JUDGMENT Mulla, J. - These three connected appeals arise out of three consolidated suits which have been decided by an Additional Subordinate Judge at Moradabad by one and the same judgment, dated 10th March 1930. Of these suits, the principal one and also the first in point of time is Suit No. 164 of 1928 which has given rise to Appeal No. 501 of 1930. This suit was instituted on 11th December 1928 by one Har Sarup who was the appellant in Appeal No. 501 of 1930 but who is now dead and is represented by his three sons, Bhagwati Sarup, Narain Sarup and Harnam Sarup. The sole defendant in this suit was one Anand Sarup, a brother of Har Sarup, who also died during the pendency of this litigation and is now represented by his two sons, Govind Sarup and Madhu Sudun Saran, and Seven others who are his grandsons. This is a suit for possession of six items of zamindari property as given below: (1) A 10 biswa zamindari share in village Sikri, Mahal Munshi Het Narain, Pargana Bilari, District Moradabad. (2) A four biswa zamindari share in village Kanakpur (I) Mahal Shyam Sundar, Patti Munshi Het Narain. (3) A four biswa zamindari share in village Kanakpur (II) Mahal Shyam, Sundar, Patti Munshi Het Narain. (4) A half share in resumed milak land in village Nawabpura, recorded in the khewat as holding No. 13 and comprising an area of 87 acres. (5) Zamindari shares in village Nagla Kamal, entered in the khewat as holding No. 3, resumed muafi land consisting of three items: (a) 42 sihams out of 84 sihams-proprietary right; (b) 54 sihams out of 108 sihams-mortgagee right; (c) 168 sihams out of 360 sihams-mortgagee right free from mortgage. (6) Zamindari share in village Nagla Kamal, entered in the khewat as holding No. 5, 180 sihams out of 360 sihams. 2. At the date of the suit the whole of this property was recorded in the revenue papers in the name of the defendant Anand Sarup. The plaintiff's claim with reference to these properties is that they formed part of the estate of one Sipahi Singh who adopted the plaintiff's father Het Narain as his own son, so that upon his death all his property devolved on Het Narain and on the latter's death was inherited by the plaintiff. The plaintiff's claim with reference to these properties is that they formed part of the estate of one Sipahi Singh who adopted the plaintiff's father Het Narain as his own son, so that upon his death all his property devolved on Het Narain and on the latter's death was inherited by the plaintiff. The next suit No. 2 of 1929, which has given rise to Appeal No. 500 of 1930, was also filed by Har Sarup on 2nd January 1929. In this suit the principal defendant was Anand Sarup but his two sons Govind Sarup and Madho Sudan Saran were also impleaded as co-defendants with him. The subject-matter of this suit is a large house situated in the city of Moradabad which originally belonged to one Raja Bansidhar and is referred to in the evidence as the Phatakwala house. It consists of several blocks of buildings with open land in between and a large gate with some constructions thereon. The plaintiff's case is that the two principal portions of this house known as Hammamwala and Mahalsarai were acquired by Sipahi Singh and the rest by Het Narain. The plaintiff claims possession over three portions of this house, namely, Hammamwala, Diwankhana and Nashishtgah with a Garikhana attached to it. At the date of the suit these three portions were in the exclusive occupation of Anand Sarup, As regards the rest of the house which is divided into four portions, the plaintiff claims a declaration that they are exclusively owned by him and the defendants have no right or interest therein. The third Suit No. 14 of 1929 was filed by Anand Sarup on 6th November 1928 but appears to have been registered on 19th January 1929. The subject-matter of this suit is a half share in two items of zamindari property as given below: (a) Zamindari property held as muafi land comprising 360 sihams bearing an area as given in khewat at holding No. 3 together with all the rights and interests situate in Nagla Kamal, Pargana Bilari, District Moradabad. (b) One grove comprising 87 acre known as Sharifawala, situate in Mauza Nawabpura, holding No. 13, Pargana Moradabad. 3. This property was at the date of the suit recorded in the revenue papers in the name of Har Sarup. The defendants in this suit are Har Sarup and a creditor of his named Lala Indarman. (b) One grove comprising 87 acre known as Sharifawala, situate in Mauza Nawabpura, holding No. 13, Pargana Moradabad. 3. This property was at the date of the suit recorded in the revenue papers in the name of Har Sarup. The defendants in this suit are Har Sarup and a creditor of his named Lala Indarman. It appears that Lala Indarman having obtained a decree against Har Sarup put it into execution and attached the property in question as the property of his judgment-debtor Har Sarup. Anand Sarup thereupon filed an objection under O. 21, R. 58, Civil P.C. This objection was dismissed and Anand Sarup was thus driven to institute Suit No. 14 of 1929. Anand Sarup claimed a title to this property on the ground that he had been in adverse possession there of for more than 12 years as against Har Sarup who had consequently lost all his right? therein. The factum of the adoption of the plaintiff's lather Het Narain by Sipahi Singh was challenged in a previous litigation between the parties to which we shall refer in detail later on. The question was however finally determined by this Court in First Appeal No. 21 of 1925 which was decided on 20th July 1927 and it was held that Sipahi Singh had adopted Het Narain as his son. For the purposes of these appeals the adoption of Het Narain by Sipahi Singh must be taken as an established fact. It is also an admitted fact that Anand Sarup in spite of being the brother of Har Sarup lost all his rights to a share in the estate of Sipahi Singh in consequence of his being adopted into another family. In view of these facts, the main question which will arise for consideration is whether the properties which form the subject-matter of these suits formed part of the estate of Sipahi Singh and if so whether Har Sarup lost his right to these properties or to any part of them by the operation of law. In view of these facts, the main question which will arise for consideration is whether the properties which form the subject-matter of these suits formed part of the estate of Sipahi Singh and if so whether Har Sarup lost his right to these properties or to any part of them by the operation of law. All the three suits have been wholly dismissed by the learned Additional Subordinate Judge with the exception of Suit No. 164 of 1928 in which the plaintiff's claim to a portion of item 6 of the properties in dispute has been decreed, hence these three appeals, There ate also two cross-objections, one connected with First Appeal No. 373 of 1930 which has been made by Indarman one of the defendants in Suit No. 14 of 1929 and the other connected with First Appeal No. 501 of 1930 made by Anand Sarup in respect of the small portion of the plaintiff's claim which has been decreed in Suit No. 164 of 1928. The former objection has not been pressed before us and the latter will be considered along with the connected appeal. The following pedigree gives the relationship of the parties to the suits out of which these appeals have arisen. 4. Before proceeding to consider the various questions which arise for determination in these appeals in view of the pleadings of the parties it is necessary to set out a brief history of the family to which the parties belonged and certain facts regarding which there is no contest and which form the background of the whole litigation. Sipahi Singh who was employed as a Peshkar acquired considerable property but he had only one daughter named Mt. Lachhmi Kuar who was born in 1833. It appears that shortly before his death somewhere in 1846 or 1847 he adopted Het Narain as his son, Het Narain was born in 1840, and was thus only about seven years of age when he was adopted. Lachhmi Kuar was married to a poor man named Lalta Prasad apparently because he consented to live with his wife in the house of Sipahi Singh who did not want to part with his daughter. Het Narain and Lachhmi Kuar thus lived together as brother and sister under the protection of Radha Kuar, the widow of Sipahi Singh, untill her death in 1864. Het Narain and Lachhmi Kuar thus lived together as brother and sister under the protection of Radha Kuar, the widow of Sipahi Singh, untill her death in 1864. All the properties left by Sipahi Singh were entered in the name of Radha Kuar. The management of the properties during this period was in the hands of Madho Bam, the natural father of Het Narain and the brother of Sipahi Singh. Nothing of any consequence happened uptill the death of Radha Kuar in 1864. The only transaction during the period between 1847 and 1864 of which there is some evidence on the record was a sale deed executed by one Mt. Rukmin in favour of Het Narain on 27th June 1861. A copy of this sale deed is Ex. 7 in Appeal No. 500 of 1930. It is admitted that this sale deed relates to a portion of the house which is the subject-matter of dispute in suit No. 2 of 1929 and is referred to as the diwankhana. 5. Anand Sarup was born in 1859 and he was only five years of age at the death of Radha Kuar in 1S64. It appears that in the same year, either before or after the death of Radha Kuar, Anand Sarup was given away in adoption by his father Het Narain to Lachhmi Kuar and Lalta Prasad. It is significant that he was the only son of Het Narain at that time, Lalta Prasad appears to have entered Government service as a petty clerk but he ultimately rose to be the Sharishtadar of the Collector's Court at Bijnore. It was admitted in a previous litigation between the parties that he was confirmed as Naib Sharishtadar on 22nd September 1862 and subsequently rose to be Sharishtadar at least in 1874. He retired from service in 1880. He had been living away from the family in connexion with his service between 1862 and 1880 but when he came back on his retirement he assumed the management of Het Narain's household, Het Narain also appears to have entered service somewhere about 1863 or 1864 and he came back in 1893. During this period he was for the most part away from his home in connexion with his service in Pilibhit. In the meantime Har Sarup was born in the year 1873. During this period he was for the most part away from his home in connexion with his service in Pilibhit. In the meantime Har Sarup was born in the year 1873. Het Narain's wife died in 1877 when Har Sarup was only four years of age. It is an admitted fact that upon the death of Het Narain's wife Lachhmi Kuar came and settled in his house and took charge of his infant son Har Sarup. From that time uptill Het Narain came back in 1893 Lachhmi Kuar was admittedly in full control and management of Het Narain's household along with her husband Lalta Prasad who came back on his retirement in 1880, Peace and affection reigned in the household and Het Narain was naturally very grateful to Lachhmi Kuar. Even before the death of his wife in 1877, Het Narain and Lachhmi Kuar lived on very affectionate terms with each other and the evidence on the record shows that in the period between the death of Radha Kuar in 1864 and the death of Het Narain's wife in 1877 Het Narain entered into some transactions jointly with Mt. Lachhmi Kuar. Exhibit R in Appeal No. 500 is a sale deed executed by one Muhammad Tafazul Ali Khan on 2nd November 1865 in favour of Het Narain and Lachhmi Kuar in respect of a zamindari share in village Manpur-Muzaffarpur. Exhibit PP in Appeal No. 501 is a judgment, dated 22nd January 1866 in a suit brought jointly by Het Narain and Lachhmi Kuar in respect of a village called Umarpur Tanda which had previously been purchased by Het Narain alone. These cordial relations appear to have continued without any disturbance of any kind uptill the death of Het Narain in 1905. There are several transactions evidenced by documents to show that in the period between 1878 when Lachhmi Kuar assumed the management of Het Narain's household and 1905 when Het Narain died Het Narain and Lachhmi Kuar jointly dealt with the family property as if they were co-owners. Exhibit C in Appeal No. 500 is ft rent note dated 19th September 1884 executed by a tenant in favour of Het Narain and Lachhmi Kuar in respect of Mahalsavai which is admittedly a portion of the house in dispute in Suit No. 2 of 1929, though Har Sarup has not claimed any relief in respect thereof. Exhibit C in Appeal No. 500 is ft rent note dated 19th September 1884 executed by a tenant in favour of Het Narain and Lachhmi Kuar in respect of Mahalsavai which is admittedly a portion of the house in dispute in Suit No. 2 of 1929, though Har Sarup has not claimed any relief in respect thereof. Exhibit 2 in First Appeal No. 500 is a judgment dated 30th August 1886 decreeing a claim made jointly by Het Narain and Lachhmi Kuar for pre-empting a zamindari share in village Manpur-Muzaffarpur. 