S.S. Dhavan, J.
1. This is a plaintiffs’ second appeal from the concurrent decisions of the courts below dismissing their suit for partition of certain holdings and for damages against the defendant-respondents for cutting away the crops sown by the plaintiffs. The facts which are common ground or found by the court below are these. The first plaintiff appellant. Smt. Sukhni is the mother of the second, Smt. Patti. They are the widow and daughter of one Sita Ram, and claim the land in dispute as his heirs. It is common ground that Sita Ram was the fixed-rate tenant to the extent of a half-share in the holdings in dispute. He died in or about the year 1945-46, and left, in addition to his widow and daughter, a mother, Smt. Sukhbasi, who is the first defendant in the suit. At the time of his death the daughter Smt. Patti was about 3 years old. Within a year of his death Smt. Sukhni married again. It is not clear what happened to her daughter after her mother had re-married whether she continued to live with her mother or with her grandmother Sukhhasi and the other relations of Sita Ram.
On 23-7-1949 a suit was filed by Smt. Patti under the guardianship of a cousin of her late father alleging that her grand-mother had alienated her father’s share in the holding in favour of her (grand-mother’s) two nephews, and challenging the legality of this gift. She contended that as her mother had re-married she had forfeited her rights in Sita Rain’s holding which devolved on Smt. Patti as his daughter. She asked for a declaration that the sale deed executed by her grand-mother Sukhbasi in favour of her two nephews was illegal, void and of no effect, and that she was the lawful heir of her late father’s holding. The defendants in the suit were the grand-mother Sukhbasi, and her two donees. They are all defendants in the present suit. They resisted the earlier suit and denied that Smt. Patti had any right or interest in Sita Ram’s holding, and even denied that she was his daughter. They pleaded that the gift deed executed by Sukhbasi the mother of Sita Ram, in favour of her nephews was valid, as Sukhbasi was the legal heir of Sita Ram after his widow had forfeited her rights on her re-marriage.
During the hearing of that suit, Sita Ram’s widow–the mother of Smt. Patti and the first plaintiff in the present suit–was made a defendant on her own application and permitted to file a written statement. She pleaded that she was the rightful heir of Sita Ram and had not forfeited her rights on re-marriage. She relied on the personal law of inheritance governing the succession to Sita Rani’s holding. The court held that she was not divested of her rights in the land on account of her re-marriage and continued to be a fixed rate tenant of the holding. On this finding, it further held that the daughter Smt. Patti (plaintiff in that suit) could not claim any rights in the holding during the life time of her mother, and dismissed her suit as incompetent. The other findings
of the court in that suit were that the suit: was not barred by Section 183 of the U. P. Tenancy Act, nor by Section 42 of the Specific Relief Act; nor was it bad for non-joinder of parties. The court gave no finding on the defendants’ plea that Smt. Patti was not the daughter of Sita Ram.
2. The judgment was delivered on 9-12-1953. On 11-3-1955 the present suit was filed by Smt. Sukhni and her daughter Smt. Patti. The defendants in the suit are Smt, Sukhbasi (mother of Sita Ram) and her two donees Smt. Hugraji and Smt. Ramraji. The co-owners of the plaintiffs in the other holdings have also been impleaded as defendants, in view of the prayer for the partition of the holding. The plaintiffs alleged that after the death of Sita Ram, the first plaintiff inherited his half share as his widow and had been in possession as bhumidhar. It was further alleged that her re-marriage had not affected her rights as an heir and she continued to be in possession. It was also contended that the mother of Sita Ram Smt. Sukhbasi was not the heir of Sita Ram but had illegally executed a deed of gift in favour of her nephews, the second and third defendants. The plainliff relied on the judgment in the earlier suit declaring that Smt. Sukhni was the heir of Sita Ram and had not forfeited her rights on remarriage and contended that this was binding on the parties as res judicata.
The plaintiffs alleged that the defendants had illegally cut away the crops standing on the holding in their possession. They asked for a decree for Rs. 199 as damages for the cutting of the crops; in the alternative, a decree for possession in case the court found that the plaintiffs were not in possession; and a decree for partition of the holding according to the shares of the holders. It may be noted that partition was claimed on behalf of the first plaintiff Smt. Sukhni, while the other two reliefs were claimed on behalf of both plaintiffs.
3. The co-sharer defendants of the holding did not contest the suit. It was resisted only by Sukhbasi (mother of Sita Ram) and her two donees Smt. Hubraji and Smt. Ramraji The contesting defendants pleaded that Smt. Patti’s claim was barred by resjudicata, as in the earlier suit it had been held that she had no right or interest in the land. It was also contended that Smt. Patti was not the daughter of Sita Ram and had no rights, in the land, and that Smt. Sukhni had forfeited all rights in the holding on account of her re-marriage. It was also pleaded that the suit was barred by limitation.
