JUDGMENT :- The plaintiffs in O.S. No.394 of 1983 on the file of the Subordinate Judge, Palghat are the appellants. They filed the above suit for partition. The suit was dismissed by the trial Court. Hence they filed an appeal in A.S. No.71 of 1987 before the District Judge, Palghat, wherein also they did not succeed. 2. The above suit was filed by the appellants on the averments that they and respondents 1 to 13 (defendants 1 to 13) are the members of Hindu Ezhava community following Hindu Mitakshara Law. One Pangi, maternal grandfather of the appellants, one Karuppan, father of respondents 1 to 7 (defendants 1 to 7) and father-in-law of 8th respondent (Defendant No.8) and grandfather of respondents 9 to 13 (defendants 9 to 13) and the first respondent (first defendant) executed Ext. B 5 Verumpattam Chit in the year 1126 M.E. in favour of the jenmies of the land, viz. respondents 14 to 19 and the executants had been in possession of the suit property Among the three executants of Ext. B-5, Karuppan died in the year 1964. Therefore his one third right has devolved upon his children, viz. respondents 1 to 7 and another son Velayudhan, whose wife is 8th respondent and whose children are respondents 9 to 13. Pangi assigned his one third right in favour of the appellants under Ext. A-7 dated 8-6-1966. Hence the suit is filed for one third share of the appellants. 3. The suit was resisted by the contesting respondents, 14 to 19 jenmies, that in respect of the plaint schedule property, a suit in O.S. No.248 of 1971 was filed by the 7th defendant for partition before the Munsiff Court, Palghat. The suit was decreed in part as per Ext. A-4 judgment, where the first defendant alone was held to be the tenant and therefore, an appeal in A.S. No.142 of 1975 was filed before the Sub Court, Palghat, wherein it was found that Pangi, Karuppan and the first defendant are the tenants. Then a second appeal was filed before this Court in S.A. No.840 of 1976. This Court allowed the appeal, upholding the judgment of the trial Court that the first respondent alone has got the Verumpattom tenancy right. Ext. B-31 is the certified copy of the Judgment in S.A. No.840 of 1976. Therefore, in view of Ext. Then a second appeal was filed before this Court in S.A. No.840 of 1976. This Court allowed the appeal, upholding the judgment of the trial Court that the first respondent alone has got the Verumpattom tenancy right. Ext. B-31 is the certified copy of the Judgment in S.A. No.840 of 1976. Therefore, in view of Ext. B-31 judgment of this Court, the appellants are not entitled to ask for partition and further a petition filed before the Land Tribunal, Palghat, for resumption of a portion of the property was allowed in favour of the land owners in O.A. 502 of 1965 and that also substantiates the contention of the respondents that the appellants' assignor was not in joint possession of the suit property as a tenant. Ext. B-22 is the certified copy of the order in O.A. No.502 of 1965 and further the first respondent has been in continuous possession from the date of Ext. B-5. Thus the judgment in the earlier suit O.S. No.248 of 1971 will operate as res judicata as against the claim of the present appellants and further the appellants' claim through Pangi is barred by estoppel, waiver and acquiescence by Ext. B-4 partition deed dated 28-3-1970. 4. Yet another submission advanced on the side of the appellants would be that the appellants were not brought as respondents in S.A. No.840 of 1976 on the file of this Court, though they were parties in A.S. No.142 of 1975 and therefore, the decree in the second appeal shall not operate as res judicata against them and as it is, there is a valid decree in A.S. No. of 1975 as per which their assignor Pangi is also of the tenants in Ext. B-5. Therefore, Ext. A-7 in their favour is a valid document. In short, as per the above contention, the effect of the decrees in O.S. No.248/1971 and A.S. No.142/1975 (Exts. A-4 and A-6) have to be decided in this appeal. Further, it was contended on behalf of the appellants that since they were not parties to Ext. B-22 proceedings, they are not bound by the said order and the possession of the first respondent is on behalf of them also. 5. One more important contention of the contesting respondents, viz. A-4 and A-6) have to be decided in this appeal. Further, it was contended on behalf of the appellants that since they were not parties to Ext. B-22 proceedings, they are not bound by the said order and the possession of the first respondent is on behalf of them also. 5. One more important contention of the contesting respondents, viz. the land owners, would be that the first respondent is none other than the father of the appellants and with his collusion, the suit has come up and the first respondent alone was the tenant and therefore the appellants have no locus standi to file the suit and they are bound by Ext. B-22 order. 