Agarwala, J.This is an appeal by the defendants against the decision of the Subordinate Judge of Shahabad decreeing the plaintiffs claim for Rupees 4,742 as the balance of the consideration of a sale of immovable property executed by the plaintiff in favour of the five defendants. The plaintiff is the widow of one Jangi Pande who was murdered on 30th April 1923, leaving the plaintiff and a daughter by his first wife. The sale-deed was executed by the plaintiff on 5th February 1924 and execution was admitted by the plaintiff before the Sub-Registrar on 7th February.

2. The deed conveyed to the vendees, who were her husbands gotias, 21 out of the 25 bighas of land which belonged to her husband and a dwelling house in consideration of a payment of Rs. 6,000. The sale-deed was executed for the plaintiff by her father. On 25th April 1924, the plaintiff, who was then a minor, instituted a suit through her father for a declaration that the sale-deed had not in fact been executed by her and that the deed was a forgery and void.

3. The Subordinate Judge held that the deed had been executed by the plaintiff, but that the vendees had not paid Rs. 4,742 out of the consideration mentioned in the deed. The plaintiff appealed to the High Court and the vendees filed a cross-objection. Both the appeal and the cross-objection were dismissed. The plaintiff then instituted the present suit in forma pauperis for recovery of Rs. 4,742 and interest at 12 per cent per annum. The defendants plead payment. They allege that Rs. 3,642 had been paid to the plaintiff in cash and that the balance had been utilised in paying off certain of the creditors of the vendor and her husband.

4. The recitals in the sale-deed are in consonance with the case of the defendants except that although the deed stated that the vendees had paid to the plaintiff Rs. 3,642 in cash, it is now admitted by them that this amount was not paid until some 15 days later. The deed states that Rs. 750 of the consideration money was utilised in paying off Rs. 300 to Naujadik Ram and Rs. 450 to Bishun Chand, two of the vendors husbands creditors, that Rs. 508 had been set off in satisfaction of a debt due to Ram Kirpal, one of the vendees, and that Rs. 1,100 had been set off in satisfaction of four sums of money due from the vendor to Indarjit Pande, another of the vendees. The learned Subordinate Judge found that the vendor had not borrowed Rs. 1,100 from Indarjit and that this amount is still due from the vendees to the vendor. Similarly, the learned Subordinate Judge has also held that the vendor did not receive Rs. 3,462 in cash and therefore that this sum is still due to her.

5. On behalf of the plaintiff three witnesses have been examined, viz., the plaintiff herself, her father Nanhku Tewari and her nephew Bhirgu Tewari. The plaintiff and her father deny that Rs. 3,642 was paid to her in cash or at all.

With regard to this cash item there is on the other side the evidence of the defendant Ram Kirpal, Pande, D.W. 2, Ramayan Pande, D.W. 3 Ganpat Pande and Indarjit Pande, one of the vendees. The learned Subordinate Judge has disbelieved the evidence of these witnesses and has accepted the evidence of the plaintiff and her father with regard to this item of Rs. 3,642.

6. In appeal it is contended by the learned advocate for the appellants that the plaintiff and her father are not witnesses on whom any reliance can be placed in regard to the transaction which forms the subject-matter of the present suit, because they are both witnesses who, in the former suit, denied execution of the sale-deed and supported their case by testimony which has been discredited. The appellants also rely on the fact that the sale-deed was produced by the appellants and it is contended that the defendants would not have been in possession of the sale-deed unless the consideration money had been paid. The case of the appellants is that after payment of Rs. 3,642 to the vendor, her father made over to them the registration receipt and that on the strength of that receipt and the endorsement thereon of the vendors father they obtained the sale-deed from the Registration Department.

7. The vendors father denies that he endorsed the registration receipt, but neither he nor the plaintiff has offered any explanation as to how that receipt came to be handed to Kirpal, one of the vendees. On behalf of the vendees the defendant Ram Kirpal has deposed that the father of the vendor wrote the endorsement on the registration receipt and gave it to him in the presence of the plaintiff after Rs. 3,642 had been paid to the latter.

