Chatterji, J.:— This appeal arises out of a suit to recover possession of the lands recorded in survey khata 81. This property admittedly belonged to two brothers Jagdeo and Potan, the deceased husband of Mt. Bhagmani who is defendant 1. This widow of Potan executed a usufructuary mortgage in respect of plot 763 out of the property in suit in favour of one Mahabir, the deceased ancestor of defendant 3. She subsequently executed a deed of sale in favour of defendant 2 for the ostensible purpose of paying off the mortgage debts due to defendant 3's ancestor and for other purposes. Defendants 4 and 5 are the sons of the plaintiff's deceased brother Rajbullabh.

2. The case for the plaintiff is that Jagdeo and Potan formed members of a joint Hindu Mitakshara family and that Jagdeo succeeded to the entire property by survivorship on the death of his brother Potan. Jagdeo died leaving him surviving his widow Basmatia who took a second husband in sagai form after the death of her husband and is also dead, and a daughter Mt. Lachhmania, who has since died, besides the plaintiff and his brother Rajbullabh, who are said to be the nearest agnates, being the grandsons of one Atma, brother of Bhoabal, who was the grandfather of Jagdeo. According to the plaintiff, Potan's widow Mt. Bhagmania (defendant 1) had no right to transfer any part of the property in suit or to retain possession thereof, and that the plaintiff and his nephews are entitled to obtain possession as legal heirs of Jagdeo on the death of his daughter Lachhmania.

3. The suit was contested by defendant 2 who denied the alleged relationship of he plaintiff and his brother Rajbullabh with Jagdeo or that they were the heirs of Jagdeo Barhi. There was a further plea that the decision in suit No. 528 of 1918 brought by the plaintiff and Rajbullabh operates as res judicata against the plaintiff's claim of heirship on the ground that it was found in that suit that they were not the heirs of Jagdeo Barhi. A written statement was filed by defendant 1 in support of the case of defendant 2. The learned Munsif found that the genealogy set up by the plaintiff was correct so that he and his brother would be the heirs of Jagdeo after the death of Lachhmania; but he held that the decision in the previous suit operated as res judicata on this question and consequently he felt himself bound to dismiss the suit. In appeal it was decreed by the Additional District Judge who agreed with the Munsif on the question of fact that the plaintiff was the heir of Jagdeo, but differed from him on the question of res judicata.

4. In appeal it is urged by the learned advocate appearing for defendant 2 who is the appellant before us that the learned District Judge has come to an erroneous finding on the question of fact which can be assailed in second appeal, because he has relied on certain inadmissible evidence and surmises. Reference made by him to the previous judgment, Ex. E on the question “that Jagdeo was the last surviving brother and obtained all the lands of the joint family” is criticised as also his conclusion sought to be deduced from the situation of the houses of the appellant and of Jagdeo and Potan. The learned District Judge comes to a positive finding that Jagdeo was the last surviving brother and obtained all the lands of the joint family. After stating that this position is clear to him, he adds that was also a finding arrived at in Ex. E. So it is manifest that his finding about Jagdeo being the last surviving brother was arrived at apart from Ex. E to which he makes a casual reference that this document had also a finding to that effect. It cannot, therefore, be maintained that he was influenced in his decision by this Ex. E. Then he finds that the evidence was clear that the plaintiff was the next reversionary heir of Jagdeo but goes on to say:

“that the situation of the houses of the appellant and of Jagdeo and Potan also went to lend corroboration and support to the case of his being the next reversioner.”

5. The use of the word “also” indicates that he came to the finding apart from the situation of the house. Then the Court of fact is entitled to make its deductions from the evidence as also from the circumstances arising out of the situation as evidenced by the survey khatian; and it is impossible to say that the finding is based on a mere surmise. It is not permissible, in my opinion, to interfere with the learned Judge's finding of fact in second appeal. As held in the Midnapur Zemindari Co. v. Uma Charan (1) and Tarni Singh v. Satnarain (2), the High Court is not entitled in second appeal to go behind the findings of fact unless such findings result from the misconstruction of a document of title or the misapplication of law or procedure. There is no substance in this contention raised on behalf of the appellant.

