Full Judgment
Oldfield, J.
1. It appears that one Jai Ram had four sons, Basawan, Mata Din, Jhau, and Ram Bakhsh. They are all deceased, Jhau having died in 18CJK, and Rain Bakhsh some sixteen years ago, leaving a, widow Dallo, who died in 1871, and a daughter, the defendant in this suit. The plaintiffs represent Mata Din. On the death of Dallo they sued in 1874 this defendant, the daughter of Ram Bakhsh, for the property now in suit, alleging that they wore the heirs of her deceased father, Ham Bakhsh, and of Dallo; that suit was dismissed. They now sue her for the same property, alleging that Jhau and Hani Bakhsh lived and held the property as joint property, and that Jhau succeeded to Hani Bakhsh, and they are his heirs. The defendant pleaded that the claim was barred with reference to the decision in the former suit, and that it was also barred by limitation, owing to the long adverse possession of Dallo and the defendant. Both Courts have decreed the claim; the lower Appellate Court has held that there is no estoppel under the Evidence Act to bar the suit, and that Ram Bakhsh and Jhau held the property jointly, and this being so, it must be concluded that, at Ram Bakhsh's death, Jhau succeeded to his share, and the possession of Dallo in a part of the premises was not adverse to him.
2. It appears to us that this judgment of the lower Appellate Court is inconsistent with the findings on facts made; in the suit which the plaintiffs brought in 1874 against the defendant, and that the lower Appellate Court has failed to properly consider the plea which was raised as to the effect of the judgment on this claim, and wo consider that the suit cannot be maintained with reference to the former case. The plaintiffs brought the former suit on the ground that they were heirs of Ram Bakhsh and Dallo; that the property formed the estate left by Ram Bakhsh and Dallo; and they further alleged that Ham Bakhsh had lived separate in estate from all his brothers. When they brought that suit Jhau had been dead some years, and their present claim that he succeeded to the estate at Ham Bakhsh's death as his heir, and that he held if jointly with Ram Bakhsh, was never urged in the former suit, and is wholly inconsistent with their allegations in that suit. But it further appears to ns that the question of the nature of the estate, whether held separately by Ram Bakhsh from all his brothers, and the nature of Dallo's and the defendant's title and possession were questions which properly fell to be decided in that suit, and were in our opinion decided in favour of the defendant, and that the effect of that decision is to bar the claim both under Section 2 of Act VIII of 1859 and the Limitation Act. It was distinctly pleaded by defendant in that suit that after Ram Bakhsh's death Dallo had possession of the house in suit, and that defendant was entitled to the house by inheritance and the finding was as follows: 'it is therefore satisfactorily established that for a long period Ram Bakhsh, and after his decease his widow, Dallo Kuar, had separate and adverse possession of the property in dispute, and under such circumstances the daughter, i.e., the appellant has, according to Hindu Law, the right of inheritance to the estate in suit left by Ram Bakhsh and his widow as against respondents. We cannot reconcile the above with the present finding that Dallo's possession was not adverse to Jhau. Anyhow, the judgment in that case appears to us to be final in respect of defendant's title as against the plaintiffs whether they claimed in that suit as heirs of Ram Bakhsh or of Jhau, for at that time any title they had as heirs of Jhau had already accrued, and as we have remarked the entire character of Dallo's and defendant's title and possession as against them was opened out by the pleadings, and properly fell to be decided in that case, and cannot be raised again.
3. We decree the appeal with all costs and reverse the decrees of the lower Courts and dismiss the suit.