JUDGMENT (1.) THIS appeal arises out of the judgment and decree dated 18th July, 1974 passed by the learned Additional District Judge, Alipore in Title Appeal No. 635 of 1973 affirming the judgment and decree passed by the learned Munsif, 3rd Court, Alipore in Title Suit No. 369 of 1969. The defendant is the appellant in the instant appeal and the suit was instituted by one Kazi Golam Hussain, the predecessor-in-interest: of the present plaintiff respondents No. 1 to 4 against the defendant appellant and also impeding the perform respondents No. 5 to 7 for declaration of title to the suit property, recovery or possession of the same and for mesne profits and injunction. The case of the original plaintiff was inter alia that he was the son of Kamarunnessa brother's son. Kamarunnessa took settlement of the suit land from the Mutwalli of the wakf Estate of Hazi Amin Mistri and had raised structures on the suit land. The preformed defendants No. 2 and 3 were the present Mutwalli of the Wakf Estate. The said Kamarunnessa lived in one of the. two rooms and she had let out two other rooms to tenants. Kamarunnessa died on 5-8-61 leaving the plaintiff as her sole heir. The defendant No, 1 was a monthly tenant in respect of a room of Kamarunnessa. The plaintiff had brought a suit earlier being Title Suit No. 147 of 1964 in the First Court of the Munsif at Alipore for eviction of the defendant No. 1 on the ground of default. In the said suit, the defendant No. 1 denied relationship of landlord and tenant between the parties and he had also denied the plaintiff's right to the property on the score of succession to Kamarunnessa' estate. The plaintiff lost in that suit and thereafter preferred an appeal but the plaintiff ultimately with drew, the said appeal with the leave of the court. The defendant thereafter took a collusive patter from the present Mutwalli and got his name mutated in the records of the Calcutta Corporation. The defendant No. 1 also dispossessed the plaintiff on 16th October, 1966 from the entire suit property and accordingly, the said suit had to be instituted for recovery of possession from the defendant No. 1 upon declaration of title. The defendant No. 1 also dispossessed the plaintiff on 16th October, 1966 from the entire suit property and accordingly, the said suit had to be instituted for recovery of possession from the defendant No. 1 upon declaration of title. (2.) THE defendant No. 1 contested the suit by filling a written statement inter alia denying all the material allegations of the plaintiff. The defendant No. 1's case in short was that he, as Kamarunnessa' caretaker, lived in a room of the suit property and he was also a relation of the said Kamarunnessa. Kamarunnessa gave the suit property to the defendant No. 1 by an oral herbal and the defendant No. 1 also took a fresh settlement of the suit land by a registered patter dated 5th February, 1963. The defendant No. 1 further contended that the plaintiff was not an heir of Kamarunnessa and accordingly he had no title and interest in the suit property and his suit was also barred by limitation and on the principle of Resjudicata. The said suit was also barred under the provisions of Order 23 Rule 1 of the Code of Civil Procedure, The trial court on consideration of the materials of record and evidences adduced in the case, came to the finding that the plaintiff was sole heir of Kamarunnessa and the defendant failed to prove his case of acquisition of title through an oral herbal made in his favour by Kamarunnessa who was admittedly the original lessee. The trial Court was of the view that as the plaintiff Was the heir of Kamarunnessa, subsequent patter obtained by the defendant No. 1 from the Mutwalli was of no consequence and the purported lease not having been executed in accordance with Section 107 of the Transfer of Property Act, the same was also invalid in any event. Accordingly the suit was decreed by the trial Court allowing the plaintiffs to obtain recovery of khas possession of the suit properties by evicting the defendant No. 1 there from. (3.) THE defendant No. 1 being aggrieved by the said judgment and decree of the trial court preferred the said Title Appeal No. 635 of 1973. Accordingly the suit was decreed by the trial Court allowing the plaintiffs to obtain recovery of khas possession of the suit properties by evicting the defendant No. 1 there from. (3.) THE defendant No. 1 being aggrieved by the said judgment and decree of the trial court preferred the said Title Appeal No. 635 of 1973. The Court of Appeal below came to the finding that the case or oral herbal made out by the defendant No. 1 was not be believed and the registered patter was also a collusive document and in any case, the plaintiff being the sole heir of Kamarunnessa, the title of the plaintiff to the suit property could not have been defeated by the alleged patter. The Court of Appeal below also held that the tax bills and the rent receipts filed by the defendant -No. 1 showing payment of taxes to the Corporation of Calcutta by the defendant No. 1 were issued on the basis of the said registered patter, Ext. 