Ray, J.:— The appeals have been heard together and they will be governed by this judgment. The second Appeal No. 717 has been preferred by Munshi Ram Chander Prasad, defendant 1, impleading defendants 2, 3 and 4 as respondents. This relates to Title Suit No. 160/30 of 1939/1941 in the Court of the Additional Munsif, Gopalganj. The second Appeal No. 718 has been preferred by Mangla Prasad, uncle and heir of Bacha Babu, defendant 1 and Jai Narain Pandey, defendant 2, impleading defendants 3 and 4 as respondents and relates to Title Suit No. 186/31 of 1939/1941 of the Court of the Additional Munsif, Gopalganj. The two suits, 160/30 and 186/31, hereinafter referred to as suits 160 and 186 respectively, were filed under the provisions of O. 21, R. 103 of the CPC. Title Suit No. 160 arose out of Miscellaneous Cases Nos. 174 and 175 and Title Suit 186 arose out of Miscellaneous case No. 173. Lala Sital Prasad is the common plaintiff in both the suits in which he sought to set aside the orders passed in the abovenamed miscellaneous cases and to have his title declared in respect of the disputed propertied and his possession either confirmed or restored.

2. The history behind these litigations is shortly as follows: The plaintiff, Sital Prasad, fled Bent Suit No. 57 of 1933 against one Akloo Bhar and Rent Suit No. 38 of 1933 against Harangi and Barho. Akloo held two tenancies, one sikmi and the other occupancy. The sikrni tenancy consists of sikmi Khata No. 2 in village Ratanpura, and the occupancy in Khata No. 95 in village Belwar. These two tenancies held under one consolidated rental at an annual Jama of Rs. 9-4-6 were recorded within the mokarrari of Mathura Prasad and Jasoda Nandan Prasad. Rent suit No. 38 was in respect of a holding comprised in Khata No. 63 in village Barachap. This holding similarly appertained to the estate of Mathura Prasad and Jasoda Nandan Prasad. It is alleged that there was a partition between Mathura Prasad and his nephew Jasoda Nandan Prasad by virtue of which the tenure relating to the tenancies in suit fell to the share of Mathura Prasad. Mathura Prasad, it is alleged, gifted away all his properties to the plaintiff, Sital Prasad, and on the strength of this title, he claimed to recover the rent in respect of the disputed holdings. Both these suits along with a number of other suits were tried together and Sital Prasad obtained decrees. In execution of the decrees, Sital brought the disputed three holdings to sale and himself became the auction-purchaser. He took out dakhaldehani on 30-4-1938, whereupon Ram Chander Prasad, son of Jasoda Nandan Prasad and nephew of Mathura Prasad, filed an objection in respect of the holdings Nos. 95 and 63 on the allegation that they had been abandoned by their holders in favour of Mathura Prasad, and that on the death of Mathura Prasad, Jasoda Nandan and after him Ram Chander was in possession Chandershekhar and Jai Narain filed objections under O. 21. R. 100 of the CPC claiming possession over sikmi Khata No. 2 as purchasers at a sale held in execution of a certificate issued against Ram Chander Prasad, son of Jasoda Nandan. The miscellaneous cases were decided in favour of the claimants. Hence, Sital Prasad, the deeree-holder, filed the suits, as already stated. Second Appeal No. 717 is in respect to the two occupancy khatas preferred by Ram Chander Prasad and S.A No. 718 is by Jai Narain Pandey and Mangla Prasad. The plaintiff-respondent bases his title on the deed of gift from Mathura Prasad, while Rain Chander claims it on the basis that his father and after him he himself was in possession of the properties as heir or survivor of Mathura Prasad.

3. Both the Courts below have found the deed of gift of Mathura Prasad in favour of the plaintiff to be a genuine, valid and operative document, and on this finding they have decreed, the suit. Hence, these second appeals.

4. The learned counsel for the appellants has raised two contentions, namely, (1) that the findings of the learned Courts below are inadequate to support the conclusion in favour of the gift inasmuch as they have not come to any finding as to whether Mathura Prasad had intended to and did in fact divest himself of title to the properties in suit, and (2) that the issue is barred by res judicata.

