The decree in O.S. No. 12 of 1915 did not have the effect of destroying the plaintiff's title as between the parties, and the mere termination of the tenancy by expiry of the term is no use to the defendants for as tenants they will still be bound by the same estoppel until they have surrendered possession.

Krishnan Pandalai, J.

1. The plaintiffs suit for recovery from the 5 defendants of whom 2 to 5 are minor sons of the 1st defendant of a portion of a house alleged to have been let by plaintiff to the 1st defendant in 1909 and for which he alleges that that defendant paid rent to him till 1915 has been dismissed by both the Courts below without taking evidence on these allegations though they were denied by the defendants on the preliminary ground that the suit is not maintainable by reason of the decree for possession of the suit house obtained in O.S. No. 12 of 1915 against the plaintiff and the 1st defendant by the Putta family who established their title to the house but who allowed that decree to become time-barred. The Lower Courts took the view that the passing of that decree had the effect as between the parties to this suit of destroying whatever rights the plaintiff may have previously had and of automatically putting an end to the tenancy pleaded by the plaintiff and that even if the plaintiffs allegations that he let the defendants into possession as tenants be true he would not be entitled to recover against them after that decree. The only question for determination is whether that view is correct.

2. Ex. I is the judgment in O.S. No. 12 of 1915. Five members of the Putta family were plaintiffs, the 5th defendant was another member who did not join as plaintiff and was therefore impleaded as defendant. The present plaintiff was 2nd defendant and his mother since deceased was 1st defendant. The present 1st defendant was the 4th defendant. He and 3rd defendant, another member of his family, were added as sub-tenants of a portion under the defendants 1 and 2 to whom the plaintiffs alleged they had let the whole house. The 3rd and 4th defendants remained ex parte. The 1st and 2nd defendants contested the suit setting up that they were not tenants but owners and also that they were in adverse possession for more than 12 years. It was found that the plaintiffs were the owners, that though the tenancy alleged was not proved, the possession of defendants 1 and 2 which had begun before 1897 was only permissive at the beginning and that though it may have become hostile later, i.e., in 1904, as more than 12 years had not elapsed thereafter before the suit was brought the suit was in time. A decree for possession was accordingly passed in favour of the plaintiffs. That decree was never executed and has now become barred.

3. It is difficult to see how this decree merely as a decree could have any such effect as the Lower Courts attribute to it as between the present parties who were co-defendants in that suit. The finding as to title like every other finding in the case was one between the Putta family on one side and these parties both of whom were defendants on the other. As between present parties the matters decided are certainly not res judicata and the respondents advocate admits that this is so. In spite of that judgment and decree, it is certainly open to the plaintiff as against these defendants to prove that the findings in it as to title and permissive possession are wrong and even if they were right to show that when this suit was brought he had acquired an unquestionable title by possession as owner for about 19 years. The statement of the District Judge that on the appellants own pleadings he has no title on which he can sue, for the fact that the decree became barred cannot revive a title once lost, shows that he entirely misapprehended the effect of judgments not inter partes. There is no question of reviving the appellants title because it was never lost as between the present parties. If those facts are proved again in this suit they will only show that so early as 1904 the present plaintiff and his mother had asserted adverse possession as against the true owner and as the true owner never executed the decree obtained by him his remedy to get possession was lost as a natural consequence of which they p