Kendall, J - (1.)This appeal arises from a suit brought by one Sham Dat Rai for a declaration that Decree No. 184 of 1921, relates to a plot of land bearing No. 649 at the Survey of 1273 Fasli, and not to the cultivatory holding of the plaintiff which bears the No. 985/38 of the Survey of 1301 Fasli now numbered 355, 366 and 367, and also for joint possession against the defendants Nos. 1 to 8. The defendants Nos. 9 to 12 were said to be in joint possession with the plaintiff. Other reliefs were asked for, which need not be enumerated here. The parties to the appeal are relatives who have been litigating over this or the adjoining land for about a quarter of a century, and evidently regard litigation as an amusement.
(2.)It is necessary for the sake of clearness to re state the facts as shortly as possible. In 1906 the present respondents sued for recovery of possession of the plot now in suit, calling it No. 985/38 according to the Survey of 1301 Fasli, and identifying that number with No. 649 of the earlier settlement. The present plaintiff-appellant was defendant in that suit and an ex parte decree was given against him. In 1921 the respondents--who had obtained possession under the decree of 1906 but had been again dispossessed--sued again for the recovery of this plot and another, again alleging it to be No. 985/38 of 1301 Fasli. The plaintiff-appellant defended the suit and alleged that he had no knowledge of the ex parte decree of 1906, which he wished to have set aside; but he lost his case and the Munsif gave a decree to the present respondents, restoring to them possession of No. 985/38 of the settlement of 1301 Fasli. The plaintiff-appellant's present suit is in defiance of these two decrees of 1906 and 1921. He made allegations of fraud in his plaint without being very definite as to the nature of the fraud exercised. I need not, however, pursue this question further, because the lower Appellate Court has found as a fact that there was no fraud. Indeed, the trial Court seems to have been very doubtful on this point, for it remarked "I am not ready to go to the extent of holding that the defendants employed actively any fraudulent trick in obtaining the decree of 1921", and pointed out that the plaintiff had actively contested the suit of 1921 and knew all about the ex parte decree of 1906. It is not suggested in argument that the decree of 1921 can be set aside unless it is proved that the plaintiff was prevented from having his claim adjudicated therein by fraud. What has, however, been argued at some length and with some plausibility is this. In a later suit instituted in 1923 certain persons, stated to be co-sharers of the plaintiff, (that is to say in joint possession of the plot in suit, though not members of the same family) instituted a suit against the present defendants-respondents for a declaration that the plot in suit, which they called No. 985/38, was their occupancy tenure, and they obtained a decree. The present plaintiff-appellant did not join in that suit as a plaintiff, but he was arrayed among the defendants, and, of course, did not contest the suit. It is argued then that even if the plaintiffs appellant is bound by the Mnnsif's decree of 1906, the defendants-respondents are bound by the decree of 1924, and as the decree binding the respondents is of later date than the one binding the appellant, it must follow that the decree of 1921 binding the appellant should be ignored. For this proposition the learned Counsel for the appellant relies on two decisions of this Court, viz., the cases of Mallu Mal V/s. Jhamman Lal 1 A.L.J. 416 and Amar Singh v. Gobind Ram .
(3.)This plea was not even suggested by the plaintiff in his plaint. He only refers to the suit of 1923 incidentally in para. 12 of his plaint, and even then it is only to mention that in that suit he obtained his knowledge of the earlier decrees, and not in order to plead that the decree in that suit would operate as res judicata against the defendants. Consequently no issue was framed on the point, and it is barely mentioned at the end of the judgment of the lower Appellate Court. However, it raises a question of law and it is mentioned in the grounds of appeal.