A finding in a previous suit that land is not ancestral is not res judicata in a subsequent suit between the same parties or their privies, where the issue of the ancestral nature of the land was not directly and substantially in issue in the previous suit.

Khosla, J.

1. The dispute in this appeal relates to property left by Jangi who died on 18-8-1933. The facts briefly are that before his death Jangi adopted his daughters son Duni as his son. The adoption ceremony appears to have been performed in November 1928. In June 1933 Jangi executed a will leaving his entire property to his adopted son Duni. After Jangis death his property was mutated in favour of his brothers on the ground that they were his collaterals. Duni claiming to be both the adopted son of Jangi and the legatee of the will executed by him filed a suit for possession. In that suit the brothers of Jangi raised a plea that the property in dispute was ancestral. The suit was decreed In favour of Duni on the ground that he had succeeded in proving his adoption by Jangi. The defence plea that the land was ancestral was held not to Have been proved, but the trial Court observed that the same result would have followed, had the land been ancestral. This decision was upheld on appeal and the result was that Duni took possession of the property and remained in possession till his death. After the death the land was mutated in favour of his mother Rodi. Then the plaintiffs brought the present suit for possession alleging that the land was ancestral and on the death of Duni who left no issue the land should revert to them as collaterals. The defence raised on behalf of Rodi was that the finding in the previous suit regarding the nature of the land acted as res judicata. In the previous suit it had been held that the land was not ancestral and this finding having been given in a suit between the same parties could not now be challenged. All the Courts have held that the finding on this issue must be treated as res judicata and that the plaintiffs cannot now allege or seek to prove that the land is ancestral and on this finding the plaintiffs suit was dismissed. This is the only point requiring our decision now.

2. It is argued by Mr. Daya Krishan Mahajan on behalf of the plaintiffs that the nature of the land was not a relevant consideration in the previous suit and that Duni was bound to succeed if he proved himself to be the adopted son of Jangi, whether the land was ancestral or not. Similarly the defendants in that suit would have succeeded if they had been able to disprove the adoption relied upon. In this view of the matter (so it was argued) the issue relating to the nature of the land was not a matter substantially and materially in issue in that suit and any decision given upon it cannot be treated as res judicata. On the other hand it was argued by Mr. Karam Chand Nayar on behalf of Rod! that the plea with regard to the ancestral nature of the land was raised and a decision in respect of it was invited. A decision was in fact given and that decision cannot now be questioned.

3. It is clear that before a decision in a previous suit can be held to be res judicata, the conditions laid down in Section 11, Civil P. C. must be satisfied. The section reads "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title * * *". It is clear that in the present suit the ancestral nature of the land is a matter directly and substantially in issue, but the question is whether it was directly and substantially in issue in the previous suit brought by Duni. Dunis claim at that time was in effect this "I have been adopted by Jangi as a son and as his adopted son I am entitled to succeed to his property whether it is ancestral or non-ancestral. I am also the legatee under his will, This will take effect quite apart from the factum of adoption if the property is non-ancestral. But the will may be taken as evidence of adoption and then it will entitle me to succeed to Jangis ancestral property also." In this view of the m