'e' but the title to the property was not affected by the said patter. Accordingly, the Court of Appeal below upheld the finding made by the Trial Court to the effect that the plaintiff had right title and interest in the suit property as the sole heir of Kamarunnessa and the plaintiff was entitled to recover possession from the defendant No. 1. It appears that before the Court of Appeal below it was urged by the defendant No. 1 appellant that the decree for eviction was infectious because no decree was passed against Mutwalli landlords and it must be held that the Mutwalli landlords had been possessing the suit property through their tenants but the Court of Appeal below was of the view that the said Mutwalli landlords were not in possession through their alleged tenant defendant No. 1. The tenancy belonged to Kamarunnessa and on her death it devolved upon her legal heir viz. the plaintiff. Accordingly, the appeal was dismissed by the Court of appeal below and the judgment and decree of the Court of appeal below were affirmed. As aforesaid, the defendant No. 1 preferred the instant appeal against the said judgment and decree passed by the Court of Appeal below. (4.) MR. the plaintiff. Accordingly, the appeal was dismissed by the Court of appeal below and the judgment and decree of the Court of appeal below were affirmed. As aforesaid, the defendant No. 1 preferred the instant appeal against the said judgment and decree passed by the Court of Appeal below. (4.) MR. Dasgupta, the learned Counsel appearing for the defendant No. 1 appellant contended that admittedly the plaintiffs were out of possession from the suit property and prayed for a decree for recovery of possession of the suit property upon declaration of their title. Accordingly, the plaintiffs were bound to prove their legal title to get a decree for recovery of possession. He submitted that the suit was not instituted for recovery of possession on the basis of possessor title but recovery of possession was asked for on the basis of the alleged title to the property. Mr. Dasgupta contended that in such circumstances, the plaintiffs were bound to prove that the original plaintiff viz. predecessor in interest of the present plaintiffs had inherited the interest of Kamarunnessa who, according to the plaintiffs, was tenant in respect of the disputed property. Mr. Das Gupta contended that it was not lawfully proved that the original plaintiff was an heir of Kamarunnessa and as such he had inherited the interest of the said Kamarunnessa. Mr. Dasgupta drew the attention of this Court to the evidences adduced by the plaintiff to prove that the original plaintiff was the heir of Kamarunnessa, It appears that Kazi Golam Hussain who was the plaintiff was examined in support of the plaintiff's case. He stated that the suit property belonged to Kamarunnessa and Kazi Golam Hussain was the son of her brother's son and she" used to live with him all along at 16/1b, Tapsia Road. It appears that in cross examination he could not tell the name of the father of Kamarunnessa. He stated in cross-examination that Kazi Golam Unus was the brother of Kamarunnessa and he knew the said fact because Kamarunnessa was his Dadi (grand mother). One S k. AN Hussain was also examined on behalf of the plaintiff being P. W. 2 but he did not give any evidence about the relationship of Kamarunnessa and. the original plaintiff. The third witness examined on behalf of the plaintiff was one Sarbuddin Ahmed being P. W. 3. One S k. AN Hussain was also examined on behalf of the plaintiff being P. W. 2 but he did not give any evidence about the relationship of Kamarunnessa and. the original plaintiff. The third witness examined on behalf of the plaintiff was one Sarbuddin Ahmed being P. W. 3. He stated in his deposition that the plaintiff was his cousin (maternal brother). He also stated that the plaintiff was the son of Kamarunnessa's brother's son. The witness deposed that the plaintiffs got the suit property by inheritance from Kamarunnessa. It however, appears that in cross-examination, no suggestion was given to this witness that the plaintiff was not the son of Kamarunnessa's brother's son. The only suggestion which was given to this witness was that Kamarunnessa. was the aunt of the defendant. The other witness examined on behalf of the plaintiff was S k. Mehta being P. W. 5. He stated in his deposition that the plaintiff was the son of Kamarunnessa's brother's son, but in cross-examination he stated that he did not see the brother of Kamarunnessa and he did not know his name and he also did not know the name of brother's son. Referring to the said depositions, Mr. Dasgupta submitted that none of the witnesses were competent to say from their personal knowledge that the plaintiff was the son of the brother's son of Kamarunnessa and as such, an heir of the said Kamarunnessa. Mr. Dasgupta further submitted that Indian Evidence Act does not contain any express provision making evidence of general reputation admissible as proof of relationship. He submitted that the fact that merely somebody was known as the son or grandson of a particular person would not be sufficient to prove that the said person was son or grand-son of the person concerned. The fact of such relationship was required to be proved in accordance with the Indian Evidence Act. In this connection, Mr. Dasgupta referred to the provisions of section 50 of the Indian Evidence Act and submitted that under the said