Kanhaiya Lal and Sulaiman, JJ.:— These appeals arise out of a suit by the plaintiff appellant for the possession of a certain house and for mesne profits. The house originally belonged to a person named Sheola Mal and was his self-acquired property. Sheola Mal had a son Mathra Das and a daughter, who was the mother of Raja Ram and Ram Babu. The allegation of the plaintiff was that Mathra Das had been adopted by Kunj Lal, the brother of Sheola Mal, that on the 13th of May, 1906, Sheola Mal made a gift of the said house in favour of Raja Ram and Ram Babu; that Ram Babu predeceased Raja Ram and left no issue, and that the said house was sold in execution of a decree obtained by Baij Nath against Raja Ram and purchased by the plaintiff on the 18th of September, 1917.

The defendants on the other hand denied that Mathra Das had been adopted by Kunj Lal and asserted that if such adoption took place, it was invalid because no ceremony of adaption was performed. It was further asserted that Mathra Das and Sheola Mal lived jointly and were joint owners of the said house and that on the death of Sheola Mal it devolved. On Mathra Das and his sons. The defendant Moti Lal claimed to have purchased that house in execution of a decree held by Kunwar Chand and others against the sons of Mathra Das on the 3rd of April, 1917. The other defendant Chandra Bhan claimed to have obtained this house from Moti Lal by virtue of a sale made by Moti Lal in his favour.

It appears that a suit had been filed in 1913 by Raja Ram for possession of the southern portion of the upper storey of the house in dispute against Musammat Kalawati, the widow of Mathra Das, and Ragunath, son of Mathra Das, which was dismissed on the 12th of August, 1913. The contention of the defendants was that the dismissal of that suit operated as res judicata.

The court of first instance found that the previous suit operated as res judicata so far as the southern portion of the upper storey of the house in dispute was concerned. It held the deed of gift executed by Sheola Mal in favour of Raja Ram and Ram Babu to be valid and Sheola Mal competent to execute it. It also held that the adoption of Mathra Das was proved and that the plaintiff had a good title to the house except as regards that portion about which the previous suit brought by Raja Ram against Musammat Kalawati and Raghunath had been unsuccessful. The lower appellate court, however, came to the conclusion that the adoption of Mathra Das was invalid and that the due execution of the deed of gift by Sheola Mal was not established. It also found that the finding in the previous suit that the deed of gift had not been proved operated as res judicata and was binding on the parties. It accordingly dismissed the suit.

The title of Sheola Mal to the entire house is no longer disputed. The genuineness and validity of the deed of gift are however questioned. The deed, is registered and is proved by the scribe to have been signed by Sheola Mal. But its due attestation is not established. The deed of gift recites that Sheola Mal had given his son Mathra Das in adoption to Kunj Lal, that Mathra Das was in possession of the property belonging to Kunj Lal in that capacity, and that his daughter's sons Raja Ram and Ram Babu, whose parents were dead, were having with him and were being maintained at his expense. It then goes on to convey the entire house to Raja Ram and Ram Babu. That gift was attested by several witnesses, who state that the scribe took it to them for attestation. The evidence has been considered by the lower appellate court to be insufficient to prove due attestation and the learned counsel for the plaintiff appellant concedes that he is not in a position to challenge the correctness of that finding. That being so, the deed of gift must be treated as inoperative.

There is another reason, however, why it is not open to the plaintiff to rely on the deed of gift in proof of his title. In the previous suit filed by Raja Ram against Musammat Kalawati and Raghunath, the execution of the deed of gift had been held to be not proved. That suit was decided after some portion of the evidence adduced by the plaintiff had been recorded. An adjournment had been obtained to produce other evidence on condition of the plaintiff paying certain costs to the opposite party, but those costs were not paid. When the case eventually came up for decision on the adjourned date, the pleader for the plaintiff stated that he had no instructions and the court proceeded to try the suit on the merits and came to the conclusion that the deed of gift had not been proved. That finding was a finding arrived at in a suit, to which the predecessor in title of the present plaintiff and the predecessor in title of the present defendant were parties, and it is not open to the plaintiff to go behind that finding in the present suit. It is argued on behalf of the plaintiff appellant that the court which tried that suit was not competent to try the present one, because the value of the property now in dispute exceeds the sum of Rs. 1,000, and the court which tried that suit could not therefore have tried the present one; but the value of the house as put down in the present plaint is only Rs. 1,000. There is an additional claim for Rs. 42 mesne profits; but that claim cannot be taken into account in determining whether the finding arrived at in the previous suit was arrived at by a court which was competent to try the subsequent suit. The finding in the previous suit therefore operates as res judicata in the present suit.