6. Exhibit S in First Appeal No. 500 is a sale deed, dated 29th July 1888, showing that another zamindari share in village Manpur Muzaffarpur was jointly acquired by Het Narain and Lachhmi Kuar. Exhibit 12 in Appeal No. 373 is a rent note executed by a tenant on 19th August 1890 in favour of Het Narain and Lachhmi Kuar in respect of a house known as Shivalewala. Exhibits HH-1 and B in Appeal No. 500 are two documents which taken together show that Het Narain and Lachhmi Kuar jointly brought a suit in 1891 in respect of a wall of the house known as Mahalsarai to which reference has already been made above. The defendant in that suit raised the issue that Lachhmi Kuar had no title to sue and it was decided by the Court that from the evidence produced before it Lachhmi Kuar and Het Narain had both been proved to be heirs of Sipahi Singh. Exhibit 9 in Appeal No. 373 is a rent agreement executed by one Chheda on 1st July 1892 in favour of Het Narain and Lachhmi Kuar in respect of a house known as Sarai Kaharan with which we are not concerned in the present case (sic) it has already been sold away by Har Sarup but which undoubtedly formed part of the family property. Exhibit W in First Appeal No. 500 is a decree dated 30th June 1893 in a suit brought jointly by Het Narain and Lachhmi Kuar in respect of the house known as Mahal Sarai to which reference has already been made above. Exhibit W in First Appeal No. 500 is a decree dated 30th June 1893 in a suit brought jointly by Het Narain and Lachhmi Kuar in respect of the house known as Mahal Sarai to which reference has already been made above. A very important fact to be noted in this connexion is that in this suit Het Narain was examined on 1st March 1893 and he then made the following statement: After the death of Munshi Sipahi Singh my mother came into possession of his entire property as well as the house in question and my mother by an oral will gave the same to me and my sister. 7. This statement is the foundation stone of the defence case which we shall set out in its proper place. It must however be mentioned here that Lachhmi Kuar was also examined in that suit and she made the following statement: I have a brother Het Narain. I have not got any separate share. The names of both of us are entered and stand recorded just as our parents got them entered. I cannot say the extent of my share. I know that according to Hindu law a daughter has no share in the presence of a son. My father owned the house in dispute. When he died my mother, brother and myself became the owners. 8. Exhibit 6 in First Appeal No. 373 is a rent agreement executed by one Mt. Bhagwati on 1st September 1896 in respect of a house with which we are not concerned in the present case. Exhibit 6 in First Appeal No. 500 is a hypothecation bond executed jointly by Het Narain and Anand Sarup the adopted son of Lachmi Kuar in favour of Baldeo Das and Hardeo Das on 20th July 1900. By this deed the executants took a loan of Rs. 4700 for discharging a debt payable by Het Narain alone to one Mt. Janki under a hypotheoation bond, dated 13th June 1890 which is Ex. O in Appeal No. 500. In the bond of 20th July 1900 Het Narain stated that he was the owner of certain properties and mortgaged them as a security for the loan which he had taken. The properties mentioned in the bond are: (1) A 20 biswa share in village Sikri together with groves in Mahal Kalan Munshi Het Narain. O in Appeal No. 500. In the bond of 20th July 1900 Het Narain stated that he was the owner of certain properties and mortgaged them as a security for the loan which he had taken. The properties mentioned in the bond are: (1) A 20 biswa share in village Sikri together with groves in Mahal Kalan Munshi Het Narain. (2) A 10 biswa share in village Tanda Umarpur out of 20 biswas and half of the revenue free muafi property situate in the aforesaid village, pargana Bilari, district Moradabad. (3) The Sharifonwala grove No. 190 portion (c) comprising 5 bighas 19 biswas situate in Nawabpura, pargana Moradabad, (4) 2 1/2 biswas zamindari property out of 5 biswas patti separate situate in mouza Kanakpur. 9. In the present case, we are directly concerned with the properties Nos. 1, 3 and 4. Reference will also have to be made to item 2. It is difficult to understand why Anand Sarup was asked by Het Narain to join him as a co-executant in this deed, though he made a specific statement to the effect that he was the exclusive owner of the property covered by the deed. The explanation might well be that the name of Het Narain alone was entered in the revenue papers and the mortgagee, therefore, insisted that Het Narain should declare his exclusive title to the whole property covered by the mortgage. We find, however, that there is a specific provision in the deed as to the personal liability of both executants and it is obviously difficult to understand why Anand Sarup should have undertaken that liability if he or his mother, Lachhmi Kuar had no interest in the property. Again, it is to be noted that the loan under this deed was taken to pay off a previous debt incurred by Het Narain alone for purchasing Pain Bagh, a portion of the house in dispute in Suit No. 2 of 1929. As stated above, the previous debt was payable to Mt. Janki under a bond, dated 13th June 1890. This previous debt was actually discharged as shown by Ex. UU, in Appeal No. 500 which is a receipt, dated 24th July 1900 given by Mt. Janki to Het Narain and Anand Sarup. There is a clear recital in this receipt that she received her money from both of them. 10. Janki under a bond, dated 13th June 1890. This previous debt was actually discharged as shown by Ex. UU, in Appeal No. 500 which is a receipt, dated 24th July 1900 given by Mt. Janki to Het Narain and Anand Sarup. There is a clear recital in this receipt that she received her money from both of them. 10. It is necessary here to break the chronological order, in order to refer to a transaction which took place on 17th March 1915 which is related to the hypothecation bond, dated 20th July 1900 (Ex. 6 of First Appeal No. 500) which has been referred to above. Exhibit P in First Appeal No. 500 is a sale-deed of Manpur Muzaffarpur, jointly executed by Anand Sarup and Har Sarup on 17th March 1915. As stated above, Manpur Muzaffarpur had been Required jointly by Het Narain and Lachhmi Kuar in three separate transactions but the whole of it was sold under the deed of 17th March 1915 in order to discharge the hypothecation bond dated 20th July 1900, which had been executed jointly by Het Narain and Anand Sarup in order to pay off a previous debt with which Anand Sarup had no concern. These are the various transactions which took place between 1878 and 1900 and which end to show that Het Narain and Lachhmi Kuar jointly entered into various transactions as if they were co-owners of the family property. Het Narain died in the year 1905 and a question then naturally arose as to the mutation of the family property. In the course of mutation proceedings in respect of various items of property Har Sarup, who was prima facie solely and wholly entitled to the whole property as the only heir of Het Narain, made two statements on two different occasions which are of considerable importance. One of these statements dated 15th January 1906 which relates to village Sikri, which is one of the items in dispute in Appeal No. 501, is to be found in Ex. B of First Appeal No. 501 and it runs as follows: Mouza Sikri, mahal Surkh of Het Narain comprises a 1 biswa, 15 biswansi, 11 kachwansi and 4 tanwansi share and mahal Het Narain comprises a 20 biswa share. Only the name of Munshi Het Narain is recorded but this property consists of the said two mahals. Mt. B of First Appeal No. 501 and it runs as follows: Mouza Sikri, mahal Surkh of Het Narain comprises a 1 biswa, 15 biswansi, 11 kachwansi and 4 tanwansi share and mahal Het Narain comprises a 20 biswa share. Only the name of Munshi Het Narain is recorded but this property consists of the said two mahals. Mt. Lachhmi Kunwar is the owner of one half, and Munshi Het Narain is the owner of the other half. Now Het Narain is dead. I alone am the heir in possession thereof and there is no other heir. I pray that the name of Het Narain deceased may be expunged and my name may be entered, and the name of Mt. Lachhmi Kunwar may be entered against the one half of the property which Belongs to her. I have no objection. 11. The other statement, dated 22nd. January 1906, relates to mouza Nawabpura, which is item 4 in dispute in Suit No. 164 of 1928 and Appeal No. 501 of 1930. This statement runs as follows: Het Narain, my father, the zamindar of mauza Nawabpura, died on 15th October 1905. I am his only heir, but as a matter of fact, this property belonged to Het Narain and Mt. Lachhmin Kunwar, his sister, therefore, we, i.e., I and Lachhmin Kunwar, are in possession of the property in equal shares. I pray that the name of Het Narain may be struck off and that my name and the name of Lachhmin Kunwar sister of the deceased, may be entered in equal shares. 12. These statements are obviously quite inconsistent with the claim set up by Har Sarup in the two suits brought by him. Though there is no other statement of Har Sarup on the record, yet it is an admitted fact that he gave his consent to the entry of Lachhmi Kuar's name in respect of a half share in the whole of the zamindari property belonging to the family and it is important to note that in pursuance of that consent the name of Lachhmi Kuar was actually entered in the revenue papers in respect of a half share not only in Sikri and Nawabpura but also in other properties including those which are the subject of dispute in Suit No. 164 of 1928 and Appeal No. 501. Mutation was thus made in favour of Mt. Mutation was thus made in favour of Mt. Lachhmi Kuar in respect of a half Share in two villages named Rajpur Khurd and Tanda Umarpur. This property has been the subject of a previous litigation between the parties to which we shall presently refer. Har Sarup maintains that these mutations in favour of Lachhmi Kuar were made purely for purposes of consolation. These transactions took place in or about the year 1906. It appears that subsequent to these proceedings Har Sarup and Lachhmi Kuar were associated in several transactions relating to family property uptill 1912 when Lachhmi Kuar died. In entering into these subsequent transactions Har Sarup, as it were, took the place of his father Het Narain. Exhibit 4 in Appeal No. 373 is a lease jointly executed by Lachhmi Kuar and Har Sarup in respect of the house known as Sarai Kaharan oh 8th February 1909. Exhibit 5 of First Appeal No. 373 is a plaint in a suit brought jointly by Har Sarup and Lachhmi Kuar in respect of the same house on 2nd April 1909. Exhibit 7 in First Appeal No. 373 is a rent note executed by one Chandi Prasad in favour of Har Sarup and Lachhmi Kuar on 5th November 1910 in respect of another house known as the Shiwalewala house which has been referred to above. 