JUDGMENT
1. This is an appeal by the plaintiff in a suit for ejectment. The case for the plaintiff is that he sued the defendants for arrears of rent in 1915 on the allegation that they held the disputed land under him as his tenants. In that litigation, the defendants pleaded that they were not tenants under the plaintiffs and set up a title in themselves. The Court, thereupon, framed an issue in the following terms : “Is there any relationship of landlord and tenant between the parties.” The trial Court came to the conclusion upon the evidence that the plaintiff had failed to prove the relationship of landlord and tenant between the parties and in this view dismissed the suit for rent on the 22nd March, 1915. On the 21st May l918, the plaintiff instituted the present suit to eject the defendants on the allegation that they were trespassers. The Court of first instance decreed the suit. Upon appeal the District Judge has reversed the decision. It was argued in the Courts below that the decision in the rent suit operated as res judicata. There can be no room for doubt that the decision does not operate as res judicata; but the parties are not agreed as to the precise effect of the decision in respect of the controversy in this litigation. The judgment of this Court in Mirgendra v. Krishna A.I.R. 1921 Cal. 355 shows that the decision in the rent-suit is conclusive upon one point and one point alone, namely, that the defendants were not the tenants of the plaintiff during the years for which rent was then claimed that is, from 13th April, 1910, to 12th April, 1913. No other questions were essentially in dispute at that stage, and they cannot rightly be regarded as matters directly and substantially in issue in the suit and finally decided therein. The effect of the decree in that suit upon this litigation then is, that the defendants must be deemed not to have been the tenants of the plaintiff since the 13th April 1910. The present suit, as we have stated was instituted on the 21st May, 1918, and the plaintiff must consequently prove that he was in possession of the disputed land within 12 years antecedent to that date. Accordingly, in view of the decision in the rent suit, he is to prove his possession after the 2lst May, 1906, and before the 13th April 1910. He might have been in possession during this period in one of two ways, namely, either by direct occupation or by possession through tenants. He has not established that he was directly in possession during this period: nor has he proved that the defendants during this period held as tenants under him. The defendants, on the other hand, have established that they have been in occupation for more than 40 years before the commencement of the present litigation. In such circumstances, the possession of the defendants must be taken to have been adverse to the plaintiff. The District Judge has consequently held rightly that the title of the plaintiff, if any, has been extinguished by adverse possession and that the suit must be dismissed with costs.
2. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.