If that finding is binding on the parties to the present suit, the title, which the plaintiff seeks to establish by virtue of that deed of gift, must fail altogether. It is, however, contended that even if that gift be treated as invalid, the plaintiff ought to succeed because Raja Ram and Ram Babu would, on the allegations made in the plaint, be also the legal heirs of Sheola Mal and were entitled to his property on his death. That leads us to the question whether Mathra Das had been adopted by Kunj Lal and whether that adoption was valid. On that point it is necessary, in the first place, to refer to the deed of gift where the adoption is recited. In the second place, some evidence was adduced on behalf of the plaintiff to prove that adoption which was accepted by the courts below. The ceremony of Datta Homa was not shown to have been performed but the validity of the adoption can not be questioned now. As observed by their Lordships of the Privy Council in Bal Gangadhar Tilak v. Shrinivas Pandit (1), the performance of the ceremony is not really necessary where the adoptive father and the son to be adopted belong to the same gotra. The lower appellate court points out that according to the statement of Kama Mal, a witness produced by the plaintiff, Kunj Lal himself had been adopted by his brother-in-law Beni Ram and as Beni Ram must necessarily have been of a different gotra from Kunj Lal the adoption of Mathra Das by a person of a different gotra was invalid unless it was accompanied by the performance of the said ceremony. That was not, however, the ground set up by the defendants in their defence in derogation of the adoption. A solitary statement of that character elicited in cross-examination from a witness of the opposite party, which the opposite party had no opportunity for explaining, cannot be utilized for the purpose of founding an objection which had not previously been taken or put into issue. It is possible that the plaintiff might have a good explanation as to how that statement was made or as to how such an adoption had taken place and could have been valid. In any case a plea of that character cannot allowed to be entertained at a stage when it is not open to the other party to meet it by calling other evidence. In fact in the memorandum of appeal flied by the defendant in the lower appellate court, no such plea had been taken and that plea must therefore be ruled as inadmissible.

In any event the adoption of Mathura Das took place, according to the deed of gift, about 48 years ago and by virtue of that adoption Mathra Das was described as having been in possession of the property of Kunj Lal. In a suit filed in 1905 by a creditor of Mathra Das, the latter was described as the adopted son of Kunj Lal. The adoption has not been challenged by any member of the family during the last 48 years and though definite evidence is not now forthcoming to prove that the Datta Homa ceremony had been performed at the time the adoption took place, it is permissible to presume from the fact that the adoption had not been challenged for such a long period that if the ceremony was necessary, it must have been performed. In Chandra Kunwar v. Chaudhri Narpat Singh their Lordships of the Privy Council, relying on an admission of the factum of adoption made by one of the parties to the proceeding, observed that “the admission shifted the onus from the other party to the party by which such admission had been made, until, the presumption that admission was true was rebutted or satisfactorily explained.”

In Har Shankar Partab Singh v. Lal Raghuraj Singh (2), at page 534, their Lordships said that “where there was initial probability that the adoption was likely to have been validly made and the conduct of the parties cognizant of the facts has been at least consistent with such an hypothesis, there was sufficient material to justify a presumption that the adoption was valid, even though direct evidence to prove that the necessary preliminaries had been performed was, owing to the lapse of time, not available.”

