JUDGMENT
1. This appeal arises out of a suit for redemption of a mortgage alleged to have been made in 1855 by three brothers, one of whom was Gehru Singh. The plaintiff purchased the share of Gehru Singh from the sixth defendant (who inherited it) on the 24th of June 1906, and by virtue of this purchase, he claims redemption of the mortgage. The Court of first instance held that what was mortgaged by the three brothers was a third share of 259 bighas and odd; that the share mortgaged by Gehru Singh was thus one-ninth, and that the extent of that share was 28 bighas and odd. It accordingly made a decree for redemption of the 28 bighas and odd and dismissed the claim as regards the rest. The finding of the Court of first instance was affirmed by the lower Appellate Court. Upon appeal to this Court, it was urged that the matter was res judicata in consequence of a judgment passed in a pre-emption suit brought by the defendants. This contention found favour with the learned Judge of this Court before whom the appeal came on for hearing and the plaintiffs' claim was decreed in its entirety.
2. The defendants have preferred this appeal under the Letters Patent. We are unable to agree with our learned brother. What happened in the previous litigation was this. When the sixth defendant sold to the plaintiff, on the 24th of June 1906, the share which he claimed to possess in the village, a suit for pre-emption was brought by the appellants before us. The sale-deed purported to be a sale of 47 bighas and odd. The plaintiffs to that suit claimed to pre-empt 23 bighas and odd, on the allegation that the vendor owned only that extent of land. The claim was resisted on the ground that the property sold was in excess of the 23 bighas and odd claimed by the plaintiffs, that the plaintiffs had, therefore, not claimed the whole of the property sold, and that for this reason their suit must fail. We have before us the judgments of the two lower Courts in that case and also the judgment of this Court. The issue which the lower Appellate Court framed was in these terms: "Whether Ajmer owned any thing more than 23 bighas, 12 biswas, 4 dhurs of patti Kalka Singh and the plaintiffs have omitted to claim such excess share." This, in our opinion, was the real issue in the case and in deciding that issue, the Court may have considered various matters as reasons for its decision but the finding on the issue is the finding which would have the effect of res judicata. The finding was that the vendor Ajmer owned more than 23 bighas and that, therefore, the plaintiffs in their suit for preempt ion had not claimed the whole of the property sold and were not entitled to maintain the suit. This judgment of the lower Appellate Court was affirmed by this Court, and the learned Judge of this Court who heard the appeal was of opinion that whether the extent of the vendor's share was 47 bighas and odd as alleged by the defendants or 28 bighas and odd as alleged by the plaintiffs, in either case the plaintiffs had not claimed the whole of the property sold and the whole of the property which they were entitled to claim under their right of pre emption. For this reason, it was held that their suit failed. So that, the question as to the extent of the share of the plaintiffs' vendor was not in issue and was not determined in that litigation. In the present suit, the Courts below have found as a fact that the extent of the mortgagor's share in the property claimed was 28 bighas and odd. This is a finding of fact which was binding on this Court, and upon that finding the appeal to this Court ought to have been dismissed. "We allow this appeal, set aside the judgment and decree of this Court, and restore that of the lower Appellate Court with costs of the hearing in this Court.