequent suit by the reversioners, this decree against Chokkammal was relied upon as a final decision'' against the estate to bar their suit oh the principle of res judicata, The defence of res judicata founded on this decree was sustained by the Board, on the ground that Chokkammal, as Defendant, had represented the estate, and the decree of adverse possession bound the reversionary heirs. From the facts of the case it is clear that the decree, based pn a question of title, excluded the title of both the widow and the reversionary heirs. The Board also based their decision on Article 129, Limitation Act, 1871 and held that the Plaintiffs were not, entitled to a decree for possession without displacing the adoption of 1862 of Alagasundara by Chokkammal.

Their Lordships of the Privy Council in AIR 1938 254 (Privy Council) referred to and reviewed most of their earlier decisions and arrived at the following conclusion:

An examination of the decisions of this Board, on which both the courts below have relied, will show that the decree against a female holder of the estate which has been held to be binding on a succeeding heir, has in each case involved the decision of the question of title and not the mere question of possession.

The facts of this case were that a widow obtained a decree of her title to the estate of a deceased; but in execution of that decree, entered into a compromise with, persons in possession of the property. The compromise and consent decree thereon were declared void and inoperative as against reversionary heirs in a suit filed by the reversioners. Subsequently a suit by the widow in her own interest for possession against the persons in possession was dismissed. This decree against the widow was not held to operate as res judicata and to be effective against the reversioner''s right to possession on the ground that the decision in the widow''s suit did not involve any question of title.

Since I am of opinion that the decisions in the suits brought by Mst. Jeoni do not operate as res judicata and a bar to the present suit by the-''reversioners, the finding that the land in those suits was the same which is now in dispute is of ho avail to the applicant. The application must, therefore, fail and is dismissed. In view of the circumstances of the case the parties are directed to bear their own costs in this application.

Teja Singh, C.J.

I agree that this is not a fit case in which the application for review of previous Appellant should be allowed and consequently the application should be dismissed leaving the parties to bear their own costs.