- (1.) THIS is a plaintiff's appeal arising out a suit for a declaration that the plaintiff is entitled to one-eighth share in the property in suit and for delivery of possession over one-eighth share of one item of the disputed property. The property in suit belonged to. one Bhagirathi Singh. On his death his widow Smt. Chandra Pati succeeded him. But she too died in April, 1947, leaving the plaintiff Ram Surat Singh and Achhaibar and six others as the next collaterals of Bhagirathi singh. There was also the contesting defendant Ragho Sewak Rai who has been arrayed as defendant no. 9 in the present suit and who claims to be the sister's son of Bhagirathi Singh and as such the nearest reversioner of Bhagirathi Singh. During her life-time Smt. Chandra Pati executed a usufructuary mortgage in favour of Prithipal Singh and another person in respect of some of the property left by Bhagirathi Singh. This deed is dated 14-6-1917. On 31-5-1934 she executed a deed of relinquishment surrendering the whole estate in favour of ragho Sewak Rai, defendant No. 9, whom she described in the deed of relinquishment as sister's son of Bhagirathi Singh. Then she changed her mind and in 1937 filed a suit (No. 506 of 1937)for the cancellation of the deed of surrender. In this suit she alleged that the deed of surrender had been obtained from her by means of fraud and misrepresentation and that Ragho Sewak Rai was not at all the sister's son of 'bhagirathi Singh. This suit was "dismissed on 2-9-1938. Chandra Pati ultimately died in 1947. After her death two suits were filed. One was by Ram Surat Singh appellant one of the collaterals of Bhagirathi singh, and the other was by Achhaibar Singh respondent No. 6, another collateral of Bhagirathi singh of the same degree as Ram Surat Singh. The appellant's suit was for a declaration and possession, as already stated, while Achaibar's suit was for redemption of the mortgage of 1917 which had been executed by Chandra Pati. It may be mentioned that after Chandra Pati had executed a deed of surrender in favour of Ragho sewak Rai, the latter sold the mortgaged property to one Sanno Devi who redeemed the mortgage, and, therefore, in Achhaibar's Suit Sanno Devi, Ragho Sewak Rai and all the other nearest collaterals of Bhagirathi, namely the appellant and the other six collaterals, were impleaded, Achhaibar and the other six collaterals were also impleaded by the appellant in his suit along with Sanno Devi and Ragho Sewak. So in both the suits the parties were the same.
(2.) IN Achhaibar's suit the appellant filed a written statement in which he supported Achhaibar singh and also prayed that a decree for possession over his one-eighth share be also passed a relief which he had claimed in his own suit. Achhaibar Singh's suit was dismissed on the ground that ragho Sewak Rai was the sister's son of Bhagirathisingh and was the nearest reversioner and entitled to succeed. The appellant's suit was also dismissed both on the merits upon the finding that Ragho Sewak rai was the sister's son, as also upon the ground that the decision in the suit filed by Chandra pati for the cancellation of the deed of surrender operated as 'res judicata' because Chandra Pati must be deemed to have litigated in that suit in a representative capacity on behalf of all the future reversioners to the estate. Achhaibar Singh submitted to the decree and did not appeal. The appellant appealed against the decree in his own suit but did not appeal against the decree in the suit of Achhaibar Singh. Both the suits, it may be mentioned, had been dismissed by the munsif by a common judgment.
(3.) THE lower appellate Court dismissed the appellant's appeal upon the ground that he not having filed an appeal from the decree in Achhaibar's suit the appeal was barred by the principle of 'res judicata' by reason of the decision in Achhaibar Singh's suit. The lower appellate court did not decide the question whether the decision in Chandra Pati's suit of 1937 also operated as 'res judicata' as the Munsif had held. The lower appellate court did not decide the further question of fact whether Ragho Sewak Rai was the sister's son of Bhagirathi Singh.;