4. The trial court held that suit was not barred by limitation and Smt. Patti was the daughter of Sita Ram. It also held that the first plaintiff. Sukhni, had forfeited her rights on her re-marriage and had no longer any right or interest in the land. It held that the second plaintiff. Smt. Patti was the rightful heir of Sita Ram and entitled: to a half share but it dismissed the suit of both the plaintiffs on the ground that Smt. Sukhni had no right or interest, and Smt. Patti had claimed
NO relief in her own right but merely supported the claim of Sukhni.
5. On appeal by the plaintiffs, the learned civil Judge held that Smt. Patti’s claim to be regarded as a tenant was barred by the decision in the earlier suit, and Sukhni’s suit was incompetent because she had forfeited her rights on remarriage. He rejected the plea of the plaintiffs that the decision in the earlier suit operated as res judicata in favour of the first plaintiff. He also held, reversing the decision of the trial court that the present suit was beyond time. Accordingly he dismissed the suit of the plaintiffs who have now come to this Court in second appeal.
6. Before I consider the questions which arise in this appeal, I would like to mention those findings of the lower court which are binding on me as they are findings of fact. It has been held that Smt. Patti is the daughter of Sita Ram and this finding was not challenged In this appeal. The only three questions which have been agitated on behalf of the appellants and the respondents are (1) whether the earlier decision or any part of it, operates as res judicata in the present dispute; (2) if so, which part of it operates in favour of which party; and (3) whether the present suit is within time,
7. I have heard learned counsel for both the parties at considerable length, read the judgments of the courts below, and examined the record including all the documents which are relevant to the question of res judicata. I am of the opinion that the view taken by the lower appellate court on the question of res judicata is erroneous. Smt, Sukhni was a co-defendant with Smt. Patti in that suit and filed a written statement in which she pleaded that she did not forfeit her rights on her re-marriage and that during her life time neither the plaintiff in that suit (her own daughter) nor the defendants (who are the defendants in this suit) had any right or interest in the land. On the other hand the contesting defendants in the present suit opposed Smt. Patti’s claim on the grounds which conflicted with the case of Smt. Sukhni. They pleaded that they had acquired a valid title from the mother of Sita Ram who was his heir whereas Smt. Sukhni had pleaded that she alone was the rightful heir of Sita Ram.
It is manifest that if one of these picas was accepted by the court, the other stood automatically rejected. It was held by the court, after hearing of the parties, that Smt. Sukhni had not forfeited her rights on re-marriage and continued to be the rightful heir of Sita Ram. As a corollary it further held that during the subsistence of Smt. Sukhni’s interest Smt. Patti’s suit was incompetent. This decision cannot operate as res judicata in the present suit after the court has found that Smt. Sukhni had forfeited her rights on re-marriage. The lower court could not treat the earlier decision as res judicata after its own finding
which destoryed the foundation of that decision.
Moreover, as Smt. Sukhni in whose favour the finding was given, has not raised the plea of
res judicata against Smt. Patti it will be deemed to have been waived. Res judicata must be expressly pleaded and if it is not, it will be deemed to have been waived.
8. The finding that Smt. Sukhni had not
forfeited her interests is not binding on the co-
defendants as they had no right of appeal, the
suit having been decided in their favour.
Therefore, the court in the present suit was
entitled to decide the question whether Smt.
Sukhni had forfeited her right on re-marriage.
They have both held that Smt. Sukhni had not
established any custom which would displace
the operation either of the personal law governing Hindi widow’s right to succession and forfeiture of this right on re
marriage, or of the order of succession pre
scribed in Section 35 of the U. P. Tenancy Act.
Learned counsel for the appellants had to con
cede that the finding that such a custom had
not been established is one of fact and cannot be
reviewed in second appeal,
9. But the learned Judge further held that the claim of Smt. Patti, the second plaintiff in the suit, is also barred because of the decision in the earlier suit. This finding is obviously erroneous. He overlooked that the suit was dismissed only on the ground that Smt. Patti could not claim any right in her father’s holding as long as her mother Sukhni was alive and her interest subsisted. This implied that after Sukhni had forfeited “her interest Smt. Patti could claim her right. The approach of the learned Judge was somewhat inconsistent and self-contradictory. On the one hand he held that the earlier finding that Smt. Sukhni did not forfeit her interest on re-marriage was not binding on the court in this suit and on the other hand he held that the dismissal of Smt. Patti’s suit which was based on that finding was binding as res judicata in this suit.