6. In view of the above rival contentions of both the sides, viz. the appellants and the contesting respondents, the position of law in respect of their contentions can be examined hereunder : 7. Section 11 of the C.P.C. reads as follows :- "Res Judicata :- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." Order 41 rules 4 and 33 read as follows:- "One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all. -Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be." ................................... Power of Court of Appeal.-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have filed against such decrees : 8. Now, the decisions in respect of the above provisions can be looked into. The Privy Council in (Md. Khaleef v. Les Tanneries) AIR 1926 P.C. 34 has held thus :- "A suit was filed against A, and B as agent of A. The trial Judge (the original side of the High Court) passed a decree against A but by his decree dismissed the suit against B but decreed that B should pay to the plaintiffs taxed costs and interest thereon. The plaintiffs did not appeal to the High Court against the decree of the trial Judge dismissing the suit against B. A and B jointly appealed to the High Court against the decree which had been made against them. On that appeal the High Court found that A was not liable to pay anything in respect of one of the suit contracts and modified the decree in respect of their liability under the other suit contract with certain costs and dismissed the suit against A and B. Against that decree of the High Court the plaintiffs appealed to the Privy Council. Held that the appeal to his Majesty in Council, in so far as B was concerned was in effect, an appeal direct to His Majesty in Council from the decree of the trial Judge, which is not allowable under the Code of Civil Procedure, or under the Letters Patent of the High Court, and that O.41, Rule 33 is not intended to apply to such an appeal and accordingly the appeal so far as B was concerned should be dismissed." In Mt. Munni v.Tirloki Nath, AIR 1931 PC 114, the Court has held thus :- "If a plaintiff cannot get at his right without trying and deciding a case between codefendants, the Court will try and decide that case and the codefendants will be bound; but if the relief given to the plaintiff does not require or involve a decision of any case between codefendants, the codefendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains. In such a case therefore three conclusions are requisite: (1) there must be conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims and (3) the question between the defendants must have been finally decided." In Swaminatha v. Gopalaswami, AIR 1937 Madras 741, the High Court of Madras held as follows :- "In a partition suit the defendants represented their sub-families but their sons were formally brought on record. Their existence was not recognised either in the whole conduct of the suit or in the decree apportioning the shares to each branch. The sons were not impleaded as parties to the appeal against such decree. Held that though the appellate decree would not directly affect their sons as they were not parties to it, the result of any diminution of their father's assets would ipso facto be to diminish the extent of their own assets and as such they would be prejudiced by the modifications made behind their back in the decree under appeal. Such sons therefore being "interested in the result of the appeal" could be added as parties to the appeal under O.41, R.20 Civil P.C. Even a person against whom the right of appeal has become barred can be added as a respondent under O.41, R. 20, Civil P.C." In Gouri Amma v. Gopalakrishna Panicker, 1966 Ker LT 715 this Court held as follows :- "The effect of O.41, Rr.4 and 33 will not enable the appellate Court to pass a decree to the prejudice of a person who has not been given a hearing. If the second appellate Court were to decree the suit against the defendants who had filed appeal in the lower appellate Court who are alone the respondents in the Second Appeal, there will be two contradictory decrees in the same litigation with reference to the same subject matter. It is clear that a Court should not be called upon to make two inconsistent decrees about the same property and in order to avoid conflicting decrees, the Court has no other alternative but to dismiss the appeal as a whole." In Gopala Filial v. Chellappan Pilial, 1966 