13. Then there are four documents regarding which there is a contest between the parties as to the period when they were executed, though it is admitted that they are all in the handwriting of Har Sarup. These documents are Ex. PP (Appeal No. 500) Ex. 5H/1, (First Appeal No. 501), Ex. 5H/3 (First Appeal No. 501) and Ex. 5H/4 (First Appeal No. 501). Taken together these documents which are admittedly in the handwriting of Har Sarup show that he definitely proposed a partition of the whole family property both zamindari and house property, in equal shares between himself and Anand Sarup. According to the defence, one of these documents, namely, Ex. PP was written in 1903 or 1904 while the other three were written somewhere about 1912. Har Sarup's case is that these documents which are only tentative proposals for partition which was never actually effected were written somewhere about 1920 after disputes had arisen in the family. According to the defence, one of these documents, namely, Ex. PP was written in 1903 or 1904 while the other three were written somewhere about 1912. Har Sarup's case is that these documents which are only tentative proposals for partition which was never actually effected were written somewhere about 1920 after disputes had arisen in the family. The documents themselves bear no date and the evidence bearing on that point which has been produced by the defendants is too meagre to enable us to fix the exact period when these documents were written. The fact however remains that these documents clearly indicate that Har Sarup admitted the title of Anand Sarup to one half of the family property. Lachhmi Kuar died in the year 1912 and a question then arose as to the mutation of the properties which stood in her name. In the course of one of the mutation proceedings which ensued upon Lachhmi Kuar's death Har Sarup was examined on 12th January 1913 and he then made a statement which is undoubtedly of great consequence. The statement runs as follows: The name of Munshi Anand Sarup who is the adopted son and heir of Mt. Lachmin Kunwar may be entered against the half share of Mt. Lachhmin Kunwar in the village of Indhanpur Hasanpur and my name may be entered against the other half. It was omitted to be entered during the life the of the Musammat, We continued to make realizations in equal shares and still do so. There is no other heir except us both, the equal sharers in the property aforesaid. 14. At this stage Anand Sarup, who was of course a party to the proceedings put a definite question to Har Sarup in the following terms: Whose name should be entered in the place of the name of Mt. Lachhmin Kunwar in respect of the villages of Sikri and Kanakpur parts 1 and 2? 15. It will be noted that the properties specifically referred to in this question are items 1, 2 and 3 in Har Sarup's plaint in Suit No. 164 of 1928. In answer to this specific question Har Sarup made the following reply: In place of the name of the Musammat aforesaid only the name of Munshi Anand Sarup should be entered against the villages of Sikri, Kanakpur 1 and Kanakpur 2. There is no other heir besides him. In answer to this specific question Har Sarup made the following reply: In place of the name of the Musammat aforesaid only the name of Munshi Anand Sarup should be entered against the villages of Sikri, Kanakpur 1 and Kanakpur 2. There is no other heir besides him. I do not claim that I am the heir of the Musammat aforesaid. 16. It is obviously quite impossible to explain this conduct on the part of Har Sarup except on the hypothesis that he admitted the title of Lachhmi Kuar as a co-owner with Het Narain in the whole of the family property. His statement is undoubtedly quite inconsistent with the claim now made by him. It is particularly to be noted in this connexion that Indhanpur Hasanpur in which Har Sarup obtained mutation in his favour in respect of a half share had been purchased solely by Lachhmi Kuar as proved by Ex. 5 L in First Appeal No. 501. From this document, which is a sale certificate dated 24th April 1872 it appears that 69 acres of land belonging to a rebel named Ghulam Husain which had been confiscated by Government were put up for sale and were purchased by Mt. Lachhmi Kuar for Rs. 3775. It is significant that no mutation in respect of any part of this property was made in favour of Har Sarup at any time during the period between 1872 and 1912 when Lachhmi Kuar died. One of the important pleas raised by the defendants rests upon this transaction of 12th January 1913 as evidenced by the statement of Har Sarup himself which has been referred to above and which is Ex. P in First Appeal No. 501. In this connexion reliance is also placed by the defendants upon the transaction, dated 17th March 1915, by which the whole of the zamindari property in village Manpur Muzaffarpur, which had been purchased jointly by Het Narain and Lachmi Kuar, was sold by Anand Sarup and Har Sarup in order to discharge a previous debt payable by Het Narain alone. This plea shall be considered later on in its proper place. 17. Exhibit P in First Appeal No. 500 is the deed, dated 17th March 1915, by which the whole of Manpur Muzaffarpur was sold jointly by Anand Sarup and Har Sarup. This plea shall be considered later on in its proper place. 17. Exhibit P in First Appeal No. 500 is the deed, dated 17th March 1915, by which the whole of Manpur Muzaffarpur was sold jointly by Anand Sarup and Har Sarup. Exhibit VV in First Appeal No. 500 is a receipt, dated 22nd January 1916, showing that a sum of Rs. 5000 was paid by Anand Sarup to one Raghubir Saran, the grandson of Hardeo Das, in full discharge of the bound, dated 20th July 1900, executed jointly by Het Narain and Anand Sarup in order to pay off the debt incurred by Het Narain alone under a bond given by him to one Mt. Janki. Nothing appears to have happened until the year 1920 to disturb the perfectly peaceful relations that prevailed in the family. There is some documentary evidence, which need not be referred to in detail to show that sometime before the year 1917 when house tax was introduced for the first time in the city of Moradabad Har Sarup and Anand Sarup occupied separate portions of the house which is the subject of dispute in Suit No. 2 of 1929 and were separately assessed to that tax. Reference has already been made above to a document (Ex. PP of appeal No. 500) which is in the handwriting of Har Sarup himself and from which it appears that he proposed a partition in equal shares between himself and Anand Sarup of the family house which is the subject of dispute in Suit No. 2 of 1929. The defendants fix 1903 or 1904 as the date of that document and their case is that in pursuance thereof a partition of the family house did actually take place in or about 1905 and it was in consequence of that partition that the defendants came into separate possession of the three portions of the house from which Har Sarup seeks to eject them in Suit No. 2 of 1929. Har Sarup's case, however, is that no partition actually took place and the defendants remained in possession of some portions of the house only because they were members of the family closely related to him. 18. The year 1920 marks the commencement of dissension in this peaceful family. Har Sarup's case, however, is that no partition actually took place and the defendants remained in possession of some portions of the house only because they were members of the family closely related to him. 18. The year 1920 marks the commencement of dissension in this peaceful family. It is admitted that Har Sarup had by that time sold most of the property that stood in his name in satisfaction of the debts incurred by him. The property this sold by Har Sarup included items 1, 2 and 3 of the plaint in Suit No. 164 of 1928 which has given rise to Appeal No. 501 of 1930, These were the zamindari shares in villages Sikri, Kanakpur (1) and Kanakpur (2) Anand Sarup set the ball of dissensions rolling by making three applications on 7th October 1920 in respect of these three villages. In each application it was alleged that Har Sarup who was the lambardar of the village, had sold away his entire zamindari share and was therefore liable to be removed and in his stead the applicant Anand Sarup was fit to be appointed lambardar. These three applications are Exs. 3-A, 3-B, and 4-C on the record of First Appeal No. 501. Exhibit 4-A of First Appeal No. 501 is a copy of an order passed by the revenue Court directing a notice of Anand Sarup's application relating to village Kanakpur (2) being issued to Har Sarup. It may safely be presumed though there is no documentary evidence on the record to that effect, that a similar notice was issued to Har Sarup with regard to the other two applications made by Anand Sarup in respect of villages Sikri and Kanakpur (1). Then we have two documents Exs. 3-Z and 4-B (First Appeal No. 501) to show that Har Sarup was removed from lambardarship of villages Kanakpur (2) and Kanakpur (1). There is no such document in respect of village Sikri but it may safely be presumed that a similar order was passed regarding that village. These proceedings naturally gave offence to Har Sarup and his sons with the result that his youngest son Harnam Sarup, who had just attained majority ipstituted a suit in the year 1921 against Anand Sarup, his two sons Govind Sarup and Madhu Sudan Saran as well as his seven grandsons. These proceedings naturally gave offence to Har Sarup and his sons with the result that his youngest son Harnam Sarup, who had just attained majority ipstituted a suit in the year 1921 against Anand Sarup, his two sons Govind Sarup and Madhu Sudan Saran as well as his seven grandsons. As already stated, all of them excepting Anand Sarup who is now dead are respondents in First Appeal No. 501. In this suit Har Sarup and his two sons Bhagwati Sarup and Narain Sarup were also impleaded as pro forma defendants. It was undoubtedly a representative suit in which Harnam Sarup claimed a title to the whole of the family property, including the properties which are the subject-matter of the present appeals, on behalf of himself and the three pro forma defendants, Har Sarup, Bhagwati Sarup and Narain Sarup. From Ex. U in First Appeal No. 500 it appears that Harnam Sarup claimed the following relief: On the establishment of the fact that defendants 1 to 10 (Anand Sarup and his descendants) have no proprietary concern in the property bounded and specified as below, being the joint ancestral property of the plaintiff, he (the plaintiff may be put in proprietary possession thereof, the defendants having been dispossessed therefrom and ail their right as alleged by them having been declared null and void and the rights of defendants 11 to 13 (Har Sarup, Bhagwati Sarup and Narain Sarup) may be safeguarded. 19. In the written statement filed by Anand Sarup in that suit which is Ex. XX-2 of First Appeal No. 373 several plea were raised, the principal ones being; (1) That Het Narain was never adopted by Sipahi Singh. (2) That Radha Kuar, the widow of Sipahi Singh remained in adverse possession of the whole property left by Sipahi Singh for more than twelve years and having thus acquired an absolute title made a will by which she divided the property half and half between her daughter Lachhmi Suar and Het Narain. (3) That Lachhmi Kuar abided by the will so made by Radha Kuar and as a favour allowed Het Narain to obtain possession of half the property. (3) That Lachhmi Kuar abided by the will so made by Radha Kuar and as a favour allowed Het Narain to obtain possession of half the property. (4) That the suit was barred by limitation, (5) That the plaintiff Harnam Sarup had attained majority more than three years before the date of the institution of the suit and the suit was consequently barred by limitation on that ground also. 20. The Court framed several issues relating to these pleas but decided only two of them, namely, what was the plaintiff's age at the time of the suit and whether the suit was time-barred. The decision on these two issues was in the following terms: The plaintiff has adduced no evidence. Defendant 1 deposes that the plaintiff was born on Ashtami of Katik 1899 (i.e., 26th October 1899). The extract C/90 from the register of births shows that the plaintiff was born on 26th October 1899. Defendant 1 deposes that the extract is of the entry of the plaintiff's birth. Defendant 2 also deposes that the plaintiff was born in October 1899. The plaintiff's age on the date of the suit was twenty-one years and eleven days. The suit is therefore time-barred. I find the issues accordingly. The suit fails on the above findings, so there is no need to enter into and determine any other issues. 