Judgement

Appeal No. 43 of 1923) from a decree of the High Court (July 9, 1921) affirming a decree of the Subordinate Judge of Ghazipur (September 3, 1918).

The suit was brought by the respondents, as reversionary heirs of one Manohar Ojha, who died in 1856 without issue, and was for the recovery of land which had formed part of his estate.

The facts appear from the judgment of the Judicial Committee.

The decree of June 21, 1904, was in the following terms " It is decreed and ordered that the plaintiffs claim be decreed, declaring that the mortgage deed, dated December 25, 1899, executed by Musammat Oudha Kunwar, defendant No. 2, in favour of defendant No. 1, and decree No. 14 of 1903, dated March 31, 1903, for Rs. 1812-2-9, passed by the Court of the Subordinate Judge, district Shahabad, obtained by defendant No. 1 against defendant No. 2, are illegal and ineffectual as against the plaintiff reversioner."

The Subordinate Judge made a decree for possession. He held that the mortgage by Oudha Kunwar was made without necessity ; he further held that a grove, part of the property in suit, was " muafi," and was not " land held for agricultural purposes " within the limitation provision in s. 79 of the Agra Tenancy Act, 1901.

Upon an appeal coming before the High Court, the learned judges who constituted the Court, being of opinion that a ruling in Chhiddu Singh v. Durya Dei (( 1900) I. L. R. 22 A. 382.) was no longer good law by reason of later decisions of the Privy Council, referred the appeal to a Full Bench.

The appeal was heard by Banerji, Tudball and Sulaiman JJ., and the decree was affirmed, though upon a different ground.

The learned judges held that the decree made in 1904 was binding, not only between the reversioner who brought the suit in which it was made and the transferee, but also between the whole body of reversioners and the transferee or his representative in title. In their opinion the reversioner who sued represented the other reversioners, and explanation 6 to s. 11 of the Code of Civil Procedure. 1908, applied. Upon the question with regard to the grove the decision of the Court in Habibullah v. Kalyan Das (( 1914) 12 All. L. J. 1280.) was followed.

The appeal is reported at I. L. R. 44 A. 19.

1924. May 12. De Gruyther K.C. and Kenworthy Brown for the appellant. The decision of 1904 was not binding upon the parties to this suit; the parties to the former suit were different, and the present plaintiffs, as reversioners, do not claim through the then plaintiff within the meaning of s. 46 of the Specific Relief Act, 1877. Explanation 6 to s. 11 of the Code of Civil Procedure, 1908, does not apply, because the present plaintiffs had no " rights " when the decree of 1904 was made. There is no decision of the Bench whereby the decree obtained by the presumptive reversioner was res judicata in favour of the actual reversioner. Venkatanarayana v. Subbammal (( 1915) L. R. 42

I. A. 125.) was decided under Order xxii., r. 3 ; the question of res judicata was expressly treated as not arising, nor was it raised in Janaki Ammal v. Narayasami Aiyer. (( 1916) L. R. 43. I. A. 207.) The grove was land " held for agricultural purposes " within the meaning of s. 79 of the Agra Tenancy Act, 1901, and the suit so far as it related to the grove therefore was banned by limitation. [On that point reference was made to Kaju Mal v. Salig Ram (( 1923) L. R. 51 I. A. 11.); Murugesa Chetti v. Chinnathambi Goundar(( 1901) I. L. R. 24 M. 421.); King-Emperor v. Allan. (( 1901) I. L. R. 25 M. 627.)] Abdul Majid for the respondents was not called upon.

July 29. The judgment of their Lordships was delivered by LORD BLANESBURGH. This is an appeal against a decree of the High Court of Judicature at Allahabad of July 9, 1921, affirming a decree of the Subordinate Judge of Ghazipur of September 3, 1918.

The suit was brought by the respondents against the appellant for the possession of certain lands described in the plaint. These lands consisted o