Ker LT 1154 : (AIR 1966 Ker 317), this Court has held thus (Para 7) :- "In order to find out who all should be parties in an appeal from a decree which has been passed applying R.4 of Order 41, we must look not only to the appellate decree and those mentioned in that decree as parties but also see the effect of Rule 4 of Order 41. It follows that all the defendants in whose favour a decree has been passed in the appellate Court, are necessary parties and the appeal is not maintainable as the necessary parties are not on the party array." The Patna High Court in a case reported in Santan Narain v. Saran Narain, AIR 1959 Patna 331 has held thus :- "A co-sharer has got a right to seek fresh partition if for some reason the previous decree for partition becomes unenforceable so that there has not been actually breaking up of the title and possession of the co-sharer by actual delivery to each of them to him by that decree. This principle follows from the fundamental concept of joint ownership and possession giving each joint owner a right to transfer from this joint ownership and possession into several and independent ownership and possession." This Court in Parthasarathi Iyer v. Kesavan Nair, 1962 Ker LJ 169 has held as follows:- "It is well established, that the suit continues till the passing of the final decree, and that an application for a final decree is not governed by Article 181 of the Limitation Act. Notwithstanding a preliminary decree for partition so long as the property continues to be jointly held by the co-sharers, it is competent for them to bring a suit for declaration of their right and for partition in case their right to partition is denied or challenged." In R.K. Sambandam Chettiar v. Marudambal, (1986) 1 Mad LJ 340, the Madras High Court has held as follows :- "Both the Courts below came to the conclusion that specific shares were not allotted to M and the other defendant as per the previous final decree. The Madras High Court in Kizhakkiniyakath Kunchi Koyamutty Naha Naji v. Veeran, (1942) 1 Mad LJ 219 : AIR 1942 Madras 364 has held that where a partition decree entitled the defendant to be put in possession of the properties allotted to him on payment of the necessary court-fee, the defendant was not obliged to pay the court-fee and seek possession in proceedings in execution of the partition decree and could file a separate suit for possession to which Section 47, Civil Procedure Code was no bar. Therefore a further suit is not barred." The Supreme Court in Iftikhar Ahmed v. Syed Meharban Ali, AIR 1974 SC 749 has held thus (Para 9) :- "It is now settled that for a judgment to operate as res judicata between or among codefendants it is necessary to establish that (1) there was a conflict of interest between the codefendants (2) that it was necessary to decide the conflict in order to give relief which the plaintiff claimed; and (3) that the Court actually decided the question. If thus a previous decision can operate as res judicata between the codefendants under certain conditions, there is no reason why a previous decision should not operate as res judicata between the co-plaintiffs if the same conditions are mutatis mutandis satisfied." The Supreme Court in Harihar Prasad v. Balmiki Prasad, AIR 1975 SC 733 has held thus (Para 36) :- "Where each one of the plaintiffs could have filed a suit for his share, mere fact that all of them joined together as plaintiffs and filed one suit does not mean that if for one reason or other the suit of one of them fails or abates the suit of the other fails or abates. The decree is in substance the combination of several decrees in favour of several plaintiffs. The decree is in substance the combination of several decrees in favour of several plaintiffs. If in an appeal against the decree one of the plaintiffs is not added as a respondent, it only means that the decree in his favour cannot be set aside or modified even if the appeal succeeds against other plaintiffs in respect of their interest. There would in that case be no conflict between the decrees as the decree is a combination of many decrees." In yet another case reported in Pawan Kumar Gupta v. Rochiram Nagdeo, AIR 1999 SC 1823, the Supreme Court has held thus (Para 19) :- "If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res Judicata in the subsequent suit." 9. It was also one of the contentions of the appellants as noticed above that Ext. B-5 was executed by three persons. On the other hand, it is the contention of the contesting respondents that Ext. B-5 is in favour of the first respondent. In this respect, Section 92 of the Indian Evidence Act and also some of the principles laid down on this section were also placed before me and arguments were advanced. Section 92 of the Indian Evidence Act and its proviso No.6 read as follows :- "Exclusion of evidence of oral agreement.- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms : ................ Proviso (6) Any fact may be proved which shows in what manner the language of a document is related to existing facts." In Arumoorthi v. S.E. Committee, AIR 1962 Madras 360 the Madras High Court held thus (Para 5) :- "Where there is no dispute that the actual contract between the parties was the one recorded in the deed, it will not be thereafter open to the parties to let in oral evidence to prove that its terms were different from what is contained in the deed. Section 92 precludes such a course. When it is admitted that the actual contract between the parties has been reduced to writing, oral evidence cannot be given to show that its terms were different from those found in the deed. Section 91 of the Evidence Act forbids such a course. There is material difference between an attempt to show that the terms of a contract were different from those recorded in a deed, and an attempt to show that the contract as mentioned in the deed was not the real contract between the parties but it was something different. It is the former that is hit by Sec.91 of the Evidence Act but the latter is not so hit. Thus where the contention of the plaintiff is that the actual contract itself was different, and that for certain reasons it was made to appear in the document that it was a rectification deed. Section 91 does not preclude the plaintiff from proving that the real contract was different from what is found in the deed." In yet another decision reported in Gopaldoss Family Trust Estate v. Michaelswami, (1964) 2 Mad LJ 242, the Madras High Court has held thus :- "Where a lease deed is in favour of X and Y. Section 92 of the Evidence Act, 1872, is clearly a bar to the plea by X that Y is merely a surety. 10. Regarding the principle of adverse possession under Article 65 of the Limitation Act. 1963 some decisions were placed before me. Article 65 of the Limitation Act reads as follows :- "For possession of immovable property or any interest therein based on title. 10. Regarding the principle of adverse possession under Article 65 of the Limitation Act. 1963 some decisions were placed before me. Article 65 of the Limitation Act reads as follows :- "For possession of immovable property or any interest therein based on title. Twelve years When the possession of thes defendant becomes adverse to the plaintiff This Court in Kunjamma Cicily v. Sulaikha Beevi, 1968 Ker LT 779 : (AIR 1969 Ker 293) (FB) has held thus (Para 11) :- "One co-heir in possession cannot render his possession adverse to the other co-heirs not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. In order to establish adverse possession on the part of one coheir as against another it is not sufficient to show that one of them is in sole possession and enjoyment of the profits of the property. Ouster of the non-possessing co-heir by the co-heir in possession, who claims his possession to be adverse, should be made out. For this there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one coheir to the knowledge of the other, the burden of making out such ouster being on the person claiming to displace the lawful title of the co-heir by his adverse possession." In yet another decision reported in Paru v. Chiruthai, 1985 Ker LT 563 this Court has held thus :- "Since a co-sharer in possession is a trustee for a co-sharer not in possession, there can be no question of any adverse possession, by any co-owner in possession. Mere non-participation in the profits or nonpayment of rent by themselves cannot amount to ouster." In yet another case reported in Karattil Ammad Koya v. Karattil Ayammad, (1990) 2 Ker LJ 802 this Court has held thus :- "The law relating to adverse possession, as between co-owners, is now well settled and it is more rigorous than in the case of others. That is because one co-owner is rather in the position of a fiduciary capacity akin to that of a trustee, so far as other co-owners are concerned. Exclusive possession of the claimant or absence of possession of others and absence of receipt of rents and profits even for a long period by itself may not be sufficient. That is because until partition the co-owner in. Exclusive possession of the claimant or absence of possession of others and absence of receipt of rents and profits even for a long period by itself may not be sufficient. That is because until partition the co-owner in. possession will be deemed in law to possess on behalf of the other co-owners also." 11. Regarding the recitals in Ext. B-5 document as noted above, whether it was executed by three persons or by one person and the other two stood as sureties or attestors, arguments were advanced. One of the important principles relating to the construction of a document laid down by this Court in 1963 Ker LT 153 Souriyar v. Lekshmikutty Amma is as follows :- "The document is styled as a pattachit, but no significance can be given to this nomenclature if the terms of the document clearly show that no lease is created. In construing such documents the substance of the transaction must be considered and not merely the nomenclature used by the parties." 