The plaintiff could not have been reasonably expected at this distance of time to produce direct evidence to establish what preliminaries had been performed 48 years ago. Sheola Mal is dead. So is Kunj Lal. So also Mathra Das; the evidence which would have been available, had the adoption been challenged soon after it was made, has naturally disappeared with the lapse of time. In these circumstances it is reasonable to presume in the absence of anything to show the contrary that everything necessary that would have made the adoption valid was done; for if that had not been done, some one or other of the family of Sheola ??? Kunj Lal would have taken some steps within this long period to challenge the adoption or to claim the property that had been left by Kunj Lal. The ground upon which the lower appellate court has held the adoption to be invalid cannot therefore be accepted.

If the adoption is valid, the necessary result would be that the property of Sheola Mal would devolve on his death, irrespective of the deed of gift, on Raja Ram and Ram Babu, his daughter's sons, and on the death of Ram Babu, his interests would devolve on Raja Ram; and the sale held in execution of the decree and the purchase by the plaintiff of the interests of Raja Ram at a sale in 1917 must be treated as valid and effectual.

It only remains to consider the question of res judicata, which has been raised on behalf of the defendants. As we have already pointed out, the decision in the previous suit must be treated as final, so far as it relates to the southern portion of the upper storey, which was the subject matter of the claim at that time. That suit having been dismissed and the dismissal not having been set aside, that decision would operate as a final adjudication of the rights of the parties so far as that claim went. The defendants were present to prosecute their defence and the result of that decision was to invest them with an indefeasible title to the property which was then the subject matter of the claim of Raja Ram and over which they continued in possession till their rights were sold by auction and purchased by the defendant No. 2. The same however cannot be said about the remaining portion of the property. The cause of action alleged in the previous suit was that the defendants to that suit had taken possession of the southern portion of the upper storey with the permission of the agents of Raja Ram and Ram Babu during their minority and that they were wrongfully refusing to vacate the same. The title by virtue of which Raja Ram claimed to derive his right to sue was the deed of gift said to have been executed by Sheola Mal. The deed of gift not having been proved, the claim of Raja Ram failed. But the present suit, so far as it relates to the remaining property, is however based on a different title and a different cause of action.

So far as the deed of gift is concerned the title is common and must be set aside as no longer enforceable, but so far as the right which Raja Ram and Ram Babu claim to derive by inheritance as daughter's sons of Sheola Mal is concerned, that title had not been tried or determined in the previous suit. It might have been open to Raja Ram to have set up that title as an; alternative ground of attack but that omission could not operate to deprive him of his right to set up that title in regard to property which was not then in dispute. The cause of action in the present suit is also different. By virtue of his purchase at auction Moti Lal claims to have obtained possession of the disputed house and the decision in the previous suit cannot therefore affect the property which was not the subject matter of the claim in the previous case.

It has been strenuously argued on behalf of the defendants respondents that the plaintiff appellant ought not to be allowed to urge in support of his claim an alternative title which had not been expressly set up either in the plaint or in the memorandum of appeal filed in the lower appellate court. In the plaint Raja Ram and Ram Babu were described as the sons of the daughter of Sheola Mal and a reference was also made to the deed of gift executed in their favour by their maternal grandfather. The relationship set up in the plaint was denied by the defendants but it was found by the courts below that Raja Ram and Ram Babu were the sons of the daughter of Sheola Mal. The daughter had died in the lifetime of Sheola Mal. That gift was upheld by the trial court and it was obviously unnecessary to press an alternative title, when the other title had been duly recognized and accepted. It is not possible to say whether before the lower appellate court the title derived by inheritance was urged; but the facts established are so plain that primâ facie it would be doing injustice to deny to the plaintiff a right to which he is entitled, on that basis. In Skinner v. Naunihal Singh their Lordships of the Privy Council permitted an alternative case set up by the appellant on appeal to be the ground of judgment because “it seemed possible in that way to construct the material for a just decision of the true rights of the parties concerned, which would be the best in the interests of all and prevent further litigation.”

We allow S.A No. 543 of 1920 and dismiss S.A No. 544 of 1920 and, setting aside the decree of the lower appellate court, restore that of the court of first instance, except in so far that the parties will bear their own, boats throughout.