6. The real question in the case is whether the decision has been affected by the misapplication of the principle of res judicata. In order to understand the position it is necessary to state the nature and the scope of the previous suit and the circumstances connected therewith. That suit had been brought by the plaintiff Imrit Barhi and his brother Rajbullabh the deceased father of pro forma defendants 5 and 6 for recovery of possession of one of the plots in suit, which had been mortgaged in rehan to one Mahabir Rai, the ancestor of defendant 3, by defendant 1, who is the widow of Potan, brother of Jagdeo. In the plaint of that suit it was alleged that Jagdeo inherited all the properties by right of survivorship as Potan had predeceased him and the plaintiffs of that suit were entitled to the same as heir of Jagdeo who, it was stated, died issueless. It was further alleged that defendant 1 had no right to the inheritance left by Jagdeo and consequently the execution of the rehan deed and the taking over possession of the ancestral property by her were wholly invalid and illegal.

7. On these allegations the plaintiffs claimed the following reliefs:

1. Be it adjudicated that Potan and Jagdeo Mistri being brothers were joint in mess and Potan died issueless in state of jointness and Jagdeo Mistri got into possession of his entire inheritance.

2. That Jagdeo died issueless and so according to Hindu Law plaintiff got right and that the rehan deed dated 19th June 1919 executed by Mt. Bhagmania, defendant 1 is invalid and illegal. Plaintiffs be put into possession after dispossessing the defendants. That the aforesaid rehan deed be set aside and rendered void.

8. The defendants denied the alleged relationship of the plaintiffs of that suit with Jagdeo and further stated that Jagdeo died leaving him surviving a daughter Lachhmania by name, and further that Potan died after Jagdeo and consequently defendant 1 who came to be in possession of the property as widow of Potan had every right to execute the deed of rehan, which, it was averred, had been executed for legal necessity. The Court framed the following issues which are relevant for the present proceeding:

1. Is the suit as framed maintainable?

2. Have the plaintiffs any cause of action?

3. Are the plaintiffs legal heirs of Jagdeo and Potan?

9. Afterwards a petition for amendment was filed on behalf of the plaintiffs in which they admitted that Jagdeo Mistri left a daughter Mt. Lachhmania, minor, and that she be brought on the record as a plaintiff through plaintiff 1 Rajbullabh as her next friend. The only alteration made was that Rajbullah became the plaintiff 1:

“for self and as guardian of Mt. Lachhmania, daughter of Jagdeo Mistri, deceased.”

10. No amendment was asked for as to the reliefs claimed. The Munsif trying the suit held that the suit was maintainable. On the question of title he held:

“that the plaintiffs have failed to discharge the onus of proof, and that plaintiffs 1 and 2 are not next reversioners of Jagdeo or Potan.”

11. As to the issue 2 regarding the cause of action, he found, to use his own words, that:

“plaintiffs 1 and 2 have no cause of action as I have already held that they are not next reversioners and have no right to bring this suit.”

12. So far as the added plaintiff was concerned, the Court came to view that.

“the interests of plaintiffs 1 and 2 are adverse and they have fraudulently made her co-plaintiff”

13. And directed that her name be removed from the category of plaintiffs so that she might be at liberty to bring another suit if so advised. In the result the suit was dismissed with the direction that the name of plaintiff 3 be struck off from the record.

14. The question is whether this judgment operates as res judicata so as to bar the decision of the issue in the present case as to:

“whether the genealogy given by the plaintiff is correct and whether he is the heir of Jagdeo.”

15. If there is no bar of res judicata the plaintiff is entitled to succeed as heir on the finding of fact arrived at in the present suit; but this finding will not avail them if the bar of res judicata stands in their way, because the Court will be precluded from arriving at any such decision.

16. To apply the law of estoppel by judgment it must be seen whether a matter was directly and substantially in issue in the former suit between the same parties or between the parties under whom they or any of them claim, and whether that has been heard and finally decided. An erroneous decision operates as res judicata as regards the matter in controversy and therefore the fact that the decision on the question of genealogy or heirship was incorrect does not affect the question.