5. The issue of res judicata is based upon the decision, in Rent Suits filed by Sital Prasad against certain tenants in respect of tenancies including the one which was the subject-matter of Rent Suit No. 38 and Ram Chander Prasad intervened in all the suits and was added as defendant 2nd party, and as such raised the contention that the deed of gift on which Sital Prasad based his title to recover rents in respect of the disputed tenancies was an inoperative document and had been executed under undue influence. An issue was raised between the parties on the point, and it was held that the deed of gift had been executed under undue influence and remained inoperative not having been ever given effect to. With regard to the first contention, it is urged in reply that it is no longer open to the appellant in second appeal having been concluded by concurrent findings of fact of both the Courts below, and with regard to the contention regarding res judicata, it is urged that the decision in the rent suit was only incidental and should not operate as res judicata.

6. The learned trial Court has dealt with the contention of res judicata in the following manner. He observes:

“I should point out that all the Judges who had occasions to deal with this question of the validity of the deed of gift have unequivocally expressed them selves in clearest possible language that their decision on the point will not be final and conclusive between the parties as they were examining the point only incidentally. They have gone to the length of observing that the parties will be free to agitate the matter of title again. I should like to reproduce the observations of Babu Shiva Kumar Prasad, Additional Munsif, who tried the batch of 13 rent suits and upon whose judgment the learned pleader for the defendants relied for the application of the principle of res judicata to the facts of this case. The observations are quoted here from his judgment at page 3 against Point No. 1. ‘It must be conceded at the very outset that it is outside the scope of these suits to decide about the genuineness or otherwise of this deed of gift and the question will only be gone into incidentally simply to ascertain whether the plaintiff has been in possession of the properties covered by it….’ It is abundantly clear from these remarks of the learned trial Court made at the beginning of his findings that the matter was investigated only incidentally and hence, in my opinion, the rule of res judicata cannot bar the present title suit.”

7. The learned lower appellate Court in dismissing the contention of res judicata adopted the same line of argument as the learned Munsif. He observed:

“From the judgments in the two batches of rent suits it appears that the Courts examined the question of title on the basis of the deed of gift incidentally, and came to adverse findings in respect of the deed of gift. Reading the judgments on the point, it does not appear that any specific issue with respect to the deed of gift was ever raised or decided directly and substantially.”

8. He then referred to certain decisions of this Court and of the Calcutta High Court in which it had been held that a question of title decided in rent suits in which the question of relationship of landlord and tenant is the very foundation of the decree, operates as res judicata, and then says:

“The point to be clearly borne in mind, however, is that in none of the proceedings referred to above, the Court meant to decide the question of title on the basis of the deed of gift directly and substantially as against respondent 1. I am, thus, of opinion that the title of respondent 1 could not be held to stand defeated on the ground of res judicata.”

9. I have examined all the authorities cited by the learned Court of appeal below and those cited at the Bar, and I propose to deal with them one after another in the following paragraphs.

10. In 3 Cal. 1451 which was decided by a Bench consisting of five Judges including Sir Richard Garth, C.J the facts were that in a previous suit instituted by one of the present defendants against the tenant for rent, one of the present plaintiffs (representing the right now claimed by all of them) intervened as a defendant, on the ground that he was the person entitled to the rent, and failed to establish his claim. It was held, following the Full Bench case in 15 Beng. L.R 2382 that the plaintiffs in the later suit were barred by the judgment in the former suit, and once it is made clear that the self-same right and title is substantially in issue in two suits, the precise form in which either suit was brought or the fact that the plaintiff in the one case was the defendant in the other became immaterial. In this case the decision of an issue in a suit for rent was considered to bar the determination of the same issue in a regular title suit by the principle of res judicata.

11. In A.I.R 1936 Pat. 5563 it was held by James and Rowland, JJ. that the relationship of landlord and tenant is the very foundation of a decree in a suit for rent and therefore when such a suit has been decreed the Courts must proceed on the footing that it was a matter necessary to be determined and in fact determined in the earlier rent suit. It cannot be relegated to the category of matters only indirectly, collaterally and incidentally decided. This principle is true even if the decree passed is an ex parte one. This decision, in its implication, is confined to rent suits though rent suits as such have no reference to the facts.

