JUDGMENT

1. This is an appeal by the plaintiffs in a suit for conformation establishment of title by inheritance and adverse possession of land, the suit was instituted on the 3rd July 1917 by Isup Ali, Goja Ali and Basaratulla, sons of Basir Mohammad, Talukaar against Gour Chandra Deb the son of Nehal Krisha Deb and his brothers instituted a suit against Isup Ali arid his brothers for establishment of their title to the homestead portion of the property involved in the first litigation, The relief in the first suit was valued at Rs. 348, and that in the second suit at Rs. 200. The two suits were tried jointly at the desire of the parties, as the disputed land and the causes of action were common to a certain extent. The first suit, was dispraised, while the second was decreed Thereupon the plaintiffs in the first suit who were the defendants in the second suit, preferred an appeal to the District Judge. The appeal was directed against the decrees in both the suits and was valued at Rs. 548. Copies of both the decrees were attached to the memorandum, which, however, set out the name of Cow Chandra Deb alone as the respondent. The memorandum could not, consequently, be treated as a valid Memorandum of Appeal against the decree in the second suit. That decree endured to the benefit of Gourchandra Deb and his brothers, and as the latter were not made parties to the appeal they could not be prejudiced, even it the decree of the primary Court were reversed. Indeed, as pointed out in Kali Dayal v. Nagendra Nath 54 Ind. Cas. 822 : 30 C.L.J. 217 : 24 C.W.N. 44 the appeal, treated as an appeal in the second suit, could not be heard as, even if successful, it would be in fructuous, because such of the plaintiffs as were not brought before the Court as respondents, would still retain the benefit of the decree of the primary Court. The appeal preferred to the lower Appellate Court was, consequently, defective in two respects, namely, first, that, contrary to established procedure, as explained in Rakhal Chandra Ternary v. Manmatha Nath Mitter 10 Ind. Cas. 415 : 15 C.W.N. 994.; Rakhal Chandra Tewari v. Monmotha Nath 24 Ind. Cas. 438 and Mahabir Prasad v. Bisheshwar Prasad 42 Ind. Cas. 4241 : 4 C.L.J. 512 one appeal was preferred, without an order for consolidation by the Court, against two distinct decrees in two separate suits; secondly ,that even treated as otherwise valid, the appeal was defective, in so far as it was intended to be an appeal in the second suit, inasmuch as some of the successful plaintiffs had not been joined as parties respondents, In these circumstances, the appellants in this Court have conceded that the appeal to the District Judge must be deemed to have been an effective appeal; only in respect of the decree in the first suit, and that the attempt to make it an appeal against the decree in the second suit was abortive. The District Judge has dismissed the appeal on the merits. The position thus is that, though there were two suits in the primary Court, decided by a common judgment, an appeal and a second appeal have been preferred in the first suit, while no appeal has been preferred in the second suit, with the result that the decree made therein has become final. On these facts, the respondent in the present appeal, which is directed against the decree of the District Judge made in affirmance of the decree of the primary Court in the first suit, contends that the trial of the question in controversy is barred by res judicata. The substantial matter in dispute in the first suit, as in the second, was, whether one Aleyer Khan was the real or beneficial owner of the property. This question has been answered in favour of the plaintiffs in the second suit, one of whom, as we have seen, is the defendant in the first suit. He is the respondent in this appeal, and he urges that the decision of this fundamental question, which forms the basis of the decree made in favour of himself and his brothers in the second suit, can