1. The subject-matter of the litigation, which hasculminated in this appeal, consists of an area of 600 bighas of land describedin two schedules attached to the plaint. The plaintiffs claim the lands ascomprised within village Dhobakhali, included within Taluk Joar Santoshpur,appertaining to estate No. 3840 of the Backergunj Collectorate. The defendantscontend that the disputed lands are comprised within village Gajalia, includedin a howla under a nim-osuth-taluk subordinate to an osuth taluk carved out ofTaluk Titai Sardar within estate No. 3841 of the Backergunj Collect-orate. Thehistory of the title of the plaintiffs may be briefly outlined. SatyakinkarGhosal, who owned a share of the zamindari appertaining to touzi No. 3840, diedon the 5th November 1833 and left two daughters, Sabitri and Sati. Before hisdeath, he had executed a Will on the 23rd October 1833 and had appointed hisbrothers, Satyaprasanna Ghosal and Satyasaran Ghosal, executors to histestament. By the Will, he left his properties to his two daughters in equalshares for their maintenance. Sabitri died in 1893 and Sati in 1896. Thesuccession to the estate of. Satyakinkar Ghosal thereupon opened out to the nearestreversioner, Satyasatya Ghosal, on whose death the estate passed into the handsof his sons. Shortly afterwards, the Court of Wards took charge of themanagement of the estate, and, on the 16th September 1903, executed theconveyance in favour of the plaintiffs whereupon their claim in the presentsuit is founded. One of the properties transferred by this deed of sale isvillage Dhobakhali of which the boundaries are set out in the schedule, andthen is added the clause, "within these boundaries according to the thakand survey maps." The case for the plaintiffs is that the tract of 600bighas claimed by them is included within village Dhobakhali and isconsequently their property. The defendants contest the claim, on the grounds,amongst others, that it is barred by res judicata and limitation; they alsoplead that the lands are comprised in their village Gajalia and never formedpart of the estate owned by the predecessors of the plaintiffs. The SubordinateJudge has pronounced no opinion upon the question of res judicata, but he hasfound against the plaintiffs on the merits as also on the plea of limitation,and in this view he has dismissed the suit. On the present appeal by theplaintiffs, three questions emerge for consideration, namely, first, is theclaim barred by the principle of res judicata; secondly, is the claim barred bylimitation; and, thirdly, are the disputed lands situated within villageDhobakhali in estate No. 3840

2. The plea of res judicata is founded on the decisions intwo previous litigations, which require separate consideration. In 1860 oneAnjamannessa Bibi, who then owned the nim-osuth-taluk under which thedefendants now claim, brought a suit against one Derastullah, the putnidar ofvillage Dhobakhali from the Receivers to the estate of Satyakinkar Ghosal.Satyasaran Ghosal, one of the executors to the estate of Satyakinkar Ghosal,was a proforma defendant to this suit, though he was not described as such, andappears to have helped Derastullah in his defence. The dispute related to aportion of the land comprised in the present litigation, and the suit wasbrought to set aside an order of the thak authorities, who had, according tothe then plaintiff, erroneously held such land to be included within villageDhobakhali and not in village Gajalia. The suit was valued at Rs. 715 and wasinstituted in the Court of the Stickler Amin of Barisal whose pecuniaryjurisdiction was limited to Rs. 1,000. The Sudder Amin dismissed the suit onthe 19th November 1862. On appeal by the plaintiff, the principal Sadder Aminof Backergunj decreed the suit on the 19th December 1863. He held that the thakmap was incorrect and that the disputed land was situated within Gajalia andnot Dhobakhali. This decision was confirmed by this Court on the 10th August1864, and it is worthy of note that the appeal to this Court had beenpreferred, not by the lessee alone but also, by Satyasaran Ghosal. Thedefendants contend that this decision operates as res judicata. The plaintiffsseek to meet the objection on four grounds, namely, first, that the suit wastried by a Sudder Amin whose pecuniary jurisdiction was limited to Rs. 1,000;secondly, that Satyasaran Ghosal was only a pro forma defendant and no reliefwas claimed against him; thirdly, that he was not a party expressly in hischaracter as executor to the estate of Satyakinkar Ghosal; and fourthly thatthe decision in a subsequent suit between the parties in 1891, that the decreein the suit of 1860 does not operate as res judicata is conclusive. We are notmuch impressed by the first two reasons assigned by the plaintiffs, but thethird and fourth must clearly prevail. As regards the first reason, it