The applicability of Order 2, Rule 2, Civil P. C., in a subsequent suit for ejectment, where the issue of possession was not specifically raised or determined in a previous suit for mesne profits.

1. The question which arises in this appeal is whether the suit for ejectment brought by the plaintiff is barred under the provisions of Order 2, Rule 2, Civil P. C.

2. The facts leading up to this question may be shortly stated. Tne land in dispute covers an area of 31.19 acres comprised in khata No. 88 of village Lodhas and Khata No. 7 of village Hetampur, of which defendant No. 6, the Maharaja of Dumraon, is the sixteen annas landlord. Defendants 1 to 5, who are the tenants, failed to pay arrears of rent, and, in consequence, the landlord instituted a certificate proceeding against them, for realising the rent. In Certificate Case No. 428 of 1936/37, the land in question was sold by the Certificate Officer and purchased by defendant No. 6. The sale took place on 1-11-1937, and confirmed on 3-1-1938. It is the case of the plaintiff that defendant No. 6 got delivery of possession through process of the certificate Court on 6-4-1938. Later on, defendant No. 6 made settlement of the land in favour of the plaintiff. The date of settlement is 28-10-1940. The plaintiff alleged that there was a dispute under Sec.144, Criminal P. C., between him on the one hand and defendants 1 to 5 on the other regarding the possession of the land. The case was, eventually, decided against the plaintiff by the Criminal Court which found that defendants 1 to 5 were in possession. On 6-12-1944, the plaintiff brought the present suit asking for a declaration of his title and claiming that he should, be restored to the possession of the land.

3. Defendant No. 6, the Maharaja of Dum-raon, filed a written statement, but did not contest the suit. Defendants 1 to 5, however, contested the suit, and their main defence was that the land in question was joint family property, and the Maharaja of Dumraon could not, by virtue of the certificate proceeding, obtain a valid title to the land. It appears that the certificate proceeding was taken out in the name of Isar Dayai Rai & it was contended on behalf of the defendants that the certificate proceeding could not affect the interest of the other members of the joint family.

4. The learned Subordinate Judge held, upon a consideration of the oral and documentary evidence, that defendant No. 1, Isar Dayal Rai represented the interest of all the members of the joint family, and that the certificate sale was binding upon all the defendants, and the Maharaja of Dumraon had obtained a valid title by the certificate sale-He further held that neither the Maharaja of Dumraon nor the plaintiff had obtained possession of the land by virtue of the writ of delivery of possession or by virtue of the settlement made with the plaintiff by the Maharaja of Dumraon. But, as the suit was brought, within twelve years of the date of sale, the Subordinate Judge gave a decree in favour of the plaintiff.

5. An appeal was taken to the District Judge of Shahabad : but the appeal was dismissed, and the findings of the Subordinate Judge were confirmed.

6. In support of this appeal, the main point stressed by Mr. Lalnarayan Sinha is that the suit should have been dismissed by the lower courts, since the provisions of Order 2, Rule 2, Civil P. C. operate as a bar. Counsel pointed out that, in 1939, the Maharaja of Dumraon had instituted a money suit, No. 47 of 1939, claiming mesne profits from defendants 1 to 5 for the period from 1-11-1937, to 6-4-1938. In that suit, defendants 1 to 5 alleged that they were not in possession of the disputed land, and they were not liable to pay mesne profits. This defence was overruled by the Court, and the Maharaja of Dumraon was granted a decree for mesne profits for the period claimed. The contention on behalf of the appellants is that the Maharaja of Dumraon ought to have claimed a decree for ejectment against defendants 1 to 5 in the same suit. In this connection, Counsel referred to the finding of the Subordinate Judge in this case that, in spite of the writ of delivery of possession, the Mahara