JUDGMENT
1. This is a plaintiffs appeal arising out of a suit for declaration that they are in proprietary and adverse possession of the property in suit. The last male owner was Jas Karan on whose death Mt. Kuri his widow admittedly succeeded to the estate. It was the plaintiffs' case that Mt. Kuri remarried and that there was a custom under which she forfeited all rights in this estate. Her deceased husband's uncle Tirkha instituted a suit against her for possession but during the pendency of the suit he died. That suit was continued by Kanhaiya the father of the present plaintiff who was not the nearest reversioner of Tirkha, but Net Ram and Nawal the grandfathers of the present defendants were the nearest reversionary heirs. These latter were impleaded as pro-forma defendants. The suit was dismissed by the first Court and Kanhaiya alone appealed to the District Judge and got a decree reversing the decree of the first Court. That judgment was set aside and the suit dismissed by the High Court on the ground that Kanhaiya was not the nearest heir who continued the suit in place of Tirkha deceased. No decree was passed in favour of Net Ram and Nawal.
2. It is the plaintiff's case that after Kanhaiya had succeeded in obtaining a decree from the District Judge's Court he obtained possession of the property in the execution department and has continued in possession ever since. The name of Kanhaiya, however, was not entered in the revenue papers and that of Mt. Kuri continued as before. She died in 1920. After her death the present defendants succeeded in getting their names entered in the revenue papers and thereafter brought a suit for ejectment against the present plaintiffs. The latter raised the question of proprietary title but the revenue Court decided that the present defendants were the co-shares and that they were competent to sue. On appeal to the District Judge it was held that the defendants were the cosharers but that the suit was not maintainable inasmuch as the other cosharers had not joined in it and the plaintiffs to the suit were not lambardars.
3. In the present suit questions of fact as well as the plea of res judicata were raised and several issues were struck by the first Court which found all of them against the plaintiffs and dismissed the suit. The learned District Judge, however, has not gone into the questions of fact and has held that the effect of the two previous litigations is to create a bar of res judicata against the present plaintiffs. We are unable to agree with him in this view.
4. As regards the civil suit it is quite obvious that Tirkha died before the trial Court decided the suit and according to the view taken by the High Court Kanhaiya had no right to continue the suit and the suit was actually dismissed. It would therefore follow that suit could not operate as res judicata in favour of Kanhaiya's sons. As regards the revenue suit the learned District Judge in spite of hiving recorded the finding that the present defendants were the cosharers dismissed the suit on the ground that they were not competent to sue. It is therefore quite clear that on his own finding it was not necessary to decide that they were the cosharers. The suit failed on the ground that they had no right to sue. The learned advocate for the respondents relies on the case of Jagdeo Misir v. Mahabir Tewari A.I.R. 1927 All. 803 which follows an earlier Privy Council case viz: Midnapur Zemindari Co. Ltd. v. Naresh Narain Roy A.I.R. 1924 P.C. 144. The Midnapur zemindari case does not help the respondents. Their Lordships approved of the opinion expressed by the learned Judges of the Calcutta High Court to the effect that where a Court decides that a certain question is necessary and records a finding on it, it is not proper to re-consider whether that issue was really necessary or not. The finding arrived at would be binding on the parties. The same view was taken in Jagdeo Misir's case. That is not the case here. The District Judge dismissed the suit in spite of the finding in favour of the defendants that they were cosharers, As pointed out by their Lordships in the case of Midnapur Zemindari Co. Ltd. v. Naresh Narain Roy A.I.R. 1924 P.C. 144 at 467 (of 48 Cal.) the finding on that question against the plaintiff could not found a plea of res judicata for they had succeeded on the other plea and had no occasion to go further as to the finding against them. A similar view was expressed by their Lordships in the case of Run Bahadur v. Lucho Kuar [1885] 11 Cal. 301 at p. 306 where it was remarked that a finding could not be conclusive against the party if the decree was not based upon it but was made in spite of it. We therefore think that the view taken by the District Judge on the question of res judicata cannot be upheld.
5. A further opinion has been expressed by him that any question of adverse possession can never arise in this case because the khata is a joint khata in which there are other cosharers. It is not suggested on behalf of the defendants that the parties are cosharers in this khata independently of the interest which is claimed in this suit. The mere fact that other people are cosharers would not prevent an acquisition of title by adverse possession. In any case if in the joint land an actual ouster to the knowledge of the true owner is established, adverse possession could be proved.
6. We therefore think that before disposing of this appeal finally we ought to have clear findings on the following three issues:
(1) Did Mt. Kuri remarry after the death of her husband Jas Karana?
(2) If she did remarry, is there any custom of forfeiture of the husband's estate prevalent in the brotherhood of Jas Karan?
(3) If she remarried and there is such custom, whether the plaintiffs have remained in adverse possession of this property for more than 12 years before the suit?
7. No fresh evidence is allowed. The findings should be returned within three months. The usual ten days will be allowed for objections on return of the findings.