is plainthat to determine, for purposes of the application of the rule of res judicata,whether the Court which decided the former suit had jurisdiction to try thesubsequent suit, regard must be had to the jurisdiction of that Court at thedate of the former suit, and not to its jurisdiction at the date of thesubsequent suit; if the contrary view were adopted, decrees made by Munsifswould, in course of time, cease to be res judicata by reason of a gradualincrease in the value of the subject-matter of the litigation: Gopi Nath v.Bhugwat Pershad : 10 C. 607; Rughunath v. Issur Chunder: 11 C. 153; Kunji Amma v. Raman Menon : 15M. 494 : 2 M.L.J. 262. As regards the second reason, the vital point is not,how the Ghosal defendant was described, but what part he took in thelitigation. He not only helped the tenant-defendant with funds, but himselfactively contested the claim of the then plaintiff, as is indicated by hisappeal to the High Court, though he was described merely as a pro formadefendant. In such circumstances, he could not reasonably escape from theeffect of an adverse decision which he unsuccessfully resisted. The cases ofPuttappa v. Timmaji 14 B. 176 and Rahmubhoy v. Turner 14 B. 408 : 18 I.A. 6 areclearly distinguishable, as there the pro forma defendant against whom norelief was claimed took no part in the proceedings. As regards the thirdreason, it is pointed out that Satyasaran Ghosal, though at that time the solesurviving executor (as his co-executor Satyaprasanna had died in 1859) had atwo-fold capacity, he was himself part owner both of Dhobakhali and Gajalia.From this point of view, no doubt he could not be treated as a partynecessarily in his character as executor to the estate of Satyakinkar Ghosaland the decision would not operate as res judicata. The fourth reason assignedalso is conclusive in favour of the plaintiffs. In a suit between thepredecessors of the parties in 1891 where the effect of the decree in the suitof 1860 came under consideration, the Court held, rightly or wrongly, that thedecree did not operate as res judicata. This decision itself, even if it beassumed to have been erroneous in law, is conclusive between the parties:Aghore Nath v. Kamini Debi : 6 Ind. Cas. 554 [LQ/CalHC/1909/488] : 11 C.L.J. 461;Baij Nath v. Padmanand Singh : 14 lnd. Cas. 124 : 39 C. 848 :16 C.L.J. 154 : 16 C.W.N. 621; Mohamaya Prasad Singh v. Ram Khelawan Singh: 15 Ind. Cas. 911 [LQ/CalHC/1911/383] : 15 C.L.J. 684; Purna Chandra v. RasikChandra : 9 Ind. Cas. 568 [LQ/MadHC/1910/393] : 13 C.L.J. 119. We must hold,accordingly, that it is not open to the defendants to plead in this litigationthat the decree in the suit of 1860 operates as res judicata.

3. We have next to consider the effect of the decree in thesuit of 1891. In 1891, Sabitri and Sati, along with the tenure-holders underthem, brought a suit for recovery of possession of the lands now in dispute asagainst some of the present defendants and the predecessors-in-interest of theothers. The then plaintiffs alleged that the lands appertained to Dhobakhali,while the defendants urged that they were comprised in Gajalia. On the 31st May1893, the Subordinate Judge dismissed the suit. He found that the claim wasbarred by limitation, as neither the plaintiffs nor their predecessors had everbeen in possession. He also held that the thak map on which the plaintiffsrelied, was incorrect, and that the defendants were not hound by theproceedings of the thak authorities. Appeals were preferred to this Court bySati (Sabitri had died shortly after the decision of the Subordinate Judge) asalso by the lessees, plaintiffs. On the 29th August 1894, both the appeals werewithdrawn by the appellants, and it was ordered, with the consent of therespondents, that each party do bear his own costs in this Court, though, inthe application for withdrawal, it was stated that the respondents had agreedthat each party should pay his own costs both in the original Court and in theHigh Court. The effect of the withdrawal of the appeals was to leave the decreeof the Subordinate Judge dated the 3rd June 1893 in full operation, and, as itis admitted that the lands in dispute in the present suit are identical withthe lands to which the suit of 1891 related, the question necessarily ariseswhether the decree of the Subordinate Judge operates as res judicata. The firstpoint for consideration is, what was the status of Sabitri and Sati in relationto the estate of their father Satyakinkar Ghosal, now in the hands of theplaintiffs This turns upon the construction of his Will, dated the 5thNovember 1833. The Will was construed in a suit on the original side of thisCourt, instituted by Sabitri and Sati for construction of the Will of theirfather and for the administration of his estate. Pontifex, J., held on the 7thNovember 1876 that Sabitri and Sati were entitled