JUDGMENT:- (After stating the facts, his Lordship proceeded).

1-5. Several witnesses were examined and a large number of documents were brought on record by the parties in support of their respective cases. On an exhaustive consideration of the same, the learned Munsif recorded the following findings:-

(1) Plaintiff No. 1 is the legally married wife of Laxminarayan and plaintiffs Nos. 2 and 3 are Laxminarayan's issues through plaintiff No. 1.

(2) Satyanarayan is civilly dead and consequently the plaintiffs are successors-in-interest of late Sia Sukumari.

(3) Sia Sukumari never contracted to sell the disputed lands to defendant No. 2. The deeds of agreement Exhibits M and M-1 said to have been executed by him in favour of defendant No. 2 are spurious documents.

(4) Defendant No. 2 might have possessed the suit lands as a lessee from Sia Sukumari for three years, but she did not possess the lands thereafter. So far as defendant No. 1 is concerned, he never possessed the 'Ga' schedule land situated in mouza Bharatipur, but got possession of the 'Kha' schedule land situated in mouza Alikia and remained in possession for about 4 to 5 years before the institution of the suit. Before that, it is the plaintiffs who were in possession of the 'Kha' schedule land. So far as 'Ga' schedule land is concerned, the plaintiffs alone have been in possession thereof since after the death of Sia Sukumari. None of the defendants therefore acquired any title to the suit lands by adverse possession and the suit is therefore not barred by time. The rent receipts, the Pattas and Kabuliyats produced by defendants to prove possession are spurious ones.

(5) Ext. C the deed of agreement to sell and Ext. G the sale deed said to have been executed by defendant No. 2 in favour of defendant No. 1 in respect of the suit lands are not genuine nor are they for consideration, and assuming that they are genuine, defendant No. 1 has not acquired any title to the suit properties as his vendor defendant No. 2 had no title.

(6) Service of summons on the defendants in O. S. No. 17 of 1956 was fraudulently suppressed. The plaintiffs who are the successors-in-interest of Sia Sukumari having not been impleaded in that suit, they are not bound by the decree obtained by defendant No. 1 there. Plaintiff's claim in the present suit therefore is not barred by res judicata.

(7) Although in the present litigation, plaintiffs Nos. 1 to 3 are interested only in 'Ga' schedule land and their vendees plaintiffs Nos. 4 to 6 in 'Kha' schedule land, the suit is not bad for multifariousness of causes of action as plaintiffs Nos. 4 to 6 claim the properties through plaintiffs Nos. 1 to 3 as transferees from them.

(8) Satyanarayan having attained civil death is not a necessary party to the suit.

(9) The transfer of 'Kha' schedule land by plaintiffs Nos. 1 to 3 in favour of plaintiffs Nos. 4 to 6 is valid.

6. In view of these findings, the learned Munsif decreed the suit in favour of the plaintiffs. Defendant No. 1 filed an appeal and the learned Subordinate Judge practically upheld the findings given by the learned Munsif and dismissed the appeal. Regarding possession of the disputed lands, he gave a clear finding to the effect that plaintiffs Nos. 1 to 3 are in possession of Bharatpur lands (Schedule 'Ga') ever since the death of Sia Sukumari and that defendant No. 1 is possessing the Alikia lands (Sch. 'Kha' only) after the termination of Misc. Case No. 42 of 1958 in his favour and prior to that the plaintiffs were possessing the same. Against that decision, defendant No. 1 has filed the present second appeal.

7. In view of the findings of the Courts below on the questions of fact referred to above, Mr. L. K. Dasgupta learned Advocate appearing for the appellant did not make any attempt to assail them. He concentrated his attack on a point which is not to be found in the pleadings of the parties but which has been raised for the first time in this appeal. It was elicited from P.W. 11 that late Sia