12. In A.I.R 1935 Pat. 526 the facts were that in a suit for rent, the plaintiff claimed to be entitled to a two annas and eight pies share. The Court basing the decision on an entry in a register, however, held that he was entitled to only two annas share. In a subsequent suit for rent against the same defendants, the plaintiff again claimed rent as owner of two annas eight pies share. It was contended that the decision in previous suit did not operate as res judicata to the issue in the later suit, as the question of share of the plaintiff was not finally decided in previous suit, the decision being based entirely on the entry in the register. It was held by James, J. that the decision was necessary for the purposes of that suit, and that the question was directly and substantially in issue between the parties. Hence the previous decision operated as res judicata.

13. To the same effect is the decision of James, J. in the case in A.I.R 1934 Pat. 2825 where it is said:

“Where in a rent suit the parties went to trial on the issue of the ownership of the house, and where the issue was decided and where probably the case was tried as a regular suit in order that the question of title might be decided, the question is barred by res judicata.”

14. In A.I.R 1933 Cal. 8246 it was held that in a rent suit where there is a dispute as to question of title as between the co-sharer-land-lords, the tenants denying the plaintiffs' title, and pleading that the other co-sharer was the full owner, and the other co-sharer supporting their defence, it was held that the Court was justified in deciding the question of title and the decree was not vitiated.

15. In support of an opposite contention, reliance has been placed upon the case in 43 C.L.J 146.7 This decision is to the effect that where the relationship of landlord and tenant as between the parties in a rent suit has been decided with reference to the period in suit, it should not operate as res judicata in a suit for rent for a different period, but if the issue has been decided generally, and for all times or once for all, it would be res judicata in respect of any suit for a subsequent period. In the present case, there is nothing that can support the contention that the question of relationship was determined with regard to the period in suit. In this case too the question of conflicting title as between Sital, and the son of Jasoda Nandan was raised both by the intervening defendant as well as by the tenant, and this conflict of title, as between them, was directly and substantially in issue in order to decide the rent suit, and the Court that heard the rent suit and finally decided it is competent to try this subsequent suit. I see, therefore, no reason why the decision should not operate as res judicata between the parties. The learned Courts below have made to rest their decision upon the word “incidentally” used by the Rent Court in holding that the Court left the matter open to be tried out in a regular suit. I do not think it is really so. The Rent Court in using the word “incidentally” tried to distinguish between genuineness of the gift deed and its operative character. He assumed, for the sake of that suit, that the gift was genuine but held that even though it was genuine, it was not given effect to by the parties. So far, the fact of genuineness, that is, the fact of execution by Mathura Prasad is not in dispute. What is in dispute is that it was never given effect to, or, in other words, there was never any divesting of the gift properties in favour of the donee. In my View, if this finding is held to operate as a bar of res judicata, it will be quite sufficient to dismiss the plaintiff's suit.

16. Besides, the learned Courts below have misdirected themselves in disposing of the point raised, namely, that the deed of gift was executed under undue influence. It has been found as a fact by both the Courts below that Sital was in illicit connection with the donor's only daughter and only issue then living, and, in view of this connection, he had given up residing in his own house and was putting up with Mathura and his daughter. The daughter under the circumstances and, for the matter of that, her paramour Sital must be held to have been in a position to dominate his will. Furthermore, the giving away of the entire property in favour of Sital ignoring his daughter and the daughter's daughter makes the transaction unconscionable. These two circumstances conjointly make out a presumption that this document must be held prima facie to have been brought about under undue influence. The plaintiff has done nothing, according to the findings of the Courts below, to dispel this presumption.

17. With regard to the acceptance of the gift by Sital, evidenced as it is by his possession of the deed of gift can also be said not to have been satisfactorily disposed of by the learned. Courts below. The acceptance is to be inferred, not from his present possession of the deed, but from the fact of the deed having been handed over to him by the donor and his having accepted the same in token of the acceptance of the gift at the relevant time and this is the fact which is relevant for the purpose. Keeping in view the circumstances that Sital was living as an inmate of the family being in league with Mathura's daughter, it was quite possible for him to take hold of the document without the donor's knowledge and intention. In the absence of the donor, it is difficult for the appellant to prove how possession of the deed was secured by Sital. In any view, I have no hesitation in holding that the present suits are barred by res judicata. These appeals, therefore, succeed and must be allowed with costs.

Manohar Lall, Ag.C.J:— I agree.

G.N

18. Appeals allowed.