Dawson Miller, C.J:— The Appellant who is the Plaintiff in the suit, is the Maharaja of Coota Nagpur. The Respondent Ganesh Narain Sahi who is the principal Defendant is the son of the late Raja Raghubir Sahi of Barwe who died on the 26th January, 1914 shortly before the suit was instituted. The other Defendants were originally the son and grandson of Ganesh Nerain Sahi and a lessee of certain mineral rights in pargana Barwe granted by the late Raja Raghubir Sahi in December 1913. The grandson has died since the suit was instituted. Ganesh Narain alone of the Defendants entered appearance and filed a written statement. The others have taken no active part in the proceedings and it will be convenient to refer to Ganesh Narain as the Respondent.

2. The suit was instituted by the Appellant on the 2nd April, 1914 claiming that he, as Maharaja of Chota Nagpur, was entitled to resume pargana Barwe on the death of the Raja Raghubir Sahi who he alleges was only a tenant for life of that estate. Tho plaint also asked for a decree for possession of the whole pargana. It further claimed mesne profits from the date of the death of the late Raja Raghubir Sahi but this part of the claim has been withdrawn. The Respondent contends that his father held an estate of inheritance and that he as the next heir is entitled to succeed to the estate on the death of his father.

3. The case presented by the Appellant is that pargana Barwe is an under-tenure of the Chota Nagpur Raj, that it was a jagir tenure granted on condition of service subject to a fixed yearly rental, that originally it was held under the Chota Nagpur Raj as a putra putradik tenure, that is, an estate descendible to the heirs male of the body of the original grantee; that in the year 1851 on the death of Haranath Sahi Deo, the then Raja of Barwe, without male issue the line of the original grantee became extinct and that the than Maharaja Jagannath Sahi Deo, the Appellant's father, was entitled to resume. He however eventually recognised Haranath's half brother Lachmi Nath Sahi Deo, about whose legitimacy there was some doubt, and appointed him Raja, but on the latter's death without issue in February 1853 the estate was resumed and some two or three years later namely in November 1855 Lal Sahi Deo, grandfather of the Respondent and a distant collateral relation of Hara-satb, was given a lite interest in pargana Barwe, less six villages, at an enhanced rent by the Maharaja wbo granted a patta to and took a kabuliyat from the grantee, that on Lal Sams death in 1860 his son Raghubir Sahi, father of the Respondent was permitted to remain in possession as a life tenant and on his death in 1914 the Respondent acquired no interest by inheritance or otherwise in the Barwa Estate which the Appellant now claims to be entitled to resume. The Respondent's case is that the entire pargana Barwe is an impartible hereditary estate belonging to his ancestors from time immemorial, that it was originally a part of Surguja, a tributary estate of Chota Nagpur but in the year 1799 the revenue previously payable to Government was made payable to the Maharaja of Chota Nagpur since when it has been customary for each successive Raja of Barwe to receive from the Maharaja of Chota Nagpur his title and khilat on payment of nazrana and to have his name registered in the sherista of the Chota Nagpur Raj, that his grand-father Lal Sahi Deo succeeded as heir to the Barwe estate and not by any fresh grant from the Maharaja of Chota Nagpur. The kabuliyat alleged to have been executed by Lal Sahi Deo in 1855 is challenged as a spurious document and the execution of the patta said to have been granted to him, a copy of which was produced by the Appellant is denied. Alternatively the Respondent claims that even if the documents mentioned are genuine and the giant of a lite estate to Lal Sahi Deo be proved, nevertheless as he and Raghubir have been in uninterrupted possession of the entire estate in assertion of their own right for over 50 years he has acquired an indefeasible title by adverse possession.

4. A further plea in bar was raised by the Appellant based upon a judgment of the Judicial Commissioner of Chota Nagpur, dated the 13th July, 1911 and a judgment of the Assistant Commissioner of Lohardaga, dated the 4th May, 1859 which it is claimed operate as res judicata whereby the Respondent is estopped from denying that Raghubir Sahi was a tenant for life or from asserting that the estate was an impartible hereditary estate of his family and not liable to resumption.

5. The case was originally triad before the Subordinate Judge of Ranchi when the following issues (omitting those not now material) were framed:—

(2) Whether the judgment of the Judicial Commissioner, dated the 13th July, 1911 and of the Subordinate Judge, dated the 1st December 1913 operated as res judicata in this suit? Are the Defendants estop pea from reopening tan matter in this suit?