17. There can be no controversy that the matter of heirship in issue in the present suit was also in issue in the former suit between the same parties. The present plaintiff and the present defendant 1 as also the ancestor of defendant 3 were parties to the former litigation, while defendant 2 as a subsequent purchaser from defendant 1 is a person claiming through her. The issue constituting res judicata has to be construed with reference to the pleadings, judgment and record, as mentioned by their Lordships of the Privy Council in Jagatjit Singh v. Sarabjit Singh (3). The issue about heirship was specifically raised in the former suit and decided therein. The real point is whether the issue was a material one and arose directly and substantially in the former suit.

18. It is urged on behalf of the respondent that when Lachhmania was brought on the record as a daughter of Jagdeo but was struck off by the Court, it was not necessary to enter into the question as to whether plaintiffs 1 and 2 of the former suit were the legal heirs of Jagdeo and no decision should have been arrived at on this point. It is true that the Court could not have awarded plaintiffs 1 and 2 a decree for recovery of possession when the existence of Lachhmania was admitted; but they could have been granted the lesser relief that the rehan deed was not binding on them on the footing that they were the next reversionary heirs. It has been held in Satya Taran v. Jyoti Prasad (4) that a Court can always grant general or other relief as it may think just, to the same extent as if it had been asked for. In this case, specific prayer had been made for a declaration that the Rehan deed was void. A person who is not the immediate reversioner but who is the immediate male reversioner is entitled to sue for a declaration declaring the invalidity of transfers made by the widow of the last male owner notwithstanding that there may be other female lives between him and the estate: Ramyad v. Rambihara (5). Such a reversioner is entitled to maintain a suit of a declaratory nature, in the lifetime of the next female reversioner, even if the act or transaction which throws a cloud on the reversion be one of a trespasser claiming title to the estate. As held in Balmukand v. Mt. Sohano (6), such a reversioner is entitled to maintain a suit of a declaratory nature under Section 42 of the Specific Relief Act, for the protection and preservation of the reversionary estate.

19. Now the previous suit was originally brought by the plaintiffs as the heirs of Jagdeo by ignoring the existence of his daughter Lachhmania. When Lachhmania was brought on the record the original plaintiffs continued to be the plaintiffs and, therefore, they filled up the position of reversionary heirs only. O. 1, R. 1 of the CPC, shows that several persons may be joined in one suit as plaintiffs if the right to relief is alleged to exist jointly, severally or in the alternative. The plaintiffs had a right to obtain relief as he next male reversioner with regard to the transaction impugned in the suit and in order to grant that relief it was essentially necessary to consider and decide whether the genealogy set up by them was true. Such being the case it is impossible to hold that the issue was not a direct and substantial one and was not finally heard and decided. A judgment operates by estoppel as regards all the findings which are essential to sustain the judgment: Midnapur Zemindari Co. v. Jogendra (7). It was laid down in this case that if in a suit a question is raised by the pleadings and argued, and if both parties to the suit invoke the opinion of the Court thereupon, the judgment of the Court upon it is not ultra vires, merely because an issue was not framed which, strictly construed, embraces the whole of it; regard must be had rather to the sub-stance than to the form of action, which would by no means prevent the operation of the general law relating to res judicata. Now in the present case not only was the question raised by the pleadings but a specific issue was framed and the parties adduced evidence as to the alleged relationship between plaintiffs 1 and 2 and the last male owner and invoked the decision of the Court on the point; and therefore, the present case stands on a much firmer ground. The finding as to the heirship was essential to sustain the judgment of dismissal and must operate as res judicata on the same issue in the present suit.

