Sinha, J. - (1.)These appeals are by the plaintiffs of Title Suit No. 218 of 1947, one of whom, namely, Thakur Prasad, is the defendant in Title Suit No. 59 of 1.948. The suit properties in Title Suit No. 218 of 1947 are two houses and two golas in Sasaram town belonging to Jiut Ram, Thakur Prasad and other members of their family. Mohanlal-Motilal, a firm, had obtained a money decree against Jiut and others on 3-3-1925. In execution of the said decree, Mohanlal-Motilal purchased the properties in dispute on 11-7-1926. There was delivery of possession in favour of the decree-holder auction-purchaser on 18-1-1927. Jiut and other members ot his family executed a mortgage bond in favour of Doma Ram, father of Jagarnath, the plaintiff in Title Suit No. 59 of 1948, for a sum of Rs. 1000/- in respect of other properties. On 24-4-1927, Jiut and others executed another mortgage bond in favour of the said Doma Ram for a sum of Rs. 900/-. The properties mortgaged were properties other than the properties in suit. On 11-6-1929, Mohanlal-Motilal, who were purchasers at the auction sale in execution of the money decree executed a sale deed in respect of the two houses and one of the two golas purchased by them in favour of Doma Ham for Rs. 2,100/-. On 9-7-1929, Mohanlal-Motilal executed a mokarrari lease in favour of the said Doma Ram in respect of the remaining one gola. On 20-7-1929, a registered kerayanama was executed by Thakur Prasad in favour of Doma Ram agreeing to pay rent at Rs. 6/- per month for the two houses. On 30-7-1929, Doma Ram executed a moahda-nama (Ex. 3) in favour of Jiut Ram and other members of his family mentioning therein all the details as to how the properties purchased by Mohanlal-Motilal were acquired by him, and in that rnoahda-nama it was said that the sale deed, the mortgage bonds and the kerayanama were all farzi transactions; and out of the consideration of Rs. 2,100/- paid by Doma Ram to Mohanlal-Motilal as consideration tor the purchase of the houses and the go!a, a sum of Rs. 1,500/- was paid by Doma Ram, and jiut and others had paid Rs. 600/-. By this moahdanama, which was in favour of Jiut and other members of his family, Doma Ram agreed to reconvey the two golas and the two houses on payment of Rs. 1,500/- by Jiut and others; and further that if it was shown that during his possession Doma Ram had spent Rs. 600/-, as mentioned in the moahdanama, over construction of shops in the sehan of the two golas, then Jiut and others would have to pay Rs. 2100/-, namely, Rs. 1,500/- plus Rs. 600/-, and on payment of this amount whether Rs. 1,500/- or Rs. 2,100/-, as the case might be, these properties, namely, the two houses and the two golas, would be conveyed, after expiry of 12 years but within 18 years from the date of the moahdanama, to Jiut and others. In 1936, Doma Ram died leaving him surviving his son Jagarnath. In 1942, the said Jagarnath Ram instituted a mortgage suit for recovery of Rs. 900/- plus Rs. 900/- as intenst alleged to be due on the mortgage bond dated 24-4-1927. Jiut and others, who were defendants in that suit, contested the suit on the ground that the mortgage bond in suit was a farzi document, mainly relying upon the terms of the moahdanama (Ex. 3). In that suit, one of the issues, namely, issue No. 4, was as follows : "Is the bond in suit genuine and for consideration'? This was Mortgage Suit No. 156 of 1942. In that suit, it was held that the moahdanama (Ex. 3) was genuine, and, as mentioned in the moahdanama, the bond in that suit was farzi; and the suit was dismissed on 21-7-1943. Jagarnath, the plaintitf of that suit, preferred an appeal (Title Appeal No. 204 of 1945) against the deerce dismissing the suit. The appeal was remanded to the primary Court; and, against the order of remand, Jiut and others, the defendants in that suit, filed an application, namely, Civil Revision No. 554 of 1947, to this Court. This Court allowed the application, set aside the order of remand, and directed that the appeal should be beard by the Court below and disposed of in accordance with law. On 21-5-1948, the Additional District Judge of Shahabad, who heard the appeal, dismissed the same, agreeing with the trial Court's finding that the moahdanama was genuine and that the mortgage bond was farzi. On 14-9-1948, Second Appeal No. 1217 of 1948, filed by Jagirnath, the plaintiff in the mortgage suit, was dismissed by this Court. While the Second Appeal was pending, on 30-7-1947, Jiut and others filed the-present Title Suit No. 218 of 1947 which has given rise to Second Appeal No. 1736 of 1951 for specific performance of the contract embodied in the moahdanama for the sale of the two houses and the two gobs against Jagarnath, son of Doma, and the widow of Doma Ram. In 1948, this title suit was followed by another Title Suit No. 59 of 1948, giving rise to Second Appeal No. 1737 of 1951, by Jagarnath against Thakur Prasad for his eviction from the two houses and the golas and for rent and damages on the basis of the kerayanama mentioned in the said moahdanama (Ex. 3). Both the suits were tried together and were disposed of by one judgment on 20-9-1949, by which Title Suit No. 218 of 1947, the suit for specific performance of the contract embodied in the said moahdanama, was dismissed, and Title Suit No, 59 of 1948 was decreed in part; there was a decree for eviction and for rent, but the claim for damages was disallowed.
(2.)The first Court held, so far as Title Suit No. 218 of 1947 was concerned, that the moahdanama was not genuine, that the principle of res judicata had no application, and that the suit was not barred by limitation. The Court below has affirmed all the findings of the first Court except in regard to the question of limitation inasmuch as, according to that Court, the suit for specific performance of the contract was premature as it was filed a day too soon. So far as the decree of the first Court in Title Suit No. 59 of 1948 was concerned the appellate Court modified it and allowed a decree for rent only, and disallowed ejectment of the defendant on the ground of want of proper notice, although it held that the kerayanama was a genuine document.
(3.)Learned Advocate-General, on behalf of the appellants, has submitted that the Court below was entirely in the wrong in holding that the principle of res judicata had no application. He submits that when in the former suit, namely, Mortgage Suit No. 156 of 1942, the question about the genuineness or otherwise of the moahdanama was raised and the parties gave evidence and invited the Court to give its decision and decision has been given on that point, the question whether the moahdanama was genuine or not cannot be re-agitated. He has also submitted that the other findings of the Court below were coloured by the finding which the Court below arrived at in regard to the genuineness or otherwise of the moahdanama; and in that view of the matter, the judgment of the Court below is not sustainable in law. He has further submitted that the finding on the point of limitation was bad inasmuch as Title Suit No. 218 of 1947, for specific performance of contract, should have been held to be maintainable and not premature.