JUDGMENT

1. This is an appeal on behalf of the zemindar defendant in an action for recovery of possession of land commenced against him by the plaintiff respondent. The plaintiff claims title to the disputed land under leases granted by one Chand Mandal who holds under a putni created in his favour so far back as 1853 by the predecessor-in-title of the appellant. The putni lease contained a reservation under which the reserved forest and the service lands of the guards of the forest existing of old" were excepted from the grant. The controversy between the parties raises the question, whether the lands in dispute fall within or without the reserved forests. The plaintiff asserts that the lands are outside the reserved forests and are included in the grant which is the foundation of his title. He further alleges that he and his predecessors have been in adverse possession of the disputed land as part of the grant for a time much longer than the statutory period and have consequently acquired a right to hold the same as part of the leasehold grant. The defendant zemindar on the other hand asserts that the lands are part of the reserved forest and have been enjoyed as such by him and his predecessors for many years past. The Court of first instance found in favour of the plaintiff that the lands were included in the putni grant, and that even if they were not included, the plaintiff has by prescription acquired an indefeasible right to hold possession thereof. Upon appeal, the District Judge dismissed the suit on two preliminary grounds, namely, that the suit was bad for misjoinder of parties and causes of action and that the plaintiff had no interest in the property claimed as he was a benamdar for his wife. Upon appeal to this Court, that decision was reversed, and the case was sent back to the District Judge in order that it might be heard on the merits. The District Judge has now affirmed the finding of the Subordinate Judge that the disputed land is included in the grant which is the root of the title of the plaintiff. He has also found that the plaintiff and his predecessors had possession as alleged by them. The zemindar defendant has appealed to this Court and on his behalf the decision of the District Judge has been challenged substantially upon two grounds namely, first, that the decision in the suit of 1883 does not operate as res judicata, and, secondly, that the decision is not even admissible in evidence upon the question of title.

2. As regards the first objection taken on behalf of the appellant, it is necessary to explain the circumstances under which the litigation of 1883 was commenced. It has been stated to us that Hanumunt Singh, the founder of the family to which the appellant belongs, left a widow Rani Fulkumari and a son Raja Kissen Chand. Kishen Chand left a widow Luchmi Kumari. He had also two sons, namely, Kirti Chand who married Jumna Kumari, and Udoy Chand who married Subhadra Kumari. The appellant Raja Ranajit Sinha is the adopted son of Kirti Chand. It appears that in 1854 Fulkumari created an endowment which included the zemindari of which the disputed land originally formed a part. In 1865 Lachmi Kumari, the daughter-in-law of Fulkumari who was in possession of the properties under the terms of the Will, executed an arpanpatra in favour of her two daughters-in-law, Jamuna Kumari and Subhadra Kumari, who in their turn executed an angikarpatra in favour of their mother-in-law. In 1887 Lachmi Kumari executed a Will in which she made various dispositions of her estate inclusive of the debutter properties. Under this Will the appellant was appointed shebait of the debutter properties. The Will recites that on the 22nd February 1879 Lachmi Kumari had executed an arpannamah in favour of her daugters-in-law under which she had authorised them to make, acquire and grant settlement, etc., in respect of the debutter properties although she had not vested them with the right of shebait or any right of proprieto