20. There are authorities to show that a matter directly and substantially in issue cannot be said to have been heard and finally decided unless the finding on the issue was necessary for the determination of the suit. I have already pointed out that the finding on the issue of heirship was necessary for the determination of the previous suit, in order to give plaintiffs 1 and 2 of that suit the appropriate relief to which they were entitled on the case set up, even though the said plaintiff was struck off the record. There is a useful test of considering whether a finding is necessary for the decision of a case, namely whether an appeal would lie against that finding. The present plaintiff and his brother could have appealed against the decision and by challenging the finding on the issue as to heirship asked for a relief that the deed of transfer by defendant 1 was invalid in law on the ground that she had no title to the inheritance and that they were the next reversionary heirs. It is undoubted that this lesser relief was available to them. Therefore, it cannot be maintained that the matter was not directly and substantially in issue and was not heard and finally decided. Bai Nathi v. Narsi Dullabh (8), referred to by the learned advocate for the respondent is distinguishable, because, there the plaintiff's suit was dismissed, but there was a finding against the defendant; and such a finding cannot operate as res judicata in a subsequent suit, because it was in spite of the decision and not in support of it, and further the defendant could not have appealed from a finding on such issue, the decree having been in his favour. The case here is quite different, because the finding was against the plaintiff and sustained the judgment which dismissed the suit.

21. It is next contended on behalf of the respondent that the previous suit was litigated under a different title and cannot, therefore, attract the operation of bar of res judicata. This contention, however, does not appear to be sound. In the previous suit the present plaintiff and his brother did claim that they were the heirs entitled to immediate possession. Thus the previous suit was brought on the very same title as is set up now. But it is pointed out that as soon as Lachhmania was brought on the record they came to fill up the position of the next reversionary heirs and, therefore, that title is different from the title now set up that they are the heirs of the last male owner on Lachhmania's death. The title as reversioners is based on the right of inheritance from the last male owner and the title in the present suit is also based on the same right of inheritance from the last male owner. I am, therefore, unable to see that the parties were litigating under a different title in the two suits. If the contention be well founded then the position is this that although in a previous suit brought by a person claiming to be next reversioner on the ground of an alleged relationship it is held that there is no relationship between him and the deceased and on that finding an alienation made by a female owner is not declared as invalid against the reversioner, it will still be open to the same man when inheritance opens by the death of the last female owner who intervened between him and the last male owner, to contend that the previous finding on the issue of heirship specifically raised and decided is not binding. If he is allowed to agitate the same point over again this will destroy all sense of finality to a decision. It is true, as stated by the respondent, that no suit is maintainable for a mere declaration by a party of his reversionary title; and therefore a suit by a reversioner for the protection of the estate will have settled nothing as to who should succeed when the inheritance opens by the death of the last limited owner. This is because the plaintiff in that declaratory suit might not be the immediate heir or a third party might come forward and say that he was entitled to succeed; or even if he was the next heir he might die, thereby opening out the inheritance to some other line. But in a case when it was held that the plaintiff was the reversionary heir and on such a finding a decree was awarded that an alienation was not binding on the estate, it is not open to the defendant of that suit to contend in a subsequent suit by the same plaintiff for possession on the death of the last female owner that he was quite a stranger to the family. Similarly, if the Court held that the alienation was invalid but refused a decree to the plaintiff on the ground that he was no reversioner and quite a stranger to the family, it is not permissible for the same party to contend that he is the immediate heir when the last limited owner dies. I can conceive that the position may be different if the previous suit had been dismissed on the ground that the plaintiff was not the next male reversioner and as such not entitled to succeed, and in such a case it will be open to him to show that the succession opens out to him by the death of the intervening person or otherwise.

22. But where, as in the present case, it had been held that defendant 1 had no right to the succession and the transfer by her had been invalid and without legal necessity but the suit was all the same dismissed on the ground that the plaintiffs had failed to prove their alleged relationship and had no cause of action for failure to substantiate their reversionary title, it is not, open to them or their successors to say that they are entitled to show that the finding was incorrect although they did not exercise their undoubted right of appeal against that decision and allowed the judgment to be final. It is, therefore, that the question of res judicata requires to be decided with reference to the pleadings, judgment and record, as held by the Judicial Committee in Jagatjit Singh's case referred to above. Having regard to the nature and the scope of the previous suit and the decision arrived at I regret to have to observe that there can be no escape from the conclusion that the judgment in that suit does operate as res judicata so as to bar the decision of the question of heirship in the present suit. Consequently the plaintiff's suit must fail.

23. The appeal is accordingly decreed and the suit dismissed, but without any costs in the circumstances of the case.

Fazl Ali, J.:— I agree.

V.B/R.K

24. Appeal allowed.