1. This is an appeal against the Subordinate Judge of Bankura decreeing the plaintiff''s suit for recovery of 6 annas and 8 goondas share, in certain
land. The plaintiff claimed this property as purchaser of the interest of defendants 2 to 7 in the year 1913. During the execution proceedings
defendant No. 1 who is admittedly the owner of the remaining share of the property made a claim which was dismissed for default. The lower
Appellate Court has found that defendants 2 to 7 had only �th share to the property and that this was the interest which passed to the plaintiff by
his purchase, but that by reason of dismissal of defendant Mo. 1''s claim the defendant No. 1 cannot dispute the plaintiff''s title to the share claimed
in the suit which was in dispute in that claim case.
2. At the hearing of this appeal four points have been urged on behalf of the appellant defendant No. 1. The first point is that the decision in the
claim case is no bar to the defendant''s present claim since it was not a decision on the merits. Our attention has been drawn to the decision in the
case of Uma Charan Chatterjee v. Hironmoyee Debt (1913) 18 C.W.N. 770, to which one of us was a party. But that case has been clearly
distinguished in the case of Nagendra Lal Chaudhury v. Fani Bhutan Das (1918) 45 Cal 785 where it was pointed out that the decision of the
earlier case was based on the wording of Art. 11 of the Limitation Act of 1877 and that the alteration in the language of that article in 1908 has
made a change in the law. This latter ruling is conclusive against this contention on behalf of the appellant.
3. The next point taken is that the decision in the claim case did not bar an objection being made in the suit since defendant No. 1 remained in
possession. It is a settled law that adverse decision of a claim raised under O. 21, R. 58, prevents the unsuccessful party from asserting the right
thus claimed in any capacity whether as plaintiff or as defendant.
4. The third point taken is that the learned Subordinate Judge has disposed of the issue of limitation by a finding. ""On the evidence I find the suit is
not barred by limitation."" He has given no reason for reversing the decision of the Munsif who held that neither the plaintiff nor his predecessor in
interest had been in possession for 12 years before suit. But we find that when discussing the previous point in this case, point No. 1 in his
judgment, the learned Subordinate Judge has come to a clear finding that defendants 2 to 7 were in possession as rightful owners of 1/6th share of
the tank. This finding is sufficient to justify the decision that the suit is not barred.
5. The last point taken is that the plea that the mother of plaintiffs 2 to 4 was the benamidar of her husband who is still alive, was not properly
decided. No such contention was raised in the written statement. This objection was taken on behalf of defendant No. 1 on evidence to this effect
being given by one of the plaintiff''s witnesses. The defendant No. 1 then applied for an issue to be framed on this point and this the Munsif refused
to do The learned Subordinate Judge however has come to a distinct finding on this point and has held that the mother of these plaintiffs was not
her husband''s benamidar. It was open to the lower Appellate Court to come to a finding on an issue which has not been decided in the first Court
and this finding on a question of fact is final in second appeal.
6. The appeal fails on all the points taken and is dismissed with costs.
