Das, J. -
(1.) This is a second appeal by the plaintiffs and arises out of a suit for partition. By the suit, the appellants, who are two brothers, claimed partition of their half share in Khewat No. 1/17 of village Adampur Tarari, Patti Kalan, Tauzi No. B. No. 1. The case of the appellants was that khewat 1/17 represented a separate and distinct 'takhta' of 6 dams, 13 cowries and odd interest in which the share of the appellants was 3 dams, 6 cowries and odd. The appellants claimed this share in the following way. It was alleged that there were two brothers called Modnarayan and Rampratap, and each of these two brothers had half share in the said 'takhta'. The proprietary interest of Rampratap was sold in a certificate sale held on the 18th of September, 1933 and was purchased by one Sk. Latif Hussain. The sale certificate showed that 6 dams, 9 cowries and odd share in village Adampur Tarari, Patti Kalan, relating to tauzi B. No. 1, separate account No. 36, was sold to Sk. Latif. Latif in his turn sold the purchased interest to the appellants by means of a sale deed dated the 7th of December, 1933. The appellants asked for mutation of their names in Register D and were recorded in respect of 4 dams, 11 cowries and odd share. In the record of rights finally published in 1914, Rampratap and one Mahabir were recorded as owners of the khewat, the khewat being khewat No. 1/17 of khewat, Part II, of revenue free lands. Rampratap's interest was shown as 3 dams, 6 cowries and odd, and Mahabir Mahto's interest as 3 dams, 6 cowries and odd. In 1912, the interest of Mahabir was given in 'thica' to Rampratap for a term of five years, and in khewat Part III Rampratap was recorded as the 'thicadar' in possession, Mahabir Mahto being shown as the landlord under whom the thicadar held. I may here state that the patti in question, namely khewat No. 1/17, comprised an area of 5.51 acres and there were three plots in the patti recorded in two holdings, holding No. 204 and holding No. 205; holding No. 204 was a holding of bakasht lands comprised in two plots, 1237 and 1238, 1237 having an area of 2.77 acres and 1238 an area of 2.64 acres. Holding No. 205 comprised of one plot only, plot No. 550, which was held by a raiyat on a small rent of Re. 1/- or so. On the strength of the entry made in Register D and the entries in the record of rights and on the basis of the purchase made by the appellants from Sk. Latif, the appellants founded their title and asked for partition on the plea that on the 30th of November, 1945, the respondents refused a demand for partition.
(2.) Three sets of written statements were filed, one by defendant No. 1, the second by defendant No. 3 and the third by defendants 2, 4, 5 and 6. The case of these defendants, who are respdts, before me, was that Mahabir Mahto alone was the owner of the khewat in question, and on the 19th of August, 1926, Mahabir transferred his interest by means of a sale deed to the respondents. Subsequently, there was a private partition as a result of which one of the respondents got plot No. 1238 and one bigha out of plot No. 1237 and another respondent got the remaining area of plot No. 1237. It was stated that the other respondents had no concern with the lands. It was also alleged that Rampratap Singh, who was a thicadar under Mahabir Mahto, got certain wrong entries made during the survey proceedings. On the 21st of June, 1924, Rampratap executed a deed of ekrarnama by which he admitted the mistakes which had been made in recording the interest of the parties in the survey proceedings and also admitted that plot No. 1237, with an area of 2.77 acres, was wrongly recorded in his name though the plot belonged to and was in possession of Mahabir Mahto. Subsequently, in 1932, there was a suit in the court of the Additional Munsif of Aurangabad in which the respondents were the plaintiffs and Rampratap Singh was a defendant. The suit related to the other plot, namely plot No. 1238, and it was held in the presence of and after contest by Rampratap, that the respondents were entitled to plot No. 1238. I may here mention that the judgment, exhibit C, shows that Rampratap was of unsound mind at the time and the suit was contested by a pleader guardian who represented Rampratap. It is worthy of note that both the deed of agreement and the decision in the title suit were before the purchase by Sk. Latif. The respondents claimed that they had been since a long time in exclusive possession by private arrangement as stated above. Put briefly, the case of the respondents was that the appellants neither had title nor possession of the property in question.
(3.) The learned Subordinate Judge accepted the case of the respondents and held that the appellants had neither title nor possession. He further held that with regard to plot No. 1238, the suit was barred, on the principle of res judicata, by reason of the decision given in Title Suit No. 38 of 1932. The learned District Judge, who heard the appeal, affirmed the finding of the learned Subordinate Judge on the point of title and possession, though he expressed the view that the question of possession was not very material, because if the appellants had title, the possession of one cosharer would be deemed to be the possession of all. On the issue of res judicata, the learned District Judge did not agree with the learned Subordinate Judge, but he thought that the finding in Title Suit No. 38 of 1932 could be used as a piece of evidence and on that footing he held that the appellants had failed to prove their title with regard to plot No. 1238. With regard to plot No. 1237, the learned District Judge held that the admission of Rampratap made in the deed of ekrarnama in 1924 was binding on the appellants.;