(3) Whether Raja Raghubir Sahi was a tenant for life of the disputed property? Is the estate appertaining to Barwe Raj liable to resumption by the Maharaja of Chota Nagpur.

(4) Whether Defendants have acquired a title to Barwe Raj estate by adverse possession? Can the Plaintiff recover possession thereof?

(5) Whether Barwe Raj farmed a separate and impartible estate and was heritable by the members of the Raj family? Whether the revenue payable to the Government in respect of the Barwe Raj estate was made payable to the Maharaja of Chota Nagpur in 1799 as alleged by the Defendants?

6. The learned Judge by his judgment, dated the 26th May, 1917 found all issues in favour of the Respondent and dismissed the suit. From that decision the present appeal is brought.

7. Before dealing with the issues it is desirable to say something about the early history of the Chota Nagpur Raj and the Barwe tenure as far as may be gathered from the evidence adduced at the trial. Sir W. Hunter in Vol. XVI, p. 362 of his Statistical Account of Bengal adopts in a slightly condensed form a special report made by Mr. G.K Webster, Manager under the Court of Wards of the Chota Nagpur estate dated the 8th April, 1875 from which it appears that with the exception of a few villages belonging to the Ramgarh estate the only estate in Chota Nagpur paying revenue direct to Government is that of the Maharaja. This part of the country was first reduced by the Mahammadans in 1585 when the Raja, as he was then styled, of Chota Nagpur submitted be the Moghul Emperor and became a tributary (malquzar) of the Imperial Government. Chota Nagpur was ceded to the British in 1765 but the first settlement with the Raja was not made until 1771 when Major Camac granted a lease to Raja Dripnath Sahi for three years at a revenue of Rs. 6,000 and nazrana Rs. 6,000, which figures in later leases were altered to Rs. 10,000 rev and Rs. 5,001 nazrana. At first the Chota Nagpur Raj appears to have been considered as a tributary estate and not governed by the Regulations or subject to sale for arrears of revenue. After the introduction of the abkari or excise dues in 1823 the Regulations began to be put in force and the estate may now be regarded as permanently settled.

8. The report then deals with the tenures held by Rajas dependent on the Chota Nagpur estate and states that Barwe and five other tenures now known as the panch parganas were not original creations of the Maharaja of Chota Nagpur but were gained by conquest and brought under the power of that Raj Barwe is stated to have been originally subject to Surguja and finally brought under the power of Chota Nagpur in 1799 after the advent of British rule although at some earlier period the descendants of the original Raja had for a time at least transferred their allegiance to Chota Nagpur. All these estates including Barwe are stated to be hold under what are called bhandowa pattas and on failure of heirs male of the original holder they escheat to the Chota Nagpur estate. Tori and Rahi have already so fallen in. It is further stated that the present possessors (in 1875) of Bundu and Tamar and Barwe are not legitimate descendants of the men who were in possession at the time of the permanent settlement so that now these tenures may be considered as creations of Chota Nagpur.

9. In the account of Surguja in the Statistical Account of Bangal (Vol. XVII, p. 222) it is stated that “In the year 1792 the attention of the British Government was directed to Surguja in consequence of Raja Ajit Singh having seized Barwe, a hill-locked pargana on the Western Frontier of Chota Nagpore proper. The Barar Raja interfered without effect, and on the death of Ajit Singh, his third brother Lal Sanram Singh, murdered Ajit Singh's widow, usurped the chief tain ship, and not only retained possession of Barve, but aided a rebellion in Palamau against the British Government. This led to an expedition into Surguja under Colonel Jones, by order of the Marquis Weliesley, than Governor-General. Barwe was restored to the Maharaja of Chota Nagpore, and a treaty was concluded between the British and Nagpore Governments which provided for the administration of the affairs of Surguja during the minority of Balbhadra Singh, the ton of Ajit Singh under the management of his uncle Lal Jagannath Singh. The treaty however proved inoperative.”