provisions, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, had special means of knowledge on the subject, would be a relevant fact when the Court was required to form an opinion as to the relationship of one person to another. Mr. Mr. Dasgupta submitted that in the instant case, no evidence was given as to the opinion, expressed by conduct, as to the existence of such relationship of any person. For the said contention, Mr. Dasgupta referred to a decision of the Privy Council made in the case of Rokkam Lakshmi Reddi Vs. Rokkam Venkata Reddi reported in A. I. R. 1937 P. C. page 201. In the said appeal, the question for decision was whether the plaintiffs had proved that they were the nearest reversionary of one Rokkam Nagi Reddi. In the said case, neither of the rival parties had put forward evidence of the kind described in Clauses 6 and 7 of Section 32 of the Indian Evidence Act i. e. statements in wills, horoscopes, family pedigrees etc. as to the existence of relationship between persons deceased. The Privy Council held in the said decision that barring Section 32 and some evidence in accordance with Section 50, there was no express provision in the Indian Evidence Act by which evidence of general reputation was admissible as proof of relationship. Mr. Dasgupta also drew the attention of the Court to the observation of the Privy Council made in the case of the said Rokkam Lakshmi Reddi at page 203 (left-hand column) where the Privy Council considered he evidence adduced in the said case. In the said case, Rokkam Nagi Reddi died at about 1900, at the age of 30 or thereabout and the Privy Council held that it was thus improbable that the birth of his grandfather was later than 1830. The Privy Council observed to the following effect : "for information about his father and uncle, to say nothing of his grandfather, it is difficult to repose much confidence in oral evidence of hearsay unsupported by other evidence to give it probability. The learned trial judge added to the difficulty of estimating the evidence by permitting witnesses to give their testimony as to matters which could not be within their own knowledge without first stating the Source of their information. Time, trouble and expense would have been saved had Cl. 5, S. 32,. Evidence Act, been properly applied and witnesses required to prove the statements relied upon with proper particularity and with due attention to the requirement that the persons making the statement had special means of knowledge. Time, trouble and expense would have been saved had Cl. 5, S. 32,. Evidence Act, been properly applied and witnesses required to prove the statements relied upon with proper particularity and with due attention to the requirement that the persons making the statement had special means of knowledge. In a number of cases witnesses were allowed simply to enunciate from the witness box the proposition which they desired to prove. Thus one witness aged 33 was allowed to say for the plaintiffs "appanna" was the father of "china- Venkatana" and another witness aged 45 for the defendants "i did hot see Lakshmi Reddi. Venkata Reddi is the father of Lakshmi Reddi. Veera Reddi is the father of Venkata Reddi". It cannot rightly be left to time or chance or cross examination to disclose whether a statement has any basis which could give it value or admissibility. " Relying on the aforesaid observation of the Privy Council, Mr. Dasgupta submitted that in the instant case, no evidence in accordance with the clause 5 of Section 32 of the Indian Evidence Act was given to prove the relationship of the plaintiffs to the said Kamarunnessa. Mr. Dasgupta also contended that there was no evidence about any opinion expressed by conduct or otherwise about such relationship in accordance with the provisions of Section 50 of the Indian Evidence Act. Mr. Dasgupta submitted that the plaintiffs miserably failed to prove that they were the heirs of Kamarunnessa and the evidence adduced on behalf of the plaintiffs were totally inadmissible so far as relationship between the plaintiffs and the said Kamarunnessa was concerned. Mr. Dasgupta also contented that the original plaintiff had also instituted a previous suit for eviction against the present defendant No. 1 being Title Suit No. 147 of 1964 and in the said suit there was an issue to the effect that there was no relationship of landlord and tenant between the parties. The said issue was decided by the Court and it was held that the plaintiff had failed to prove that he was the heir of Kamarunnessa. The plaintiff preferred an appeal against the judgment and decree dismissing the said suit, but with the leave of the Court, the said appeal was withdrawn. The said issue was decided by the Court and it was held that the plaintiff had failed to prove that he was the heir of Kamarunnessa. The plaintiff preferred an appeal against the judgment and decree dismissing the said suit, but with the leave of the Court, the said appeal was withdrawn. There was no express leave given by the Court to Tile a fresh suit on the same cause of action and the aforesaid finding made by the trial Court that the plaintiff had failed to prove that he was the heir of Kamarunnessa was also not set aside by the court of appeal below. Accordingly the plaintiff was precluded in the instant suit from claiming any title