With regard to the item of Rs. 1,100 said to have been set off against the four gums alleged to have been borrowed by the vendor from the defendant Indarjit, the sale-deed recited that Rs. 300 had been borrowed from Indarjit to meet the expenses of the prosecution of the persons who were tried for the murder of the vendors husband, that Rs. 500 was borrowed to perform the sradh ceremony of the vendors husband and the barkhi ceremony of the vendors mother in-law, that Rs. 200 was borrowed to perform the Gaya sradh of the vendors husband and the remaining Rs. 100 was borrowed for purposes of cultivation. (After going through the evidence, his Lordship held that the four sums alleged to have been advanced by Indarjit to plaintiff were not in fact advanced and proceeded.)

8. The question of the payment of Rupees 3,642, the oral evidence regarding which has been set out above, is more difficult to decide. On the one hand is the evidence of two of the defendants Ram Kirpal and Indarjit and their two witnesses Ramayan and Ganpat, and on the other hand there is the denial of the plaintiff and her father. The Court that heard these witnesses has disbelieved the evidence of the defence and I have no doubt that the defendant Indarjit has deposed falsely with respect to the Rs. 1,100. Defence witness Ramayan is a gotia of the defendants and defence witness Ganpat is a debtor of a relation of the defendant Ram Kirpal. Although neither of these witnesses had any personal interest in the present transaction which took place six years before they deposed in Court they both claim to remember the exact date and time at which Nanhku endorsed the registration receipt and the money was handed over to the plaintiff.

9. In support of the plaintiffs evidence the learned advocate for the respondent has referred to the judgment in the previous case, while the learned advocate for the appellant contended that this judgment is not admissible for the purpose of proving non-payment of the part of the consideration money which is now claimed. It is not contended by the learned advocate for the respondent that the judgment in the previous case operates as res judicata in the present case. The purpose for which a judgment is admissible in the subsequent proceeding was the subject-matter of discussion in the case of Purnima Debya and Another Vs. Nand Lal Ojha and Others, , where it was held that the actual decision and the findings arrived at in a previous judgment cannot be used as evidence to decide the points which are at issue in a different case except in cases coming under Sections 40 to 42, Evidence Act. In the case decided by the privy Council, Run Bahadur Singh v. Mt. Lachoo Koer (1885) 11 Cal 301, in which the admissibility of a previous judgment in a rent suit was in question, their Lordships observed:

Although the judgment in the rent suit is not conclusive, their Lordships cannot help attaching some weight to the decision of the Munsif and the Subordinate Judge both of whom heard the same case as that now before us and a good deal of the same evidence,

and it might be observed with reference to the judgment in the previous suit instituted by the present plaintiff that on the same evidence as has been given in the present case the Court that was dealing with the former case decided that the sum of Rs. 1,100 and 3,642 had not been paid; but that does not absolve the Court which is to decide the present case from forming its own opinion with respect to the evidence before it.

10. In considering whether the disputed part of the consideration was in fact paid to the plaintiff it is pertinent to inquire whether there was any reason why the plaintiff should, in the first place, so soon after her husbands death alienate the greater part of his properties, and, in the second place, why, if there was in fact pressing necessity for the alienation, she should, within two months of delivery of the sale-deed to the vendees, have instituted a suit challenging the validity of the deed. (After referring to the evidence, his Lordship held that the probability was that Rs. 4,742 was still due to the plaintiff as balance of consideration and proceeded.) No argument has been addressed to us with respect to the effect of the rejection of the cross-objection which was filed by the vendees in the appeal in the former case.

11. That suit had been dismissed in its entirety by the trial Court and therefore the defendant vendees were not entitled to file a cross-objection against the decree although they were entitled to support the decree in their favour on any of the grounds decided against them. The only relevancy of the question whether the consideration money had been paid in full, in the previous case, was for the purpose of testing the genuineness of the sale. The genuineness of the sale having been decided in favour of the defendant vendees it was open to them, in supporting the decree of the trial Court, to argue that the consideration money had been paid in full.

But as the decree itself was merely a decree dismissing the plaintiffs suit, it was not open to the defendant vendees to file a cross-objection against it. The cross-objection in the former appeal therefore was not maintainable and was bound to be rejected on the ground of its non-maintainability and the rejection of it was not a rejection on the merits.

12. In these circumstances the rejection of that cross-objection does not in any way prevent appellants from contending that the consideration money was paid by them. But, as I have already indicated, the evidence on which they rely for this purpose is not convincing, and in view of my finding that Rs. 4,742 of the consideration money is still due to the plaintiff the appeal must be dismissed.

James, J.

13. I agree.