10. From this it would appear that at some time before 172 Barwe had been subject to Chota Nagpur and this would also appear to be the case from certain letters (Exts. N, N1, N2 and N5) written between the years 1792 and 1796 on behalf of the Raja of Sarguja to thw British Agent and to the Raja at Barwa complaining that payment of the rent of Barwa had been withheld for some years previously at the instance of the Raja of Chota Nagpur and asking that Barwe should be restored as it appertained to Surguja. The truth probably is that the inhabitants of pargana Barwe and the adjoining country were wild and ??? tribe whose chiefs only rendered tribute to their overlord when compelled by the strong hand to do so and transferred their allegiance as the political exigencies of the times ??? and in order to secure protection from their neighbours. What the incidents of the tenure may have been before the year 1799, there is little or nothing to show. The Appellant contends that the only authentic and reliable ??? of the Barwe estate begins from that year when it is agreed the Maharaja of Chota Nagpur was recognised or established by the British authorities as the overlord of Barwa which became a dependent of the Chota Nagpur Raj. There is no grant of that date in existence from which the nature of the tenure can be determined buts this is not surprising as most of the documents in the archives of the Raj were lot or destroyed during the mutiny. The name of the Raja of Barwe in the year 1799 is Deo Sahi. This is admitted by both parties.

11. It must be remembered that the Respondent's case is that it is an impartible hereditary estate, belonging to his family from the time of Tipan Sahi Deo who lived long before 1799 paying not rent to a superior landlord that revenue to Government, at present through the Chota Nagpur Raj, the events of 1799 merely having had the effect of substituting Chota Nagpur for Surguja as the medium through which the Government revenue was paid, and that his grandfather Lal Sahi was entitled after Lachmi Nath to succeed as heir to the estate being descended in the direct line of Tipan Sani Deo. Th following genealogical table extracted from a more detailed documents used in evidence by the Respondent, to which attention will be called hereafter, shows the relationship between the parties according to the Respondent's case:—

12. The figures in brackets represent the order of succession of the Rajas according to the Respondent.

13. The burden of proof is admittedly on the Respondent to establish his contention as to the nature and incidents of the estate, first, because the Barwa estate is undoubtedly within the Appellant's zamindary and secondly, because the record-of-rights finally published in 1909 as amended by the decision of the Judical Commissioner of Chota Nagpur, dated the 13th July, 1911, shows the tenure of Raghubir Sahi the Respondent's father to be a life-grant re-burnable by the Appellant upon Raghubir's decease. By way of discharging this burden the Respondent apart from traversing the allegations in the plaint contents himself in his written statement with the assertion that the tenure is and always was an impartible hereditary estate and therefore not resumable and that Lal Sahi succeeded as heir to an estate of that nature, no fresh grant having been made to him. He does not plead in the alternative that if it was originally a putra putradik jagir as alleged by the Appellant, he was nevertheless entitled to succeed as a direct descendant from the original grantee assuming the original grantee to have been an ancestor of the Respondent. It would appear therefore on the pleadings that if the Respondent should fail in establishing that the tenure was originally an Impartible hereditary estate it is not open to him to set up the alternative case. I bad some doubt during the argument whether the alternative contention is now open. On the view taken by the learned Judge the question did not arise although be expressed the opinion that Lal Sahi could succeed as a descendant of the original grantee even if the estate were a putra putradik tenure. This view was based presumably on the assumption that the grant was originally made to some common ancestor of Hernath Sahi and the Respondent was admittedly not a descendant of Deo Sahi, the holder in 1799.

14. As the question is one of law and does not depend upon further evidence and as the case has Dean argued before us from every point of view I think it is permissible and desirable that we should consider it. The issue also as trained require that the point should be considered. It the first part of the issue do answered in the negative on the ground that Raghubir succeeded to a putra putradik tenure it would follow that the answer to the second part of that issue would be that the estate is not liable to resumption immediately but only on ??? of male hair. It would be a ??? result if the Appellant were entitled to succeed ??? it ??? out that the estate was not a life tenure as recorded in the record-of-rights. I think the proper course would be in such a case to ??? the declaration claimed which in our accretion we are entitled to do. It will be necessary therefore to consider the right of the Respondent to succeed in the event of our tinning that the estate was a putra putradik tenure originally, although be does not assert a putra putradik right. (The judgment then discussed the evidence and ???). In my opinion it is clearly proved that from the year 1799 until 1855 the Barwe estate was a putra putrodik jagir resumable by the ??? an failure of male ??? of the original grantee and the Respondent's contention that it was an absolute estate of ??? has no reliable evidence to support it. We know that in 1799 Deo Sahi was the Raja of Barwa but what the incidents of the tenure were before that date or who were the holders there is no evidence from which any definite conclusion can be arrived ???.