21. It is evident from this that the Court never applied its mind to any other pleas of fact or law and did not actually decide any other issue in the case. This decision has however been made the basis of a plea of res judicata by the respondents. That plea shall be considered at its proper place. In the year 1922 there were several other manifestations of the dispute which had arisen between Anand Sarup and Har Sarup. On 2nd June 1922 Anand Sarup made an application to the Municipal Board for permission to make some new constructions in a portion of the family house known as the Phatakwala to which reference has already been made. A counter application to the same effect was made by Har Sarup on 5th June 1922. On 2nd June 1922 Anand Sarup made an application to the Municipal Board for permission to make some new constructions in a portion of the family house known as the Phatakwala to which reference has already been made. A counter application to the same effect was made by Har Sarup on 5th June 1922. It appears that Anand Sarup obtained the necessary permission and hurriedly made some constructions in accordance therewith and having done so he instituted a suit on 11th July 1922 in which he prayed for a declaration that the constructions in question had been made by him, In his plaint in that suit Anand Sarup alleged that he was the owner in possession of the portion of the house in which the constructions in question had been made. This suit was decreed and Har Sarup's appeal from that decree was dismissed. It is important to note that from the deposition of Har Sarup in that suit, which is Ex. HH on the record of First Appeal No. 501, it is clear that he made an uneqnivocal admission of Anand Sarup's right to the half share in the whole family property. Simultaneously with this suit Anand Sarup instituted another suit for profits in respect of his share in villages Raipur Khurd and Tanda Umarpur to which reference has already been made. 22. It has already been stated above that there is a document on the record (Ex. PP in First Appeal No. 501) from which it appears that on 22nd January 1866 a suit was instituted jointly by Het Narain and Lachhmi Kuar in respect of village Umarpur Tanda which had previously been purchased by Het Narain alone. Mutation in respect of a half share in village Umarpur Tanda was made in favour of Lachhmi Kuar after the death of Het Narian with the consent of Har Sarup. At the same time a half share of village Raipur Khurd was mutated in Lachhmi Kuar's name upon a statement made by Har Sarup himself. Upon the death of Lachhmi Kuar in 1912, mutation in respect of these properties was made in favour of Anand Sarup with the consent of Har Sarup. Anand. Sarup's name was thus recorded in the revenue papers as that of a cosharer in villages Khurd and Tanda Umarpur and it was upon that basis that he brought the suit for profits. Anand. Sarup's name was thus recorded in the revenue papers as that of a cosharer in villages Khurd and Tanda Umarpur and it was upon that basis that he brought the suit for profits. Har Sarup resisted the suit on the ground that Anand Sarup had no proprietary title in spite of the mutation in his favour. It is evident that this plea could not have prevailed in the revenue Court and he was, therefore, driven to institute a Suit No. 114 of 1923 in which he alleged that he had inherited the whole family property from his father Het Narain who bad been adopted by Sipahi Singh and that the mutation in favour of Lachhmi Kuar was only for her consolation and out of regard for the services which she had rendered to Het Narain by assuming charge of his household when his wife died and bringing up his infant son Har Sarup. He further alleged that he consented to the subsequent mutation in favour of Anand Sarup because the latter was his elder brother and had been managing the property as a trustee on his behalf. Upon these allegations he claimed a declaration that Anand Sarup was not entitled to any proprietary interest in villages Raipur Khurd and Umarpur Tanda and could not, therefore, claim any profits as he had done in the suit instituted by him. In resisting this suit Anand Sarup raised all the pleas which he had previously raised in suit No. 12 of 1921 brought by Harnam Sarup to which reference has already been made. 23. He further pleaded that the suit was barred by res judicata in view of the fact that the previous suit brought by Harnam Singh which related to the whole of the family property including the villages of Raipur Khurd and Umarpur Tanda had been dismissed. Har Sarup's suit was dismissed by the trial Court but was partly decreed by the High Court in First Appeal No. 21 of 1925, decided on 20th July 1927. Almost the whole of the documentary evidence referred to above which has to be considered in these appeals was before the High Court in that case with the exception of four documents, namely, Ex. PP (Appeal No. 500), Ex. 5H-1 (Appeal No. 501), Ex. 5H-3 (Appeal No. 501) and Ex. 5H-4 (Appeal No. 501). Almost the whole of the documentary evidence referred to above which has to be considered in these appeals was before the High Court in that case with the exception of four documents, namely, Ex. PP (Appeal No. 500), Ex. 5H-1 (Appeal No. 501), Ex. 5H-3 (Appeal No. 501) and Ex. 5H-4 (Appeal No. 501). As stated above, these four documents which are admittedly in the handwriting of Har Sarup, tend to show when taken together that he definitely proposed a partition of the whole family property, both zamindari and house property, in equal shares between himself and Anand Sarup. Upon a consideration of the evidence before it the High Court arrived at the following conclusions: (1) That Het Narain was adopted by Sipahi Singh. (2) That nothing was done by Het Narain to divest him of the title which he had acquired to the property left by Sipahi Singh, (3) That the mutation in favour of Lachhmi Kuar upon Het Narain's death was only for her consolation. (4) That the possession of Radha Kuar over the family property after the death of Sipahi Singh was only that of a guardian on behalf of Het Narain and she could not, therefore, make any will. 24. Upon these findings the High Court decreed Har Sarup's suit in respect of village of Raipur Khurd. With regard to Umarpur Tanda the High Court found that it was a property which had been acquired by Het Narain after Sipabi Singh's death and by his conduct in relation to that property he had allowed a share in it to Lachhmi Kuar as recompense for the services rendered by her to him and also because he wanted to make some provision for his eldest son Anand Sarup whom he had given away in adoption to Lachhmi Kuar in 1864 and who had thus been deprived of his share in the family property. Har Sarup's claim with regard to Umarpur Tanda wag, therefore, dismissed. It was also pleaded by Anand Sarup in that suit that the share acquired by Lachhmi Kuar in village Manpur Muzaffarpur jointly with Het Narain had bean subsequently sold by Anand Sarup along with Har Sarup by a sale deed, dated 17th March 1915 (Ex. Har Sarup's claim with regard to Umarpur Tanda wag, therefore, dismissed. It was also pleaded by Anand Sarup in that suit that the share acquired by Lachhmi Kuar in village Manpur Muzaffarpur jointly with Het Narain had bean subsequently sold by Anand Sarup along with Har Sarup by a sale deed, dated 17th March 1915 (Ex. P in First Appeal No. 500) in order to satisfy a debt which was payable only by Het Narain and on this basis it was contended that Har Sarup was estopped from denying Anand Sarup's proprietary right in villages Raipur Khurd and Tanda Umarpur. This plea was rejected by the High Court on the ground that Manpur-Muzaffarpur was ancestral property and by selling Lachhmi Kuar's share in that property Anand Sarup did not in fact lose any property to which he was entitled. It is important here to note that Anand Sarup never pleaded in that suit that any part of the family property had come to Lachhmi Kuar and after her to him by virtue of any family arrangement. The High Court had, therefore, no occasion to consider in that case whether the conduct of Het Narain and Har Sarup during the long course of years as evidenced by the transactions referred to above did or did not tend to prove an arrangement or settlement by the family that the whole of the family property should be divided half and half between Het Narain and Lachhmi Kuar. Being thus encouraged by his partial success in suit No. 114 of 1923 Har Sarup filed the two suits (No. 164 of 1928 and No. 2 of 1929) which have given rise to Appeals Nos. 501 and 500 respectively. The circumstances in which Anand Sarup filed the suit which has given rise to Appeal No. 373 have already been stated above. 25. We shall now set out the pleas raised on behalf of the defendants in suits Nos. 164 of 1928 and 2 of 1929. In doing so we shall confine ourselves to the points actually urged before us in the course of argument. They are as follows: (1) That these suits are barred by O. 2, R. 2, Civil P.C. (2) That these suits are barred by res judicata. 164 of 1928 and 2 of 1929. In doing so we shall confine ourselves to the points actually urged before us in the course of argument. They are as follows: (1) That these suits are barred by O. 2, R. 2, Civil P.C. (2) That these suits are barred by res judicata. (3) That the properties which are the subject-matter of dispute in these suits came to Lachhmi Kuar and after her to Anand Sarup by virtue of a family arrangement. (4) That in any case Har Sarup is estopped from denying the right and title of the defendants in villages Sikri, Kanakpur (I) and Kanakpur (II) in consequence of the fact that upon his admission of that right and title on 12th January 1913 in the course of the mutation proceeding which ensued upon Lachhmi Kuar's death he obtained mutation in his favour in respect of a half share in village Indhanpur Hasanpur which belonged exclusively to Lachhmi Kuar and subsequently sold away that share in satisfaction of his own debts. (5) That Har Sarup's claim in suit No. 2 of 1929 in respect of certain portions of the family house which are exclusively in the possession of the defendants is barred by time, inasmuch as the defendants acquired possession of that property by virtue of a private partition between Har Sarup and Anand Sarup sometime in the year 1905 and have ever since that time been in possession thereof, openly asserting their own title to it and denying the title of Har Sarup. (6) That the conduct of Het Narain and Har Sarup during a long course of years amounted to a representation that Lachhmi Kuar was the owner of half of the family property and believing that representation and acting upon it the defendants spent their own money to the extent of about Rs. 10,000 in making fresh constructions between 1900 and 1909 without any objection having been taken by Har Sarup. (7) That in any case suit No. 2 of 1929 which relates to the family house alone is barred by O. 2, R. 2, Civil P.C., inasmuch as the claim in that suit being based upon the same cause of action should nave been included in the previous suit No. 164 of 1928. 26. (7) That in any case suit No. 2 of 1929 which relates to the family house alone is barred by O. 2, R. 2, Civil P.C., inasmuch as the claim in that suit being based upon the same cause of action should nave been included in the previous suit No. 164 of 1928. 26. We shall now proceed to consider the first point raised by the defendants, namely, that the two suits brought by Har Sarup are barred by O. 2, R. 2, Civil P.C. The argument on behalf of the defendants is that the claim in these two suits rests upon the same cause of action on which the previous suit No. 114 of 1923 was founded. It is contended that even prior to Suit No. 114 of 1923 the defendants had openly asserted their title to a half share in the family property and had openly denied the title of Har Sarup to the property in their possession. Har Sarup had thus been ousted from the whole of the family property and he could not legally have confined his claim to villages Raipur Khurd and Umarpur Tanda as he did in instituting Suit No. 114 of 1923. He was bound under the law to include the whole of the claim in respect of the cause of action and he must therefore be deemed to have abandoned his claim with respect to the properties which are the subject-matter of dispute in the two suits which are now under consideration. In support of these contentions reliance is placed upon the various transactions which have already been set out in detail and which need not be repeated here. The argument is sought to be re-enforced by reference to the following decided cases: ('42) 29 AIR 1942 All. 122 : 199 I.C. 190 : ILR (1942) All. 103 : 1941 A.L.J. 721, Mohammad Khalil Khan v. Mahboob Ali Mian, ('37) 24 AIR 1937 Rang. 324 : 170 I.C. 946, Ma Pwa Shin v. U Po Sin, ('94) 16 All. 165 : 1894 A.W.N. 65, Murti v. Bhola Ram, ('31) 18 AIR 1931 Bom. 114 : 129 I.C. 737 : 32 Bom. L.R. 1473, Lala Darbari Lal Vs. Lala Gobind Saran 27. Upon a careful consideration of all the facts of the case and the authorities cited by the learned counsel for the defendants we find ourselves unable to accede to his contention. 