10. I, therefore, hold that the dismissal of Smt. Patti’s previous suit as incompetent does not operate as res judicata in this suit because the circumstances which barred the earlier suit no longer exist and she is entitled to press her claim in this suit. The trial court held that she was the preferential heir of her father Sita Ram after the mother had forfeited her rights on re-marriage. The lower appellate court did not consider this question on merits as it thought that it was concluded by the decision in the earlier suit. In my opinion, the view of the trial court is correct. Learned counsel for the respondents was unable to point out any error in the trial court’s finding on this question. I, therefore, hold that Smt. Patti became the lawful heir of Sita Ram on the re-marriage of her mother and is entitled to press her claim in this suit.
11. The next question is whether the suit is barred by limitation. The learned civil Judge held that the interest of the plaintiffs, if any, had been extinguished by limitation by the operation of Section 180 of the U. P. Tenancy Act of 1939. Mr. C.B. Misra who argued this part of the case with ability, submitted that
this finding of the learned Judge is erroneous because, he wrongly assumed that the plaintiffs could have filed a suit for the ejectment of the second and third defendants. Learned counsel pointed out that Section 180 provides a remedy for the ejectment of a person who has taken or retained possession of a plot of land without the consent of the person entitled to admit him to occupy such plot. But a person who is in joint possession of several plots of land without occupying any specific portion cannot be ejected by a suit under Section 180. There is no decision of this Court directly covering this question, but learned counsel cited a decision of the Board of Revenue reported in Mst. Sarsavati v. Sobhnath Upadhya, 1944 Rev. Dec. 532 (BR) in which the Board dismissed a suit under Section 180 of the U. P. Tenancy Act for the ejectment of a person in joint possession on the ground that the defendant was not in possession of any specific area and, therefore, no order for his ejectment could be passed.
Counsel conceded that this decision does not, have that status of a ruling in this court but he relied on it as a part of his own argument and also to show that in view of the law declared by the Board a suit for ejectment under Section 180 would have been rejected by the revenue court as incompetent. In my opinion the view taken by the Board of Revenue is supported by the language of the section itself It provides in effect for the ejectment of a person taking or retaining possession “of a plot of land …..” The words a plot of land” contemplate a specific piece of land of which a person has taken wrongful possession, but a person acquiring a share in a joint holding cannot be regarded as being in possession of “a plot of land”. 1 therefore, agree with the view of the Board that a suit under Section 180 could not be filed for the ejectment of a person who had a joint share in the holding but was not in exclusive possession of any particular area of it. The view of the learned appellate Judge that the plaintiffs’ title to the land had been extinguished is erroneous.
12. If a suit under Section 180 could not have been filed, the only remedy open to the plaintiffs was to sue for joint possesion in the civil courts. The period of limitation in suit other than one under Section 180 was 12 years. There is ample authority for this view. Nanku v. Pathar Din. AIR 1952 All 305. See also Bhagwan Das v. Kashi Prasad, AIR 1935 AH 417; Hirdey Narain v Babu Ram. AIR 1941 Oudh 172.
13. Learned Counsel for the respondents contended that the lower Court should not have permitted the appellants to add a relief for partition, because a suit for partition cannot be combined with a relief for the ejectment of a trespasser He conceded that in view of the findings of the lower court, the second and third defendants acquired no title to the land under the gift deed of February. 1949 and they must’ be regarded as trespas-sers. But learned counel contended vehemen-
tly that, a suit for the ejectment of a trespasser from an agricultural holding could be filed in 1955 only under Section 209 of the U. P. Z .A. & L. R. Act, and, therefore, the plaintiff cannot be permitted to combine in a suit for partition a relief cognizable only by the revenue courts. A short answer to this argument is that Section 209 is very similar to Section 180 of the U. P. Tenancy Act. It provides for the ejectment of a person taking or retaining possession of land otherwise than in accordance with the provisions of the law. But as held in the earlier decisions under Section 180 of the old Act, no order for the ejectment of a person not in possession of any specific area of the land can be pasted.
In the present case the defendants 2 and 3 merely acquired a share in a joint holding. Counsel for the respondents relied on what he called the admission of the first plaintiff in cross-examination that there had been a partition by private arrangements. But the entries in the revenue records clearly indicate that these defendants were in joint possession with other co-sharers and the learned appellate Judge relied on these very entries for his finding that they had been in possession. He expressed no opinion on the nature of their possession- presumably because he erroneously assumed that Section 180 applied to the present case. I am of the opinion that no suit for the ejectment, of the defendants 2 and 3 could have been filed under Section 209 of the U. P. Z A. & L. R. Act and the present suit for joint possession was the only remedy available to the plaintiffs. It appears from the record that a relief for partition was added with- the- permission of the lower appellate court. I see nothing wrong in giving this permission.
14. For these reasons the decision of the lower appellate court must be partially reversed. I allow the appeal of the second appellant Smt. Patti and decree her suit, for joint possession of the land in dispute and for partition of her share according to law, with costs throughout. The appeal of the first appellant is dismissed, but in the circumstances of the case; there shall be no order for costs against her.