15. In any case the Respondent has in my opinion failed to give any satisfactory proof that he is a legitimate descendant of Tipan Sahi or that Tipan Sahi was ever a Raja of Barwe. The judgment further dealt with the evidence and preceded. It now becomes necessary to consider whether the estate was resumed by the Maharaja Jagannath Sabi Deo on the death of Lachminath in 1853 and a new grant given to the Respondent's grandfather Lal Sahi in November 1855 or whether as the Respondent contends no new grant was given but Lal Sahi succeeded in the ordinary course as the next heir to the estate. I have already said that in my opinion the estate was at that time a putra putradik tenure and if Lal Sahi in tact succeeded as heir it must be on the hypothesis that whatever his legitimate claims may have been he was recognised by the Maharaja as the next lineal heir of the original grantee and if this is so it is too late now for the Appellant to reopen that question. The Appellant's contention however, is that the line of the original grantee terminated with Lachminath and that a new grant was subsequently given to Lil Sahi of a life estate only.

16. In order to determine this question it is necessary to consider the events which happened at that period. In the year 1851 when Raja Harnath Sahi died without male issue his half brother Lachmi Nath Sahi would undoubtedly be the next heir if his parebtaga as the legitimate son of Harnaths father Sobban Sahi could be established. The two widows of Harnath contested his legitimacy and claimed that they as the widows of the last male holder were entitled to a life estate. If Lachminath was not the legitimate heir and the succession terminated then, the Maharaja was Undoubtedly entitled to resume which would defeat the claims of the widows who at most would be entitled only to maintenance. Lachminath petitioned the executive authorities to be recognised as heir but his petition was disallowed on the 20th August, 1852, subsequently, however, the widows of Harnath for reasons which do not appear changed their attitude and acknowledge his legitimacy and in October 1852 (Kartic 1909 S.) the Maharaja Jagannath Sahi Deo agreed to acknowledge Lachminath on condition that the Ranis would show the bona fides of their changed attitude by consenting to dine with him a test which appears to have satisfied the Maharaja. Lachminath was accordingly recognised as Raja of Barwe and invested with the tilak and khillat, the Ranis being awarded maintenance. He, however, did not live long to enjoy his new dignity. He died childless in February 1853 (Falgun 1909 S.) when the question of resumption again became prominent. Lal Sahi appears to have put forward a claim to succeed as next heir to estate but nothing definite was done until the 16th November, 1865 (Kartic 1912 S.) when according to the Appellant a new grant was made to Lal Sahi of a life interest in Pargana Barwe less six villages which were retained by the Maharaja and the rental was increased to Rs. 1,702.8.0 The patta under which the grant was made and which would presumably be in the possession of the Respondent was not produced but what purports to be a copy of it contained in the patta book of the Maharaja of that date was tendered in evidence. A kabuliyat said to have been executed by Lal Sahi was also produced and put in evidence on behalf of the Appellant. The judgment further examined the evidence and continued. The translation of the patta reads in the material portion “the said Raja so long as he shall remain alive will enjoy pargana Barwe in terms of this patta.” The kabuliyat reads “on my death you will have the power to take direct possession of the paid pargana and to settle it.” They both provide for the payment of an annual rent of Company's Rupees 1,702.8.0 including rakamut.

17. They both show a jagir grant on condition of service namely beeping watch at the Maharaja's khirki and they both provide for resumption in default of rendering service or paying the rant. The kabuliyat was produced from the proper custody and purports to be executed by Lal Sahi and attested by five witnesses. The Court may therefore presume that it was properly executed and attested without proof of these matters. The signatures of three of the witnesses were in fact proved by the son of one and the grandsons of two others. The learned Judge however came to the conclusion that neither this nor the other documents mentioned were reliable. The main reasons which induced him to ??? this opinion were that the kabuliyat never saw the light until more than a quarter of a century after its date, namely, in 1882 and that it was not produced in the suit instituted against the Ranis in 1857 nor was it referred to in contemporaneous documents. He further relied upon the fact that the six villages which are expressly excluded by the grant were found in the possession of the Barwe Raj and not in the possession of the Maharaja of Chota Nagpur and that so far as the evidence went it showed that the rant of these villages had always been paid to the holder of Barwe and never to the Maharaja. The judgment then discussed about the genuineness of the Kabuliyat and coming to the conclusion that it was not a forgery proceed. It was further contended that the kabuliyat was not admissible in evidence as it wan not adequately stamped. If this be so the defect could be cured by the payment of the deffect and a penalty of ten times that amount. I do not think, however, that it is shown that the ??? is ???. Article 29 of Reg. X of 1829 was relied on for this purpose but I do not find any provision in that Regulation for the stamp duty applicable to a kabuliyat of a grant for life and in the absence of any Regulation dealing with the case I am unable to hold that any penalty can be exacted.