114 : 129 I.C. 737 : 32 Bom. L.R. 1473, Lala Darbari Lal Vs. Lala Gobind Saran 27. Upon a careful consideration of all the facts of the case and the authorities cited by the learned counsel for the defendants we find ourselves unable to accede to his contention. The question whether a subsequent suit is founded upon the same cause of action on which a previous suit was based is essentially one of fact and must be determined upon the facts of each case. Now, in the present case, the contention is that when Har Sarup instituted Suit No. 114 of 1923 in respect of village Eaipur Khurd and Tanda Umarpur he had the same cause of action in respect of the properties which are the subject of dispute in the two suits now brought by him, namely, No. 164 of 1928 and No. 2 of 1929 and hence these latter suits must be held to be barred by O. 2, R. 2. It is, therefore, necessary to realise in the first instance the exact position of Har Sarup in relation to the property which was the subject of dispute in Suit No. 114 of 1923. He claimed to be in actual possession of that property and this claim was upheld by the Court in spite of a denial on the part of the defendants. With regard to the rest of the family property which is the subject of dispute in the two suits with which we are now concerned his position was entirely different. The defendants were admittedly in possession of those properties. It is true that be alleged that they were in permissive possession but upon the facts already stated there can be little doubt that they were openly asserting their title to the properties in their possession. This open assertion of title began in the year 1920. The utmost that can be urged in favour of the defendants on the basis of that open assertion of title is that they had ousted Har Sarup from those properties. The position, therefore, was that Har Sarup was in actual possession of villages Raipur Khurd and Tanda Umarpur, whereas he had been ousted from other properties, With regard to the former a suit for profits bad been launched by Anand Sarup and Har Sarup had to resist that suit. The position, therefore, was that Har Sarup was in actual possession of villages Raipur Khurd and Tanda Umarpur, whereas he had been ousted from other properties, With regard to the former a suit for profits bad been launched by Anand Sarup and Har Sarup had to resist that suit. Anand Sarup was recorded as a cosharer in the village papers and hence his suit for profits was bound to succeed in the revenue Court until Har Sarup obtained a declaration of his title from the civil Court. It was in these circumstances that Har Sarup brought Suit No. 114 of 1923 in respect of villages Raipur Khurd and Tanda Umarpur. 28. It is now to be considered whether upon these facts it can be held that the cause of action for Suit No. 114 of 1923 was the same as the cause of action for the two subsequent suits relating to other properties with which we are now concerned. In our judgment, the answer is clearly in the negative. The right of an owner to maintain his possession over a particular item of property is quite distinct and apart from his right to recover possession of and the item of property from which be has been ousted by a trespasser. Where there is an infringement of two separate rights by two separate acts of trespass committed by the same trespasser there must be two separate causes of action. It is true that in some cases it has been held upon the facts before the Court in those cases that several acts of trespass were so connected together in point of time as to form part of the same transaction and hence they did not give rise to separate causes of action but that does not affect the question in issue before us. Here we are concerned with distinct acts of trespass far removed from each other in point of time so that it is not possible to hold that they were parts of the same transaction. Again, as we have pointed out, we are concerned in the present case with separate infringements of two distinct rights. A careful perusal of the cases referred to by learned counsel for the defendants leaves no doubt in our mind that in each one of those cases there was an infringement of only one right and there was but one cause of action. A careful perusal of the cases referred to by learned counsel for the defendants leaves no doubt in our mind that in each one of those cases there was an infringement of only one right and there was but one cause of action. We consider it unnecessary to refer in detail to the facts of each one of those cases and we shall confine ourselves to the latest case upon which reliance has been placed, namely ('42) 29 AIR 1942 All. 122 : 199 I.C. 190 : ILR (1942) All. 103 : 1941 A.L.J. 721, Mohammad Khalil Khan v. Mahboob Ali Mian. In that case the plaintiffs bad succeeded by inheritance to three separate items of property belonging to one Rani Barkat. unnissa. Two of those properties were situated in Oudh, while the third lay in the district of Shahjahanpur. As regards the property in Shahjahanpur the defendants had obtained mutation in their favour. With regard to the other two properties the defendants had denied the title of the plaintiffs, though they did not actually succeed in obtaining mutation. It is important to note that the plaintiffs were Dot in actual possession of any one of the three items of property which they claimed in their suit. This is apparent from the following extract from the judgment of this Court in that case: The cause of action in the Oudh suit and in the present suit consisted of the facts that Rani Barkatunnisa was the owner of the disputed properties that she died on 13th April 1927, that she was a Sunni by faith, that the plaintiffs were the heirs of Rani Barkatunnisa and entitled to inherit, that in the Oudh case the defendants bad denied the title of the plaintiffs and in the other case the defendants in pursuance of the denial of title bad obtained possession of the property. Mutation of names had already been obtained by the defendants over the Shahjahanpur property by reason of the order of the Collector dated 20th June 1928, when the Oudh suit was filed on 14th September 1928 and the plaintiffs were entitled to make a claim in respect of the Shahjahanpur property when they filed Suit No. 8 of 1928 in the Oudh Chief Court. 29. 29. In these circumstances the plaintiffs first instituted a suit in respect of the Oudh properties alone and later on filed another suit in respect of the property in Shahjahanpur. Upon a consideration of all the facts of the case the learned Judges of this Court held that the plaintiffs bad only one cause of action in respect of the properties and their omission to claim the Shahjahanpur property in the first suit barred their subsequent suit in respect of that property. It is clear from their judgment that upon the facts in that case the learned Judges came to the conclusion that the various acts of trespass were so connected together as to form part of the same transaction and thus the plaintiffs had only one cause of action. They refer to the following observations of their Lordships of the Privy Council in Jagathamba Ammal Vs. Ramaswami Iyengar, AIR 1915 Mad 732 Where the title of the plaintiff is the same and the trespasser defendant is the same defendant in both suits, the question whether the second suit is barred by the first, under O.2, R. 2 depends upon the answer to the following question, namely: Did the two trespasses take place in or about the same time and as part of the same transaction so that the two trespasses might be considered (taking a common sense view of the facts) as a single transaction forming one and the same cause of action? If both trespasses had taken place before the first suit had been brought O. 2, R. 2 might be a bar to the second Suit. 30. Having referred to these observations the learned Judges proceeded to state: In the case before us the trespasses on title or slander of title in the case so far as the Oudh suit was concerned were not distinct and different either in point of time or in point of character from the trespass on possession in the case of the Shahjahanpur property and the present plaintiffs therefore ought to have included the claim regarding the Shahjahanpur property in the earlier suit. 31. In the case before us we find however that the separate acts of trespass were far removed in point of time and were also different in character so that they cannot be said to have formed part of the same transaction. 31. In the case before us we find however that the separate acts of trespass were far removed in point of time and were also different in character so that they cannot be said to have formed part of the same transaction. We find further that the cause of action of the plaintiff with regard to the property which was the subject-matter of suit No. 114 of 1923 was, in our judgment, quite distinct and apart from his right to recover possession of other properties from which he bad been ousted. He bad clearly two different causes of action in respect of two different properties. It was of course open to him at the date of the institution of suit No. 114 of 1926 to combine his two causes of action and to claim not only a declaration of his title in respect of villages Raipur Khurd and Tanda Umarpur but also possession over other properties from which he had been ousted, but O. 2, R. 2 does not make it incumbent upon the plaintiff to combine separate causes of action in the same suit. All that it lays down is that the plaintiff must "include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action." We are not therefore prepared to hold that suits No. 164 of 1928 and No. 2 of 1929 are barred by O. 2, R. 2. 32. The next contention on behalf of the defendants is that suits Nos. 164 of 1928 and 2 of 1929 are barred by res judicata. This contention is based upon the fact that Harnam Sarup, son of Har Sarup, had instituted suit No. 12 of 1921 in which he had claimed the whole family property not only on his own behalf but also on behalf of his father Har Sarup and his two brothers and that suit having been dismissed the two suits now brought by Har Sarup must be deemed to be barred by res judicata. It may be pointed out here that the same plea was raised by the defendants in suit No. 114 of 1923 but it was rejected by the trial Court and they did not even press it in appeal. It may be pointed out here that the same plea was raised by the defendants in suit No. 114 of 1923 but it was rejected by the trial Court and they did not even press it in appeal. It has however been strenuously contended before us that suit No. 12 of 1921 brought by Harnam Sarup was a representative suit and it must now be held in consequence of the dismissal of that suit that the present suits by Har Sarup are barred by res judicata inasmuch as Har Sarup must be deemed to be claiming under Harnam Sarup in view of Expln, 6 to S. 11, Civil P.C., which runs as follows: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 33. The contention on behalf of Har Sarup on the other hand is that this plea raised by the defendants is itself barred by res judicata inasmuch as they raised this plea in suit No. 114 of 1923 and it was rejected. On behalf of the defendants it is argued that the judgment of the High Court in appeal made no reference to the defendants' plea of res judicata in Suit No. 114 of 1923 which had been rejected by the trial Court and the judgment of the High Court wiped away the judgment of the trial Court. We find however that it is quite unnecessary to discuss these points because the contention raised on behalf of the defendants is capable of an easy answer and that is that Suit No. 12 of 1921 by Harnam Sarup was never finally decided on the merits. We have already pointed out above that the only issue which the trial Court decided in that suit was whether Harnam Sarup had instituted the suit within three years of attaining his majority and that issue having been found in the negative the suit was dismissed. It was upon this very ground that the plea of res judicata raised by the defendants in Suit No. 114 of 1923 failed and it is obvious that the defendants could not press that plea in appeal. It was upon this very ground that the plea of res judicata raised by the defendants in Suit No. 114 of 1923 failed and it is obvious that the defendants could not press that plea in appeal. The question of title raised by Harnam Sarup was never finally decided and we must therefore bold that the two suits now brought by Har Sarup are not barred by res judicata. The next contention on behalf of the defendants is that the properties which are the subject-matter of dispute in Suits Nos. 164 of 1928 and 2 of 1929 came to Lachhmi Kuar and after her to Anand Sarup by virtue of a family arrangement. We must repeat here that no such plea was raised by the defendants in resisting Suit No. 114 of 1923. This plea applied as much to villages Raipur Khurd and Tanda Umarpur as to other items of family property and it is obvious that it might and ought to have been made a ground of defence in that suit. Upon this basis it is urged on behalf of Har Sarup that this plea is now barred by res judicata in view of Expln. 