to the suit property on the basis of his being Their of the said Kamarunnessa. (5.) MR. Mukherjee, the learned Counsel appearing for the plaintiffs respondents, contended that one of the plaintiffs and some of his close relations had specifically given evidence that the original plaintiff was an heir of Kamarunnessa and in the facts and circumstances of the case, such evidences were quite admissible in law. He submitted that Section 50 was an exceptional way of proving relationship on the basis of opinion expressed as to relationship by person who had special means of knowledge on such relationship but a party was entitled to prove such relationship even independent of Section 50. He submitted that the decision of the Privy Council was distinguishable in the facts of the present case. He further submitted that in the previous suit, the said issue as to the relationship of landlord and tenant could not operate as Resjudicata or a bar under the provisions of Order 23 of the Code of Civil Procedure. He submitted that the previous suit was not a suit on title but a suit on the termination of alleged contract between landlord and tenant. He also submitted that the plaint in the said suit was not an exhibit in the instant case and cause of action of the earlier suit arose on termination of tenancy by notice to quit. Accordingly, the court below was justified in holding that the finding in the said earlier suit that the plaintiff had failed to prove that he was an heir of Kamarunnessa did not operate as Resjudicata or as a bar under the provisions of Order 23 of the C. P. Code. Accordingly, the court below was justified in holding that the finding in the said earlier suit that the plaintiff had failed to prove that he was an heir of Kamarunnessa did not operate as Resjudicata or as a bar under the provisions of Order 23 of the C. P. Code. For this contention, Mr. Mukherjee referred to the decision of the Supreme Court made in the case of Vallabh Das v. Madanlal reported in A. I. R. 1970 S. C. page 987. It was held in the said decision that the subject matter in Order 23, Rule 1 C. P. Code meant the bundle of facts which had to be proved in order to entitle the plaintiff to the relief claimed by him. Where the relief claimed in the second suit were not the same as the cause of action and the relief claimed in the first suit, the second suit could not be held to have been brought in respect of the same subject matter. Mere identity of some of the issues in two suits did not bring about an identity of the subject matter in the two suits. The first suit was instituted to enforce the right to partition and separate possession and the second suit was instituted to recover possession of the suit properties from a trespasser on the basis of title. The Supreme Court held in the said decision that the subject matter in the two suits was not the same although the factum and validity of adoption of the plaintiff came up for decision in both the said suits. Relying on the said decision, Mr. Mukherjee contended that although the basis of title to the property of the plaintiff in the said suit by virtue of inheritance from Kamarunnessa came up for hearing in the said eviction proceeding, but the two suits were entirely different and as such, the decisions of the Courts below that the finding made in the earlier suit did not operate as Resjudicata or as a bar under Order 23, were quite legal. (6.) AFTER considering the respective submissions made by the learned Counsels appearing for the parties, I am of the view that the plaintiffs in order to succeed in the instant suit are required to prove their title to the property and the plaintiffs have set up their title on the basis of in heritance of the interest of Kamarunnessa. In my view, Mr. Dasgupta was justified in contending that the plaintiffs failed to prove that the plaintiffs were the heirs of the said Kamarunnessa. The decision made by the Privy Council in the case of Rokkam Lakshmi Reddi, Rokkam Venkata Reddi squarely applies in the facts and circumstances of the instant case and the nature of the evidence adduced in the said case and not accepted by the Privy Council are also quite similar. In the absence of any express provision in the Indian Evidence Act making evidence of general reputation admissible as proof of relationship, the evidences adduced on behalf of the plaintiffs of such general reputation cannot be accepted. Unfortunately, the plaintiffs did not prove such relationship in accordance with the provisions of Section 32 (Clause 5) of the Indian Evidence Act and Mr. Dasgupta, is justified in his submission that existence of such relationship was also not proved in accordance with Section 50 of the Evidence act in the instant case. Accordingly it must be held that the plaintiffs failed to prove their title to the property on the basis of inheritance from Kamarunnessa. No other title has been established by the plaintiffs and as such they must fail in the suit for declaration of their title to the suit property. In the aforesaid facts the other contentions noised in the instant appeal are not required to be decided. The appeal, therefore, succeeds and the judgments and decrees passed by the Courts are set aside and the suit is dismissed. But I make no order as to costs. Appeal allowed. No costs.