18. The last point taken by the Respondent was that the Appellant's right to resume is barred by limitation. When Lal Sahi died in 1860 his son Raghubir appears to have taken possession of the estate without any opposition on the part of the Maharaja Jagannath who as we know shewed no attitude in the management of his affairs. No attempt was made by Raghubir at that time or until many years after to obtain recognition by investment as Raja by the superior landlord but he remained in possession paying the rent content with the style and title of ??? and is so described in the documents. In 1869 the Maharaja Jagannath died leaving an infant son the Appellant as his heir and the estate was administered by the Court of Wards until the letter attained majority in 1887. Barwa was from 1881 to 1895 being administered by a manager under the Chota Nagpur ??? Estates Act. So long as the rent was paid and no adverse title was set up by Lal Sahi's successor claiming any permanent interest there would seem to have been no particular reason why his possession should be disturbed. Apart from any over act on the part of Raghubir claiming a larger interest I apprehend that the mere acceptance of rent from him by the Maharaja would not constitute him anything more than a mere tenant at-will. The evidence however shows that Raghubir asserted that he had an interest as jagirdar and the Maharaja acquiesced in this claim and himself described Raghubir in the plaint in the rent suit of 1866 as in possession of pargana Barwe as a jagir on condition of service. Lal Sahi's name was retained in the Appellant's sherista as the elakadar of Barwe until 1893 when Righuhir applied for mutation and on paying nazrana had his name substituted in place of that of his deceased father. The document recording this mutation shews the interest of the holder to be that of a jagirdar. The interest of a jagirdar is ordinarily that of a life tenant. The subsequent conduct of the parties discloses nothing from which it can be inferred that any larger estate was ever claimed by Raghuhir until in the course of the settlement operations in 1903 he claimed a putra putradik interest which was accused by the Appellant. The Settlement Officer decided in Raghubir's favour. Thereupon the Appellant to 1910 instituted a suit under Section 87 of the Chota Nagpur Tenancy Act claiming to have the entry in the record of rights corrected and to have Raghubir's name entered as a tenant-at-will or at most a life tenant. He failed in the trial Court before the Assistant Settlement Officer but on appeal to the Judicial Commissioner of Chota Nagpur in 1911 the judgment of the trial Court was set aside and the record-of-rights was ordered to be corrected and Ragbubir'n tenure to be entered as a life tenure returnable on his deceased. An appeal was preferred by Raghubir to the High Court at Calcutta but dismissed on the ground that no appeal lay. The same Court rejected a petition in revision to set aside the decision of the Judicial Commissioner who, it was contended, acted without jurisdiction. The Court decided that he had full jurisdiction in the matter. The cast stop was in 1912 when Raububir and the Respondent brought Suit No. 26 of 1912 before the Subordinate Judge at Ranohi claiming a declaration that Barwa was an hereditary impartible estate belonging to their family from time immemorial. As already pointed out that was the first occasion upon which such a claim had been asserted. The suit was in effect an attempt to set aside the decision of the Judicial Commissioner and it was dismissed on the ground that it was barred by Section 258 of the Chota Nagpur Tenancy Act. That decision was affirmed on appeal to the High Court. Raghuhir died in January 1914 and the present suit for resumption was instituted in the following April. The learned Vakil for the Respondent admits that a jagir means a life tenancy that contends that in Chota Nagpur the term bus a different signification and connotes a putra putradik interest. He relies upon para. 25 of Mr. Cuthbert's report of the 21st April 1827 (Ex. M-5). In speaking of the larger jagirs Mr. Cuthbert says they invariably descend from father to son. This may be true as a general rule but it is clear from a memorandum of Captain Oakes (Ex M-2) ??? in a letter to the Commissioner of Chota Nagpur in October 1856 for the information of the Legislative Council of Bengal that some of the jagirs were held on life tenures. Moreover it appears from the patta book that where a putra putradik interest was conveyed word? to that effect were always inserted in the grant Exs. G aud G-1 are instances. In other instances life estates were also granted. If the grant of a jagir always gave a putra putradik interest it would seem unnecessary that the pattas should contain words indicating a grant of that nature and yet we find both kinds in the book. In Maharaja Ram Narayan Singh v. Ram Saran Lal(1), which was Chota Nagpur case it was clearly stated by Sir John Edge in delivering the judgment of their Lordships that a jagir mut he taken prima facie to be an estate only for life although it may possibly be granted on such terms as to make it hereditary. This was in accordance with the previous ruling in Gulabdas v. Collector of Surat(2). It is also in accordance with the express provision of cl. 15 of Reg. XXXVII of 1793 which enacts that “Jagirs are to be considered as life tenures only, and with all other life tenures are to expire with the life of the grautee, unless otherwise expressed in the grant.”. In opinion the mere assertion of a jagirdar right acquiesced in by the superior landlord cannot be taken to import a claim to or an acknowledgment of a larger interest than that of a life estate, and in the circumstances I hold that there was no adverse possession on the part of the Respondent's father which would bar the present claim for resumption.