4 to S. 11, Civil P.C., which runs as follows: Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 34. As against this it is contended on behalf of the defendants that the principle of constructive res judicata embodied in Expln, 4 to S. 11, Civil P.C., cannot be applied where the property in the subsequent suit is different from the property in the previous suit. Upon the facts stated above, we would have been inclined to look with favour upon the plea of family arrangement raised by the defendants but we find that the matter was one which might and ought to have been raised in the previous suit by the defendants and hence it must now be deemed to be barred by res judicata. It is evident that the High Court in dealing with Suit No. 114 of 1923 could not have decreed Har Sarup's claim in respect of Raipur Khurd if the defendants had raised the plea of family arrangement and if that plea had been allowed to prevail. It is evident that the High Court in dealing with Suit No. 114 of 1923 could not have decreed Har Sarup's claim in respect of Raipur Khurd if the defendants had raised the plea of family arrangement and if that plea had been allowed to prevail. It is now urged on behalf of the defendants that Mt. Radha Kuar who had brought up Het Narain as her own son but who was equally anxious that her own daughter Lachhmi Kuar should not be totally deprived of the property to which she would have been entitled but for the adoption of Het Narain, expressed her desire in the shape of an oral will that the whole family property should be divided half and half between Het Narain and Lachhmi Kuar and all members of the family decided to respect her wishes and thus arrived at a family arrangement either shortly before or after Badha Kuar's death that the family property should be divided half and half between Het Narain and Lachhmi Kuar. It is pointed out with considerable force that all subsequent dealings with the family property at first jointly by Het Narain and Lachhmi Kuar and then by Har Sarup and Lachhmi Kuar as well as the mutation in favour of Lachhmi Kuar upon Het Narain's death and the mutation in favour of Anand Sarup with the consent of Har Sarup on the death of Lachbmi Kuar can be explained on that basis. The fact, however, remains that this matter could have been raised with equal force as a ground of defence in suit No. 114 of 1923 but it was not raised. The question is: What is the effect of this omission on the part of the defendants? The answer to that question in our judgment, is that the matter must now be deemed to be barred by res judicata. The defendants' contention, however, is that the principle of constructive res judicata cannot be applied because the properties which are the subject of dispute in the two suits with which we are now concerned are different from the property to which suit No. 114 of 1923 related. 35. In support of this contention reliance is placed upon the following cases: ('97) 24 Cal. 711 : 1 C.W.N. 565, Kailash Mondul v. Baroda Sundari Dasi, ('01) 28 Cal. 17, Abdul Shakur Khan Vs. Mt. 35. In support of this contention reliance is placed upon the following cases: ('97) 24 Cal. 711 : 1 C.W.N. 565, Kailash Mondul v. Baroda Sundari Dasi, ('01) 28 Cal. 17, Abdul Shakur Khan Vs. Mt. Rafiqunnissa and Others the defendant in a suit for rent denied the relationship of landlord and tenant between him and the plaintiff but did not plead that the plaintiff was a mere benamidar. The plaintiff obtained a decree and in a subsequent suit by the same plaintiff against the same defendant for rent for subsequent years, the defendant inter alia contended that the plaintiff was a mere benamidar. The plaintiff objected that the previous decree was a bar to the defendant's contention. It was held by the learned Judges of the Calcutta High Court that even if the matter in issue might and ought to have been made a defence in the former suit yet as it was not finally heard and decided by the Court within the meaning of S. 13, Civil P.C., the defendant was not precluded in the subsequent suit from raising the objection that the plaintiff was a mere benamidar. It is noticeable that in his judgment in that case Maclean C.J. observed as follows: We have no materials before us to enable us to say that the matter which the defendant now desires to set up might or ought to have been made ground of defence in the particular action in respect of that particular rent. The matters he now desires to set up may not have been within the knowledge of the defendant in 1878. Can we say then that he is debarred from going into those matters now? I think not. It may be that on looking further into the matter, some particular issue, precisely similar to some particular issue now raised, was then decided. If so, the principle of res judicata may apply, possibly, to that particular issue. 36. The other learned Judge, Banerji J., observed as Allows: No doubt Expln. 2 is very comprehensive in its terms, but the question is, whether it would include a case like the present. Granting that the matter now in issue might and ought to have been made a ground of defence in the former suit, the question still remains whether it 'has been heard and finally decided' by the Court within the meaning of S. 13. Granting that the matter now in issue might and ought to have been made a ground of defence in the former suit, the question still remains whether it 'has been heard and finally decided' by the Court within the meaning of S. 13. All that Expln. 2 says is that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit;' but it does not go on to say, 'and it shall be deemed to have been heared and finally decided,' notwithstanding that the question was never considered by the Court, and notwithstanding that the subject-matter of the subsequent suit is different from that of the former suit. It is only where the subject-matter of the two suits is the same that the matter can be said to have been heard and finally decided within the meaning of S. 13 of the Code, even though the matter was never raised in issue, but it is very difficult to hold that a matter which was never raised in issue actually in the former suit, and which is raised in defence in a subsequent suit in which the subject-matter is different from that of the former suit, shall, nevertheless, by virtue of Expln. 2 to S. 13, be deemed to have been, not only matter directly and substantially in issue, but matter which has been heard and finally decided. 37. It is pertinent to observe that Maclean C.J. does not appear to have based his decision in the case upon the want of identity of the subject-matter. As regards the observations made by Banerji J. we must say with great respect to the learned Judge that we are unable to appreciate the logic of his argument. He seems to have been prepared to hold that a matter which was never raised in a previous suit should be deemed to have been heard and finally decided if the property affected by the subsequent suit was the same as the property which formed the subject-matter of the previous suit. He seems to have been prepared to hold that a matter which was never raised in a previous suit should be deemed to have been heard and finally decided if the property affected by the subsequent suit was the same as the property which formed the subject-matter of the previous suit. We do not see any reason for holding that a matter which is not raised should be deemed to be finally heard and decided if the property in the two suits is identical, even though as a matter of fact it has never been heard and finally decided. If it can be deemed to be heard and finally decided in such a case there is no reason why it should not also be deemed to have been heard and finally decided even where the property in the subsequent suit is different from the property which forms the subject-matter of the previous suit. This case was followed in ('01) 28 Cal. 17, Woomesh Chandra Maitra v. Barada Das. In this latter case the plaintiff sued for rent which expressly included an item which amounted to an illegal case. The defendant raised no objection and the plaintiff obtained a decree. In a subsequent suit for rent for subsequent years by the same plaintiff the same defendant raised the plea that one of the items comprised in the rent sued for amounted to an illegal case and the learned Judges of the Calcutta High Court held that this objection was not barred by res judicata and they referred to the previous decision of that Court in ('97) 24 Cal. 711 : 1 C.W.N. 565, Kailash Mondul v. Baroda Sundari Dasi and particularly to the observations of Banerji J., which have been referred to above. In Abdul Shakur Khan Vs. Mt. Rafiqunnissa and Others Abdul Shakur Khan v. Mt. Rafiqunnissa a learned Judge of this Court Mukerji J., observed as follows: To start with, Expln. 4 can apply only where the subject-matter of the two suits is identical. Explanation 4 runs as follows: Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 4 can apply only where the subject-matter of the two suits is identical. Explanation 4 runs as follows: Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. For an effectual application of the Explanation, evidently, the subject-matter of the suits must be the same, in both the cases; only the fresh ground on which the claim or defence is based in the second case, has to be different. Where the subject-matter is not identical, Expln. 4, from the very language used, cannot apply. 38. On the basis of these cases, it is contended that the doctrine of constructive res judicata as provided for by Expln. 4 to S. 11, Civil P.C., cannot be applied in the cases before us because there is no identity of subject-matter. We find on the other hand a decision of this Court in ('01) 24 All. 112 : 1901 A.W.N. 177, Chandi Prasad v. Maharaj Mahendra Mahendra Singh which holds a contrary view. In that case the plaintiff was assignee of the Government revenue of a certain village. The village was divided into Khatas but the title to the revenue in respect of each and every khata was one and the same. The plaintiff sued to recover the arrears of the revenue due in respect of one of those Khatas with interest. He had previously brought a similar suit in respect of another Khata and in that suit the defendant had contested his liability to pay interest on the revenue but his plea had been rejected and a decree had been given to the plaintiff. In the subsequent suit the defendant again raised the same plea but it was held that it was barred by res judicata. It is clear from the judgment in that case that it was specifically argued on behalf of the defendant appellant that identity of subject-matter was necessary before the doctrine of constructive res judicata could be applied but this contention was rejected. It is clear from the judgment in that case that it was specifically argued on behalf of the defendant appellant that identity of subject-matter was necessary before the doctrine of constructive res judicata could be applied but this contention was rejected. We have also before us a decision of the Calcutta High Court in ('35) 61 C.L.J. 301 : 157 I.C. 381 : 39 C.W.N. 692, Bishnupada Samanta v. Mohammad Ramail Sircar in which reference was made to the previous decisions of that Court mentioned above which have been relied upon by the learned counsel for the defendants and it was held: If the decree made in the earlier suit is such as would be inconsistent with the plea which might and ought to have been raised, but not actually raised, it must be taken that there has been, for the purpose of res judicata, a final decision by necessary implication. Actual decision on a plea not taken cannot be possible and unless the principle be as formulated the rule of constructive res judicata as formulated in S. 11 of the Code would be rendered almost nugatory. In questions of res judicata identity of the issues and not identity of the subject- matter is relevant. To hold that there would not be a constructive res judicata unless the subject-matter be identical would be to introduce in Expl. 4 to S. 11, Civil P.C., words which are not to be found there. 