A decree in a title suit declaring a person to be the next reversioner does not operate as res judicata on the issue of who is the next reversioner in a subsequent suit for possession, as the cause of action for the suit for possession arises only when the succession opens.

Kamla Sahai, J.

1. This appeal by defendants Nos. 1 and 4 arise out of a suit for possession of some lands partly in village Shattar and partly in village Dikshitpur and for mesne profits.

2. Admittedly, Sheosaran Mahto was the last male holder. He was governed by the Mitakshara School of Hindu law. He died, and, after his death, his widow, Musammat Razali, came into possession of his lands, She executed four sale deeds in favour of defendants Nos. 1 to 4 in respect of different properties. The plaintiff, who is a gotia of Sheosaran Mahto, instituted Title Suit No, 262 of 1950 for a declaration that the sale deeds were executed by the widow without any legal necessity, and hence they were not binding upon Sheosaran Mahtos estate. The suit was decreed ex parte on the 2nd March, 1951; Musammat Razali died in Bhado, 1364 Fasli, equivalent to 1957 A. D. All these facts are admitted

3. The plaintiffs case is that he asked the defendants after the death of Musammat Razali to make over possession of the disputed lands to him, but they did not comply. Hence, he has instituted this suit for possession and mesne profits.

4. The case of the defendants is that, at the time when the succession opened on the death of Musammat Razali, the plaintiff was not the next reversioner of Sheosaran Mahto; the next reversioner was Musammat Paudharia, sister of Sheosaran Mahto. Hence, the plaintiff is not entitled to a decree, as praved for by him

5. The learned Munsif, who tried the suit held that Paudharia was the sister of Sheosaran Mahto, that, that being so, she was the next reversioner, and that she was, and the plaintiff was not, the next reversioner at the time when the succession opened. Hence he dismissed the suit. The plaintiff filed an appeal, and the appeal was heard by the 2nd Additional Subordinate Judge Chapra. He has affirmed the finding of the learned Munsif that Musammat Paudharia is the sister of Sheosaran Mahto, and hence she and not the plaintiff was the next reversioner at the time when the succession opened. He has, however, held that the decision in title Suit No. 262 of 1950 operates as res judicata in the present case on the point that the plaintiff is the next reversioner. Hence, he has held that the question as to who is the next reversioner of Sheosaran Mahto cannot be considered in this case. In this view of the matter, he has allowed the appeal and has decreed the suit.

6. I may mention one more fact. Defendants Nos. 2 and 3 died during the pendency of the appeal in the lower appellate Court. The plaintiff, who was the appellant in that Court, did not get their heirs substituted in their places. The appeal, therefore, abated in so far as those heirs were concerned. The learned Additional Subordinate Judge has therefore, said that the plaintiff would not be entitled to recover possession or to a decree for mesne profits as against the heirs of defendants Nos. 2 and 3. Hence, he has decreed the suit only in respect of defendants Nos. 1 and 4. In my Judgment, the learned Additional Subordinate Judge should have considered whether the appeal, having abated in so far as the heirs of defendants Nos. 2 and 3 were concerned, had or had not abated as a whole. As the decree that the plaintiff was not the next reversioner and, as such, was not entitled to a decree for possession and mesne profits had become final in so far as defendants Nos. 2 and 3 were concerned, the learned Subordinate Judge should have considered the point whether the decree, if passed against defendants Nos. 1 and 4, would be a decree contradictory to the one which has become final as against the defendants Nos. 2 and 3.

7. However, Mr. A. N. Chatterji, who has appeared on behalf of the appellants in this Court, has argued that the learned Subordinate Judges decision on the point of res judicata is erroneous in my judgment, his argument is correct and must prevail. It is well settled, that, when a reversioner institutes a suit in the life time of the w