JUDGMENT

GOSWAMI, J. (on behalf of K. K. Mathew, J. and himself (majority opinion)).:—In this appeal by special leave from the judgment and decree of the Allahabad High Court the only question that is raised relates to the plea of res judicata. 690

2. The facts so far as material for the purpose of this appeal are as follows:-

The plaintiff (respondent No. 1 herein) claims to be the adopted son of one Param Lal who is the original owner of the premises in suit. Ram Sahai is the father of defendants 1 to 3 and husband of defendant 4. Both Param Lal and Ram Sahai died some time in 1946. The plaintiff brought a suit being O. S. No. 114 of 1952 in the court of the Munsif of Etah, Uttar Pradesh, against defendants 1 to 6. The allegations in the plaint were that defendant No. 5, who is the material uncle of defendants 1 to 3 and brother of defendant 4 executed a rent note on November 13, 1946, on behalf of defendants 1 to 4 in favour of the plaintiff. Since they were in arrears of rent for nearly 21/2 years the suit was instituted for rent and possession by eviction of the defendants. Defendant No. 5 did not enter appearance to contest the suit. The defence of defendants 1 to 4 was that defendant No. 5 never executed any rent note on their behalf in favour of the plaintiff. They disclaimed tenancy and asserted their own title to the premises in suit by adverse possession.

3. The trial court, inter alia, framed the following issues in suit No. 114 of 1952:-

"Issue No. 3: Is the suit barred under Articles 142 and 144 of the Limitation Act?

Issue No 8: Whether the suit against defendants 1 to 4 is barred by time?"

4. Apart from depending on the rent note, evidence was led by the plaintiff in the trial court in that suit to establish that Ram Sahai was a tenant under Param Lal and the former executed rent notes, Exts. 29, 30 and 31, in favour of the latter. The trial court refused to rely upon these rent notes and even characterised these as suspicious documents. The trial court held that defendant 5 did not execute the rent note on behalf of defendants 1 to 4 and also found that.

"the plaintiff has failed to prove that Param Lal and after him the plaintiff has been in possession of the kothi in dispute within twelve years of the suit ......... In view of these reasons I hold that it has not been proved that Ram Sahai and after him the defendants 1 to 4 are in occupation of the house in dispute as tenants of the plaintiff and so they are clearly in adverse possession of the house in dispute."

The trial court dismissed the suit No. 114 of 1952 against all the defendants.

5. The lower appellate court dismissed the plaintiff s appeal arising out of O. S. No. 114 of 1952 (C. A. No. 152 of 1956) against defendants 2 and 3 on the ground that the appeal was barred by limitation.

6. We are not concerned here with the correctness of the reasons for dismissing the appeal against defendants 2 and 3 (appellants 2 and 3 herein) on the ground of limitation. Indeed in considering the plea of res judicata correctness of the finding is not in issue. The findings arrived at in the adjudication have to be taken at their face value between the parties.

7. The appeal was also dismissed by the lower appellate court against defendants 1 and 4 on merits after making certain observations which will be dealt with later.

8. The lower appellate court, however, allowed the appeal against the non-contesting defendant No. 5 and decreed that the defendant No. 5 "shall vacate the house in suit on his own account and pay a sum of Rs. 714/- as the arrears of rent in respect thereof for the period in suit to the plaintiff." The appeal was also dismissed against defendant No. 6, Kalawati, since dead, and we are not concerned with her and her heirs in this appeal at all although the latter have been impleaded as parties, the particular portion of the premises having been admittedly sold away by the plaintiff to one Mathura Prasad.

The judgment of the lower appellate court in C.A. No. 1