39. It was also pointed out by Mitter J., who decided that case that after the judgment of Lord Phillimore in AIR 1925 55 (Privy Council) Fateh Singh v. Jagannath Bakshsh Singh the proposition laid down by Banerj J., in ('97) 24 Cal. 711 : 1 C.W.N. 565, Kailash Mondul v. Baroda Sundari Dasi must be held to have been too broadly stated. We find ourselves in entire agreement with the view taken by Mitter J., in ('35) 61 C.L.J. 301 : 157 I.C. 381 : 39 C.W.N. 692, Bishnupada Samanta v. Mohammad Ramail Sircar. We find also that the view which we take is supported by the decision of this Court in ('01) 24 All. 112 : 1901 A.W.N. 177, Chandi Prasad v. Maharaj Mahendra Mahendra Singh. In the case before us it is quite evident that the defendants could and ought to have raised the plea of family arrangement in resisting Suit No. 114 of 1923. 112 : 1901 A.W.N. 177, Chandi Prasad v. Maharaj Mahendra Mahendra Singh. In the case before us it is quite evident that the defendants could and ought to have raised the plea of family arrangement in resisting Suit No. 114 of 1923. If that plea had been raised and if it had succeeded the High Court dealing in appeal with Suit No. 114 of 1923 could not possibly have decreed it in favour of Har Sarup in respect of village Raipur Khurd. The defendants failed to raise the plea and it must, in our judgment, be held that it was by necessary implication rejected by the High Court in the previous suit. We are, therefore, of the opinion that it is now not open to the defendants to raise the plea of family arrangement. 40. The next contention on behalf of the defendants is that in any case Har Sarup was estopped from denying the right and title of the defendants in villages Sikri, Kanakpur (I) and Kanakpur (II) in consequence of the fact that upon his admission of that right and title on 12th January 1913 in the course of the mutation proceeding which ensued upon Lachhmi Kuar's death he obtained mutation in his favour in respect of a half share in village Indhanpur Hasanpur which belonged exclusively to Lachhmi Kuar and subsequently sold away that share in satisfaction of his own debts. In our judgment, the defendants stand on solid ground in raising this plea and it must prevail. The High Court in the previous suit was not concerned with this plea. The previous suit had nothing to do with villages Sikri, Kanakpur (I) and Kanakpur (II) and it was not open to the defendants to raise the plea which they have now put forward on the basis of the transaction dated 12th January 1913. It has already been stated that there is documentary evidence to show that Lachhmi Kuar purchased Indhanpur Hasanpur under a sale certificate in the year 1872. We do not find any basis for holding that the money with which she purchased this property must be deemed to have been a part of Het Narain's estate. It has no doubt been pointed out that Lachhmi Kuar's husband Lalta Prasad was a poor clerk and she could not, therefore, have received the money from him. We do not find any basis for holding that the money with which she purchased this property must be deemed to have been a part of Het Narain's estate. It has no doubt been pointed out that Lachhmi Kuar's husband Lalta Prasad was a poor clerk and she could not, therefore, have received the money from him. That may or may not be correct because it has to be borne in mind that Lalta Prasad, though he entered Government service as a petty clerk, was confirmed as Naib Sarishtadar on 22nd September 1862 and subsequently rose to Sarishtadar at least in 1874, Sipahi Singh, who acquired a considerable estate, was himself no more than a Peshkar. We see no reason to hold that Lalta Prasad could not have acquired sufficient money to enable his wife Lachhmi Kuar to purchase Indhanpur Hasanpur in her own right. Again, it is possible that Lachhmi Kuar might have received monetary gifts from time to time from her mother Radha Kuar and also from Het Narain who had given his eldest son in adoption to her. There is consequently no reason for holding that Lachhmi Kuar did not acquire Indhanpur Hasanpur in her own right. That being so, it is evident that Har Sarup obtained a half share in Indhanpur Hasanpur in consideration of his consent to the mutation of Sikri, Kanakpur (I) and Kanakpur (II) in favour of Anand Sarup. It is clearly established by evidence on the record that the value of the half share in Indhanpur Hasanpur so acquired by Het Narain was almost the same as that of the half share given to Anand Sarup in village Sikri, Kanakpur (I) And Kanakpur (II). It is admitted that Har Sarup sold away the share which he thus acquired in Indhanpur Hasanpur in satisfaction of his own debts. Upon these facts we think it is clear beyond all doubt that Har Sarup was estopped from claiming the half share in Sikri, Kanakpur (I) and Kanakpur (II) which he allowed to be mutated in favour of Anand Sarup in consideration of his getting a half share in Indhanpur Hasanpur to which he could not otherwise be entitled. We hold, therefore, that so far as these three items of property are concerned Har Sarup's claim is barred by estoppel. 41. We hold, therefore, that so far as these three items of property are concerned Har Sarup's claim is barred by estoppel. 41. The next plea of the defendants which we have to consider is that Har Sarup's claim in suit No. 2 of 1929 in respect of certain portions of the family house which are exclusively in the possession of the defendants is barred by time, inasmuch as the defendants acquired possession of this property by virtue of a private partition between Har Sarup and Anand Sarup some time in the year 1905 and have ever since that time been in possession thereof openly asserting their own title to it and denying the title of Har Sarup. In support of this plea, the defendants rely upon four documents namely, Ex. PP (Appeal No. 500) Ex. 5H/1 (Appeal No. 501) Ex. 5H/3 (Appeal No. 501) and Ex. 5H/4 (Appeal No. 501). It has already been stated that taken together these documents which are admittedly in the handwriting of Har Sarup, show that he definitely proposed a partition of the whole family property, both zamindari and house property, in equal shares between himself and Anand Sarup. Now, the defendants' case is that the family house was actually partitioned somewhere about 1905, while Har Sarup's case is that these were only tentative proposals for partition which was never actually effected. The case now set up by the defendants was also set up by them in resisting Suit No. 12 of 1921 brought by Harnam Sarup. They rely upon the evidence of Govind Sarup to prove the alleged actual partition of the family house in or about the year 1905 and this evidence is further supported by the testimony of one Shankar Lal who was a sub-Engineer at that time and who has stated on oath that he prepared a plan showing how the partition was effected between Har Sarup and Anand Sarup. That plan has also been produced by the defendants. The defendants further rely upon documentary evidence to show that Anand Sarup and Har Sarup were separately assessed to house tax in respect of the different portions of the house in their possession. 42. It is a matter of common knowledge that the house tax was introduced for first time in the District of Moradabad in or about the year 1917. Inquiries in connexion with the house tax were instituted much earlier. 42. It is a matter of common knowledge that the house tax was introduced for first time in the District of Moradabad in or about the year 1917. Inquiries in connexion with the house tax were instituted much earlier. From the evidence of Govind Sarup, it would appear that these inquiries were instituted in the year 1912 or 1913. We have already stated above that there is documentary evidence on the record to show that Har Sarup and Anand Sarup were separately assessed to house tax. On behalf of Har Sarup, it is pointed out that the plan of the partition prepared by Shankar Lal does not bear any date and is not signed by him and this, it is contended, shows that the plan was prepared for the purposes of the present case. It is also pointed out by reference to Ex. 4 (First Appeal No. 373) and Ex. 5 (First Appeal No. 373) that a particular item of property which according to the defendants was given to Har Sarup exclusively at the alleged partition in or about 1905, was dealt with jointly by Har Sarup and Lachhmi Kuar in the years 1905 and 1910. Upon a careful consideration of the evidence bearing on the point we are inclined to hold that a partition of the family house did actually take place as alleged by the defendants, though it may not have taken place in or about 1905. There can be no doubt, however, that it must have taken place some time between the year 1912 when Lachhmi Kuar died and the years 1916-17 When the house tax was introduced in Moradabad and Anand Sarup and Har Sarup were separately assessed. It is important to note that the defendants rely principally upon a proposal made by Har Sarup himself and Har Sarup did not have the courage to enter the witness box in order to explain the documentary evidence appearing against him. It is important to note that the defendants rely principally upon a proposal made by Har Sarup himself and Har Sarup did not have the courage to enter the witness box in order to explain the documentary evidence appearing against him. The defendants on the other hand have produced evidence which we are unable to reject in toto merely on the ground that the map of the alleged partition prepared by Shankar Lal which has been produced by the defendants does not bear any date and signature, Har Sarup undoubtedly proposed a partition of the family house and we have definite evidence on the side of the defendants to show that the proposal was carried out and an actual partition took place by virtue of which the defendants came into possession of the three portions of the family house from which Har Sarup sought to eject them while the remaining four portions were alleged to remain as joint property. 43. In our judgment it was the duty of Har Sarup in these circumstances to enter the witness box in order to rebut the case set up by the defendants and his failure to do so must be taken to be a very important circumstance in favour of the defendants' case. We therefore hold that a partition of the family house did actually take place between Anand Sarup and Har Sarup with the latter's consent some time between the years 1912 and 1917 and that it was in consequence of that partition that the defendants came into possession of the three portions of the house from which Har Sarup has sought to eject them. It is clear upon these facts that the defendants have been in possession of certain portions of the house in their own right and that they have openly asserted their title to that property and have denied the title of Har Sarup. This possession of the defendants undoubtedly commenced much more than 12 years before the date of the institution of Suit No. 2 of 1929. Har Sarup was never in possession of the portions of the house in dispute within 12 years of the date of the institution of his suit. The defendants were openly in possession of those portions and asserted their own title and denied his title. In these circumstances it must be held that Suit No. 2 of 1929 is barred by time. The defendants were openly in possession of those portions and asserted their own title and denied his title. In these circumstances it must be held that Suit No. 2 of 1929 is barred by time. In view of the above finding the next two pleas raised by the defendants in relation to Suit No. 2 of 1929 need not be considered. Having considered all the pleas raised by the defence in resisting Har Sarup's claim, we shall now proceed to state the effect of our findings on each one of the three suits with which we are concerned in these appeals. Suit No. 164 of 1928. First Appeal No. 501 of 1930. 