to the interests of Hindudaughters in the estate of the testator. The question arose again in a suitinstituted in 1898 by the representatives of the reversionary heir to theestate of Satyakinkar Ghosal, after the death of Sati, for declaration that alease executed by Sabitri was not operative after the death of herself and hersister. It was ruled by this Court (Maclean, C.J., and Fletcher, J.) on the12th April 1907, in affirmance of the view of the primary Court, that theconstruction put by Pontifex, J., upon the terms of the Will was correct andthat it was also conclusive between the parties. There is, in our opinion, noroom for serious controversy that Sabitri and Sati took the interests of Hindudaughters. In the estate of their father under the terms of his Will. Thesecond point, accordingly arises, whether the adverse decision, pronounced inthe suit instituted by them, binds the estate in the hands of the reversioneras heir. The leading decision on the question of the effect of a hostilejudgment obtained against a Hindu widow or daughter in possession of the estateof the last full owner, is that of the Judicial Committee in Katama Natchier v.Raja of Shivagunga 9 M.I.A. 539 at p. 604 : 2 W.R. (P.C.) 31 : 19 E.R. 843 : 1Suth. P.C.J. 520 : 2 Sar. P.C.J. 305, where their Lordships stated theiropinion in these terms: "Unless it could be shown that there had not beena fair trial of the right in that suit, or, in other words, unless that decreecould have been successfully impeached on some special ground, it would havebeen an effectual bar to any new suit... by any person claiming in successionto her. For, assuming her to be entitled to the zamindary at all, the wholeestate would, for the time, be vested in her, absolutely for some purposes,though, in some respects, for a qualified interest; and until her death, itcould not be ascertained who would be entitled to succeed. The same principle,which has prevailed in the Courts of this country as to tenants-in-tail,representing the inheritance, would seem to apply to a Hindu widow; and it isobvious that there would be the greatest possible inconvenience in holding thatthe succeeding heirs were not bound by the decree fairly and properly obtainedagainst the widow." This exposition of the law way affirmed by theJudicial Committee in the cases of Pertabnarain v. Triloknath Singh: 11 I.A. 197 : 1 I.C. 186 : 8 Ind. Jur. 697 : 4 Sar. P.C.J.567 : Rafique & Jacksons P.C. No. 86 and Hari Nath v. Mothura Mohun 20I.A. 183 : 21 C. 8. But, as pointed out in Roy Radha Kissen v. Nauratan Lal 6C.L.J. 490, a decree obtained upon a fair trial in a suit by or against a widowoperates as res judicata regarding only the questions tried in the suit. Now,in the case before us, the Subordinate Judge dismissed the suit by Sabitri andSati on the two-fold ground that the claim was not established on the meritsand was barred by limitation. The reversioner is bound by this decision, unlesshe can prove that the decree was not fairly and properly obtained against theladies. An endeavor was made in the Court below--and the effort has beenrepeated here--to show that the appeal preferred to this Court by Sati waswithdrawn by her in collusion with the then respondents. This attempt haswholly failed. The Subordinate Judge rightly refused to accept the story thatthe appeal was withdrawn by Sati for a consideration. There is, on the otherhand, the significant fact that the lessees also withdrew their appeal at thesame time. The theory of collusion, consequently, fails. It is there contendedthat the withdrawal of the appeal was in the nature of a compromise anddestroyed the conclusive character of the original decree, which thereuponceased to be operative as a contested decree. This view cannot possibly besustained, for, as was pointed out by the Judicial Committee in Khunni Lal v.Gobinda Krishna Narain : 10 Ind. Cas. 477 : 38 I.A. 87 : 33A. 356 : 15 C.W.N. 545 (P.C.) : 8 A.L.J. 552 : 13 Bom. L.R. 427 : 13 C.L.J. 575: 10 M.L.T. 25 : 21 M.L.J. 645 : (1911) 2 M.W.N. 432 and Hiran Bibi v. SohanBibi : 24 Ind. Cas. 309 : 27 M.L.T. 149 : 1 L.W. 648 (P.C.) :18 C.W.N. 929, a compromise amounting to a bona fide settlement of disputeswill bind the reversioner quite as much as a decree on contest; in other words,that the principle laid down in Katama Natchier v. Raja of Shivagunga 9 M.I.A.539 at p. 604 : 2 W.R. (P.C.) 31 : 19 E.R. 843 : 1 Suth. P.C.J. 520 : 2 Sar.P.C.J. 305 is not limited to decrees in suits contested to the end. This ruleis subject to the qualification that the compromise was made bona fide for thebenefit of the estate and not for the personal advantage of the limited owner:Tarini Charan v. John Watson : 12 W.R. 413 : 3 B.L.R. 437;Indro Kooer v. Abdool Burkut 14 W.R. 146; Imrit Konwar v. Roop Narain Singh 6C.L.R. 76; Upendra Narain v. Gopee Nath : 9 C. 817 : 12C.L.R. 356: Sambasiva Ayyar v. Venkateswara Ayyar 31 M. 179 : 3 M.L.T. 369;Timmaji Amma Garu v. Subbaraju : 5 Ind. Cas. 640 [LQ/MadHC/1910/48] : 33 M. 473: 7 M.L.T. 340 : 20 M.L.J. 204 : (1910) M.W.N. 60, Rajlakshmi v. Katyayani: 12 Ind. Cas. 464 [LQ/CalHC/1910/423] : 38 C. 639. The view cannot be defendedon the principle that a qualified owner like a Hindu widow, daughter, or motheris bound, at her peril, to pursue a litigation in respect of the estate in herhands unremittingly to the ultimate Court of Appeal and that she cannot bonafide effect a settlement of the matter in controversy, even though suchcompromise be in the best interest of the estate. We hold accordingly that thedecree of the Subordinate Judge in the suit of 1891, which has not beensuccessfully impeached on the ground of fraud, coercion, collusion or any likereason, operates as res judicata between the parties to the present suit.

4. The plea of limitation raised by the defendants is soughtto be met by the plaintiffs by reference to Article 141 of the second Scheduleto the Indian Limitation Act, 1877, which provides that a suit for possessionof immoveable property by a Hindu entitled to possession on the death of aHindu female, must be brought within 12 years from the date when the femaledies. As Sabitri died in 1893 and Sati in 1896, and this suit was commenced onthe 7th June 1907, this seems, on a superficial view, to furnish a completeanswer; but on close examination, it transpires that the plaintiffs are ininextricable difficulty. It is plain that Article 141 applies only to cases whereit is proved that the last full owner was in possession at the time of hisdeath; if he himself was dispossessed and time began to run against him, theoperation of the Law of Limitation would not be arrested by the fact that, onhis death, he was succeeded by his widow, daughter or mother. In the words ofLord Kingsdown in Prannath Roy v. Rookea Begam : 7 M.I.A. 323at p. 353 : 4 W.R. (P.C.) 37 : 1 Suth. P.C.J. 367 : 1 Sar. P.C.J. 692 : 10 Eng.Rep. 331, a cause of action is not prolonged by more transfer of the titleAmrita Lal Bagchi v. Jotindra Nath Chowdhury 32 C. 165. Before the plaintiffscan rely upon Article 141, they must consequently prove that their predecessor,Satyakinkar Ghosal, was in possession at the time of his death on the 5thNovember 1833. This the plaintiffs have failed to establish, while thedefendants are able to produce a nim-osuth-taluk potta, dated 27th August 1831,to show that the possession of their predecessors commenced at that time. Thereis a further difficulty which the plaintiffs have to face. There is, as theSubordinate Judge points out, evidence on the side of the defendants that theywere in possession through their under-tenants at least as early as 28th June1834, It is well-known that under the law as it stood before the Limitation Actof 1871 came into operation, adverse possession which extinguished the title ofthe female heir also extinguished the title of the reversioner: Nobin Chunderv. Issur Chunder 9 W.R. 505 (F.B.) : B.L.R. Sup. Vol. 1008. Consequently, ifthe possession of the defendants commenced at any time anterior to 1861, thetitle of the plaintiffs, if any, would be extinguished before 1873, when theLimitation Act of 1871 came into operation; and, once the title was extinguishedwhile the Limitation Act of 1859 or Regulation III of 1793 or Regulation II of1805 was in force, it could not be revived by the introduction of theLimitation Act of 1871. Amirtaloll v. Rajoneekant : 2 I.A.113 : 15 B.L.R. 10 [LQ/PC/1875/2] : 23 W.R. 214; Hari Nath v. Mothura Mohun 20 I.A. 183 : 21C. 8; Fatimatuluissa v. Sundar Das 27 I.A. 103 : 27 C. 1004 : 4 C.W.N. 565;Khunni Lal v. Gobinda Krishna : 10 Ind. Cas. 477 : 38 I.A. 87: 33 A. 356 : 15 C.W.N. 545 (P.C.) : 8 A.L.J. 552 : 13 Bom. L.R. 427 : 13C.L.J. 575 : 10 M.L.T. 25 : 21 M.L.J. 645 : (1911) 2 M.W.N. 432. Now, theproceedings in the litigation of 1860 show that the predecessors of theplaintiffs were then out of possession, while in the suit of 1891, they failedto prove that they had ever been in possession. On the other hand, the evidenceon the side of the defendants indicates their possession as early as 1834 andunquestionably between the years 1853 and 1869. The position, then, is thatwhile the plaintiffs are unable to prove that their predecessors had anysubsisting title in 1873, when the Limitation Act of 1871 (with its Article142) came into operation, defendants have given a mass of reliable evidence,documentary and oral, to prove their possession through their tenants for muchlonger than 12 years prior to 1873. We accordingly bold, in concurrence withthe Subordinate Judge, that the claim of the plaintiff is barred by limitation,and, if their predecessors had any title to the disputed lands, such title was extinguishedbefore the Limitation Act of 1871 same into force.

