K.L. Pandey, J.

This is a defendant's appeal against the reversing judgment of the lower appeal Court by which the plaintiff's claim for possession of malik-makbuza plots khasra Nos. 95 and 148 of village Chilachond Khurd and for mesne profits was decreed.

In order to appreciate the questions in controversy, the genealogy accepted by the lower appeal Court is given below:

The facts no longer disputed are these. The malik-makbuza plots in dispute were owned by Surat who died on 7th May 1953 leaving behind him surviving his widow Mst. Tulsi. She also died only a week later. Thereupon, Mst. Binia and her son Kishorilal sold the disputed plots to the defendant by a deed dated 13th July 1953. It may be mentioned here that, according to the genealogy given above, Mst. Binia is a daughter of an uncle of Surat. Subsequently, one Sukkha, who claimed to have inherited the two plots from Surat, executed in favour of the plaintiff a registered lease deed dated 8th June 1963 for a period of three years and then a sale deed dated 4th April 1955 in respect of those plots. Still another person, Jagan, filed Civil Suit No. 60-A of 1953 in the Court of Civil Judge, 2nd Class, Narsimhapur, laying claim to the plots. He impleaded the present plaintiff and defendant as defendants in the suit. After contest, the suit was dismissed and an appeal filed against that decision met the same fate.

According to the plaintiff, Sone had, besides Hiralal and Parasram, a third son Khuman and Sukkha was a descendant of Khuman through his father Dharamdas and grandfather Daulat. That being so, Sukkha, being Surat's grandfather's brother's grandson, inherited the disputed plots in preference to Mst. Binia who is Surat's grandfather's brother's son's daughter. The plaintiff claimed title to the plots under the sale deed executed by Sukkha and averred that the defendant wrongfully took possession of the plots in July 1953.

In answer to the plaintiff's claim, the defendant pleaded that the decision in Civil Suit No. 60-A of 1953 to the effect that Sukkha was not related to Surat operated as res judicata. Denying that Khuman and his descendants were related to Parasram and Hiralal, the defendant averred that Daulat, who was a son of Chensa, was unrelated to Khuman.

The Court of first instance accepted the defence and dismissed the suit. The lower appeal Court reversed that decision holding that the judgment in the earlier suit did not operate as res judicata and that the family tree, as given in paragraph 2 above, showing that Sukkha was related to Surat as therein disclosed, was duly established. In this appeal, the defendant has challenged the two findings on which the decision of the lower appeal Court is grounded.

On the first question, I am of opinion that the lower appeal Court's view that the earlier decision does not operate as res judicata is correct. In the first place, since the Judge in the earlier suit held that Jagan was not a son of Surat's sister, that by itself disentitled Jagan to any relief and it was not necessary to further decide which of the other claimants has a preferential right to inherit Surat. In other words, the decree in that suit is not based on the finding that Sukkha was not related to Surat. It is not that the distant relationship of Sukkha to Surat stood in the way of Jagan. That being so, the question about Sukkha's relationship could not be regarded as directly and substantially in issue in that suit and any decision on that question would not operate as res judicata: Asrar Ahmed v. Durgah Committee, Ajmer AIR 1947 PC 1. Also, since Sukkha succeeded in that suit on another plea and could not appeal against the adverse finding, the plea of res judicata cannot be grounded on such a finding: Midnapur Zamindari Company, Limited v. Naresh Narayan Roy AIR 1922 PC 241 : 48 IA 49. Finally, since the contention involves a plea of res judicata between co-defendants, the following conditions must be fulfilled before it can be accepted:

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