44. Har Sarup's claim is based upon the admitted fact that his father Het Narain was adopted by Sipahi Singh and Anand Sarup was given away in adoption to Mt. Lachhmi Kuar and Lalta Prasad. This claim should have prevailed in respect of all properties belonging either to Sipahi Singh or to Het Narain, but for the reasons which we have mentioned above it cannot now succeed in respect of some of those properties. Of the six items of property which are the subject-matter of Suit No. 164 of 1928 Har Sarup's claim is barred by estoppel so far as the first three items are concerned, namely, the zamindari shares in villages Sikri, Kanakpur (I) and Kanakpur (II). Item 4 in dispute in this suit is a half share in resumed mulak land in village Nawabpura recorded in the khewat as holding No. 13 and comprising an area of 87 acre. The claim is confined to a half share only because Anand Sarup's name was recorded in the revenue papers in respect of this portion. The remaining half share in this item was recorded in the name of Har Sarup and that portion forms the subject-matter of the suit brought by Anand Sarup which has given rise to Appeal No. 373 of 1930. The circumstances which compelled Anand Sarup to bring his suit have already been set out above. Now, the question for consideration is whether the Nawabpura property comprising the two portions just referred to formed part of the estate of Sipahi Singh Upon the evidence before us we find that the answer must be in the affirmative. The circumstances which compelled Anand Sarup to bring his suit have already been set out above. Now, the question for consideration is whether the Nawabpura property comprising the two portions just referred to formed part of the estate of Sipahi Singh Upon the evidence before us we find that the answer must be in the affirmative. This property was one of the items in dispute in Suit 12 of 1921 brought by Harnam Sarup to which reference has already been made. In that suit Anand Sarup filed a written statement on 2nd March 1921 which 13 Ex. XX-2 on the record of First Appeal No. 373. In para. 4 of that written statement Anand Sarup alleged that the properties in dispute, with the exception of come which he mentioned at the close of his written statement, did not form part of the estate of Sipahi Singh. Amongst the exceptions we find a mention of the particular property which is now under consideration, namely, Milak Nawabpura, Again, in his own suit with reference to the portion which was recorded in the name of Har Sarup all that Anand Sarup alleged was that he had acquired a title to it by adverse possession. There was no suggestion that the property did not form part of Sipahi Singh's estate. Then we have the statement of Anand Sarup's counsel in his own suit which is No. 19-A on the record of First Appeal No. 373. The relevant portion of the statement runs as follows: Part of milak Nawabpura in dispute which stands in the name of Har Sarup was orally conveyed to the plaintiff by way of a family arrangement and from that very time he has been in proprietary and adverse possession thereof. 45. We have already held that it is not open to the defence to raise the plea of family arrangement and learned counsel for the defendants was unable to point out to us any evidence worth the name in support of the allegation that Anand Sarup was in adverse possession of the property. 45. We have already held that it is not open to the defence to raise the plea of family arrangement and learned counsel for the defendants was unable to point out to us any evidence worth the name in support of the allegation that Anand Sarup was in adverse possession of the property. Lastly we have the statement of Anand Sarup's counsel in suit No. 164 of 1928 to the following effect: As regards the property in Mouza Nawabpura it cannot be said with certainty as to whether or not it belonged to Munshi Sipahi Singh nor can it be said whether or not Lachhmi Kuar or her husband Lalta Prasad purchased any portion of this property. It is possible that the whole or a portion of the property might be of the time of Sipahi Singh. 46. It is evident from this statement that the defendants were unable to set up any definite case in respect of the Nawabpura property and virtually admitted that the said property formed part of the estate of Sipahi Singh. There is not an iota of evidence on the record to show that any portion of this property was ever purchased by Lachhmi Kuar. In this state of the evidence, the only possible conclusion is that the Nawabpura property formed part of the estate of Sipahi Singh and Har Sarup did not lose his title to this property by operation of law. Item 5 in dispute in suit No. 164 of 1928 is: Zamindari shares in village Nagla Kamal, entered in the Khewat as holding No. 3 resumed muafi land consisting of three items, (a) 42 sihams out of 84 sihams proprietary right, (b)5 4 sihams out of 108 sihams mortgagee right, (c) 168 sihams out of 360 sihams mortgagee right, free from mortgage. 47. All the three items were at the date of the suit recorded in the name of Anand Sarup. Now, with regard to item (a) the evidence is indisputable that it was property acquired by Het Narain. Khewat No. 3 of Nagla Kamal comprising 360 sihams was originally owned by one Mehdi Ali Khan who died leaving six sons and three daughters. Amongst his sons were Murtaza Husain Khan, Raza Husain Khan and Zaki Husain Khan and we have before us on the record of First Appeal No. 373 of 1930 a sale deed Ex. Khewat No. 3 of Nagla Kamal comprising 360 sihams was originally owned by one Mehdi Ali Khan who died leaving six sons and three daughters. Amongst his sons were Murtaza Husain Khan, Raza Husain Khan and Zaki Husain Khan and we have before us on the record of First Appeal No. 373 of 1930 a sale deed Ex. FF-2 executed by these three sons in favour of Het Narain on 18th December 1872. It is admitted that the property covered by this deed represents 60 out of 360 sihams of khewat No. 3. Then we have an extract from the khewat of Nagla Kamal for the year 1284 Fasli corresponding to 1876-77 (Ex. Q-2 of First Appeal No. 373) from which it appears that Het Narain was recorded as the owner of 84 sihams out of 360 sihams of khewat No. 3. The same document shows that Het Narain was recorded as a mortgagee of 108 sihams. With regard to the remaining 168 sihams the defendants have produced seven documents, all being sale deeds executed by some or other of the heirs of Mehdi Ali Khan. The earliest sale deed is dated 2nd March 1881. All these deeds, with the exception of the last one which is dated 28th October 1S89, were executed in favour of Lachhmi Kuar. The last one was executed in favour of Anand Sarup. It is significant to note that Lalta Prasad, the husband of Lachhmi Kuar who had risen to be the Peshkar of the Collectorate at Bijnore retired in 1880 and all the sale deeds referred to above are subsequent to that date. Now, Har Sarup's case with regard to the property covered by these deeds is that though it stands in the name of Lachhmi Kuar, yet she was only a benamidar for Het Narain. This is no more than an allegation unsupported by any evidence. A similar allegation was made in respect of the purchase of Indhanpur Hasanpur by Lachhmi Kuar and we have already given our reasons in detail for rejecting it. The same observations apply to the allegations in respect of the property covered by the above-mentioned sale deeds which stand in the name of Lachhmi Kuar. We have, therefore, no hesitation in rejecting Har Sarup's allegation in respect thereof. The same observations apply to the allegations in respect of the property covered by the above-mentioned sale deeds which stand in the name of Lachhmi Kuar. We have, therefore, no hesitation in rejecting Har Sarup's allegation in respect thereof. It may also be mentioned here that in all the sale deeds standing in the name of Lachhmi Kuar there is a recital that a part of the consideration was left with her for discharging a previous mortgage standing in favour of Het Narain dated 23rd March 1849. It was in consequence of this deed of mortgage that Het Narain was recorded as a mortgagee of 108 sihams. One of the items of Har Sarup's claim with reference to Khewat No. 3 of Nagla Kamal is "54 sihams out of 108 sihams-mortgagee right," With regard to this item the only question for consideration is whether the mortgage still subsists. As stated above, the mortgagors purported to discharge the mortgage by leaving a part of the consideration of the sale deeds executed in favour of Lachhmi Kuar with the vendee. There is, of course, no proof that the money so left with her by the mortgagors was paid by Lachhmi Kuar to Het Narain but the obvious fact remains that the mortgage in favour of Het Narain wag executed in the year 1849 and no claim was ever made by him in respect of that mortgage until his death in 1905. 79 years bad elapsed since the date of the mortgage when Suit No. 164 of 1928 was instituted. It is quite impossible in these circumstances to hold that the mortgage still subsisted. 48. All that now remains for consideration is item 6 in Suit No. 164 of 1928 which consists of a zamindari share in village Nagla Kamal entered in the khewat as holding No. 5. With regard to this item, it is admitted that there are two sale deeds standing exclusively in the name of Mt. Lachhmi Kuar, one dated 11th November 1880 and the other dated 24th August 1881. The learned counsel for Har Sarup had to concede that he could not press the claim with respect to this item with any show of force. Lachhmi Kuar, one dated 11th November 1880 and the other dated 24th August 1881. The learned counsel for Har Sarup had to concede that he could not press the claim with respect to this item with any show of force. The lower Court decreed Hat Sarup's claim in respect of this item on the ground that there was a family arrangement by which the whole property of the family was divided half and half between Het Narain and Lachhmi Kuar. We hare already rejected the defendants' plea of family arrangement as being barred by res judicata. The defendants have filed cross-objection with regard to this item. The result, therefore, is that we decree the claim of Har Sarup in respect of item 4, namely, a half share in resumed mulak land in Nawabpura, recorded in the khewat as holding No. 13 and comprising an area of.87 acres and also in respect of one of the three portions of item 5, namely, 42 sihams out of 84 sihams proprietary right. The defendants' cross-objection with respect to item 6 is allowed and Har Sarup's claim in respect thereof which has been decreed by the lower Court is dismissed. Appeal No. 501 of 1990, therefore, fails except in respect of the two items indicated above. The parties will pay and bear costs in proportion to their success. Suit No. 2 of 1929. 49. We have held above that this suit is barred by time and in consequence of that finding Appeal No. 500 of 1930 which arises out of this suit fails and is hereby dismissed with costs. Suit No. 14 of 1929. 50. This suit was brought by Anand Sarup in respect of a half share in Nawabpura property which stood recorded in the name of Har Sarup. The claim was based on the allegation that Anand Sarup had acquired a title to this property by adverse possession. We have already held that there is no evidence worth the name to support that allegation. Appeal No. 373 of 1930 which arises out of this suit, therefore, fails and is hereby dismissed with costs. The cross-objection in Appeal No. 373 of 1930 no having been pressed is dismissed with costs.