A suit for declaration that a sale deed is not for legal necessity and is not binding upon the plaintiff is barred by the decision in a previous title suit by the doctrine of constructive res judicata.

1. In the suit which is the subject-matter of this appeal the plaintiff asked for a declaration that he is the next reversioner to the estate of Balkhandi Jha and that the sale-deed dated 18-3-1941, executed by his widow, Musammat Arjanwati, was without legal necessity and not binding upon the plaintiff. The plaintiff also asked for recovery of possession over the land mentioned in Schedule 1 of the plaint which was the subject-matter of the sale-deed executed by the widow Musammat Arjanwati. The case of the plaintiff was that Becha Jha and Balkhandi Jha were the sons of one Shambhu Jha and that Musammat Arjanwati was the widow of Balkhandi Jha. It was alleged that after the death of Balkhandi Jha, his widow Musammat Arjanwati was maintained by the plaintiffs father, and thereafter she was maintained by the plaintiff. It was also alleged that the plaintiff and defendant No. 5 were the next reversioners of Balkhandi Jha, and the sale-deed executed by Musammat Arjanwati on 18-3-1941, in favour of defendant No. 1 was not for legal necessity and not binding upon the plaintiff. The suit was contested by defendant No. 1 on the ground that the sale-deed was a bona fide transaction and was genuine and executed for consideration and for legal necessity and was, therefore, binding upon the plaintiff. The plea of res judicata was also raised and it was contended that in a previous title suit, namely, Title Suit No. 193 of 1942, the question of validity of the sale-deed was put in issue and the suit of the plaintiff was dismissed on the ground that it was not genuine and was not for consideration.

2. The learned Munsif held upon these rival contentions that the sale-deed of defendant No. 1 was genuine and for consideration. He further held that the plaintiff was the next reversioner of Balkhandi Jha and the sale-deed was executed for legal necessity and was binding upon the plaintiff. The suit was accordingly dismissed by the learned Munsif.

3. On appeal the learned Subordinate Judge held that the sale-deed executed by Musammat Arjanwati was executed without legal necessity and was, therefore, not binding upon the plaintiff. He accordingly allowed the appeal and granted a decree to the plaintiff for recovery of possession over the lands mentioned in Schedule 1 of the plaint.

4. The main ground taken on appeal before us is that the lower appellate court was wrong in holding that the decision in the previous title suit, namely, Title Suit No. 193 of 1942, did not operate as res judicata. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. In the previous title suit, namely, Title Suit No. 193 of 1942, an issue was framed on the point whether the sale-deed was genuine and for consideration and for legal necessity. The plaintiff had brought that suit for a declaration of title with regard to the lands mentioned in Schedule 1 of the present plaint and also for recovery of possession in respect of those lands. The previous suit was dismissed on the ground that the sale-deed was collusive and without consideration. The Munsif did not, however, go into the question of legal necessity, because he wrongly thought that the question could not be_ gone into because all the reversioners had not been impleaded in the suit. It was argued on behalf of the appellant in this case that in spite of this observation of the learned Munsif the question of legal necessity must be deemed to have been impliedly decided against the plaintiff in the previous suit and, therefore, the question is barred by the principle of res judicata in the present suit. We think that this contention must be accepted as correct. In Fateh Singh V/s. Jagannath, Bakhsh Singh AIR 1925 PC 55 (A) the plaintiffs had in a previous suit based their claim on nearness of kin but did not mention the family custom but for the proof of which the nearness could not be proved and the suit therefore failed. It was held by the Pr