19. If I am right in the conclusions already arrived at it is not necessary to consider the plea in bar raised by the Appellant and this question can be dealt with shortly. The first case relied on as res judicata is the decision of Captain Davies in 1859. There was no dispute between the Plaintiffs in that suit as to the Maharaja's right to resume or the fact that the tenure had come to an end on the death of Lachmi Nath. The principle laid down in Cottingham v. Shrewsbury(3) can therefore have no application. There was no conflict of interest between the co-Plaintiffs and the decision cannot, in my opinion, be held binding as res judicata on their successors [see Ramchandra Narayan v. Narayan Mahadev(4)]. The fact however that Lal Sahi admitted that the estate was resumable by the failure of heirs male in 1855 is strong evidence of the truth of the fact then admitted and it could be shown that the Maharaja had been induced thereby to alter his position I think such conduct would work as an estoppel between the parties and their representatives. If however, it can be clearly shown that the facts then admitted were not true I think it must be assumed that the Maharaja in 1855 was aware of the truth and was not prejudiced by the admission and evidence of the true state of affairs would be admissible. In my opinion, however, the evidence is by no means sufficient to disprove the truth of the admission that the line of the original grantee then became extinct and that the Maharaja was entitled to resume. The second case relied on by the Appellant as res judicata is the decision of Mr. Kingsford, Judicial Commissioner of Chota Nagpur in 1911 in the suit brought under Section 87 of the Chota Nagpur Tenancy Act already mentioned. Sec. 258 of that Act provides that no suit shall be entertained in any Court to vary, modify or set aside either directly or indirectly any order or ??? of any Deputy Commissioner or Revenue Officer in any suit or proceeding under inter alia Sec. 87. The present suit is not brought for the purpose of setting aside Mr. Kingsford's decree and although the section no doubt had the object of securing to pome extent finality for such decrees the section does not say as it might have done that no Court shall try any issue already decided by such a decree so as to bar a Defendant in a suit brought against him from raising the issue. Nor does Section 11 of the CPC in my opinion avail the Appellant. Mr. Kingsford although Judicial Commissioner of Chota Nagpur was acting as a Revenue Officer in hearing the appeal in question and as such would not have been competent to try the present suit within the meaning of that section.

20. If however I am right in my decision on the other issues it follows that the appeal must be allowed and the decision of the Subordinate Judge reversed. I would grant the relief asked for in paras, (a) and (b) of the plaint and order the Respondent to pay the Appellant his costs here and in the Court below.

21. With regard to the six villages expressly excluded in the kabuliyat, dated 22nd Kartic 1912 Sambat, I think that the Plaintiff has failed to establish his title thereto and the relief granted relates only to the villages claimed in the first schedule of the plaint other than those six.

22. Jwala Prasad, J.:— I agree to the order proposed.

23. Appeal allowed.