5. Finally, question of title of the plaintiffs is full ofunexplained difficulties, of which no reasonable solution has been found. Theplaintiffs claim the disputed tract as included in village Dhobakhali underTaluk Joar Santoshpur. It is undoubtedly an element of weakness in their casethat they are not able to trace when and by whom this taluk was created, andwhat lands were comprised therein. But there is a much graver difficulty in theirway. Their conveyance sets out in detail the boundaries of Dhobakhali, but itis conclusively established that this disputed tract is not situated withinthose boundaries. The plaintiffs are consequently driven to fall back upon theadditional description inserted after the description of the boundaries,namely, "according to the thak and survey map." There is thus, tostart with, an inconsistency between the admitted boundaries and thedelineation as made on the thak and survey maps. The plaintiffs practicallyabandon the boundaries, and rely upon the thak and survey maps, which theycontend afford valuable evidence of title and possession at the time they weremade. In support of this position, reference is made to the cases of OmirtaLall v. Kalee Pershad 25 W.R. 179, Nobo Coomar v. Gobind Chunder 9 C.L.R. 305,Syama Sundari v. Jogobundhu : 16 C. 186, Jarao Kumari v.Lalon Moni : 17 I.A. 145 : 18 C. 224, Jagadindra Nath Roy v.Secretary of State : 30 I.A. 44 (P.C.) : 30 C. 291 : 5 Bom.L.R. I : 7 C.W.N. 193, Abdul Hamid v. Kiran Chandra : 7C.W.N. 849, Mirza Shamsher v. Kunj Behari Lal : 12 C.W.N. 273: 7 C.L.J. 414 : 3 M.L.T. 212, Dunne v. Dharani Kant 35 C. 621, Fazlur Rahim v.Nabendra Kishore Roy : 15 Ind. Cas. 341 [LQ/CalHC/1912/339] : 17 C.W.N. 151,Satcowri v. Secretary of State : 22 C. 252. Now it may beconceded that thak and survey maps may be presumed to have correctly delineatedthe boundaries of villages, and thus to furnish valuable evidence of possessionat the time they were made and consequently also of titles. This principle isof no assistance to the plaintiffs. Here the thak map was made in 1855 and wasfollowed by the survey map in 1858; but the accuracy of these maps was promptlychallenged by the predecessors of the defendants. In the suit of 1860, whichwas instituted expressly for the purpose of declaration that the thak map wasincorrect, the then plaintiff was successful, and in the subsequent litigationof 1891 and 1898, in which the present plaintiffs or their predecessors wereparties, the thak map was again found to be inaccurate. Under thesecircumstances, the presumption of accuracy applicable to the thak and surveymaps upon which the plaintiffs rely, has been amply rebutted. On the otherhand, an examination and comparison of the maps, as made by the SubordinateJudge and as repeated in this Court, shows that the decision in the suit of1860 as to the inaccuracy of the thak map was unquestionably right. Thisconclusion is strengthened by the large body of evidence of possession on theside of the defendants, which effectively negatives the thak map as evidence ofpossession in 1858. We agree with the Subordinate Judge that the thak map isunreliable, and that it no more establishes the title of the plaintiffs than itbinds the defendants.

6. The result is that the decree of the Subordinate Judge isaffirmed and this appeal dismissed with costs.

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Mohendra Nath Biswasvs. Shamsunnessa Khatun(19.06.1914 - CALHC)