12. On the above proposition of law, let me first take up the case of both the parties set forth on the footings of Order 41, Rules 4 and 33 CPC and also Section 11 of CPC. In examining the above aspect, necessarily findings have to be recorded on estoppel and waiver pointed out from the conduct of the appellants. The suit in O.S. No.248 of 1971 was filed by the 7th respondent for partition in which the trial Court found that though Ext. B-5 Verumpattom Chit was executed by three persons, tenancy was only in favour of the first respondent and thereafter in the appeal in A.S. No.142 of 1975, the finding recorded in this aspect was that the tenancy was in favour of three persons and this Court in S.A. No.840 of 1976 found that the tenancy was only in favour of the first respondent, that is to say, the judgment of the trial Court was restored. Now, it is contended that the appeal preferred by the 7th respondent before the Supreme Court was compromised. In the second appeal before this Court, the judgment copy of which is marked as Ext. B31, admittedly these appellants were not brought as parties. The Supreme Court later on in Iftikhar Ahmed's case, AIR 1974 SC 749 has laid down the same principle of the Privy Council in Mt. In the second appeal before this Court, the judgment copy of which is marked as Ext. B31, admittedly these appellants were not brought as parties. The Supreme Court later on in Iftikhar Ahmed's case, AIR 1974 SC 749 has laid down the same principle of the Privy Council in Mt. Munni's case, AIR 1931 PC 114 that even as between the defendants, there could be res judicata provided the three conclusions stated thereon have been recorded. In the present case on hand, the conflicts as between the contesting respondents and the appellants have been decided by the lower appellate Court in the judgment in A.S. No.142 of 1975, the copy of which is marked as Ext.A-5. So it could be rightly said that the judgment of the lower appellate Court shall operate as res-judicata as against the case of the contesting respondents herein. However, such a finding cannot be recorded right now because a second appeal was filed before this Court, There admittedly, the appellants were not brought on record. Therefore, the trend of the argument advanced on the side of the appellants would be that in view of the provisions in Rules 4 and 33 of Order, 41 CPC and also the principle laid down in Swaminatha's case, AIR 1937 Madras 741, Gouri Amma's case, 1966 Ker LT 715 and in Hari Prasad's case, AIR 1975 SC 732 when the appellants were not parties to the second appeal, the decree of this Court in the second appeal, shall not be an operative one against them. In other words, it is non est in the eye of law. When that be the position, now the only decree in so far as this case is concerned, is the decree of the lower appellate Court and that would operate as res judicata against the contesting respondents. In other words, according to the appellants, as per Order 41 Rule 33 and also as per the principle of law stated supra, all the parties in the lower Court have to be added as parties in the appellate Court. In other words, according to the appellants, as per Order 41 Rule 33 and also as per the principle of law stated supra, all the parties in the lower Court have to be added as parties in the appellate Court. And when an interested party in whose favour a decree is obtained in the trial Court or in the lower appellate Court is not added as a party either in the lower appellate Court or in the High Court, then the decree obtained in the lower appellate Court or in the second appeal wherein he is not a party, shall not bind him and in that case the decree obtained in his favour either in the trial Court or in the lower appellate Court will stand. As noted above, since the decree is in their favour in the lower appellate Court and since the decree was passed by this Court in the second appeal without them in the party array the decree of this Court in the second appeal will not bind them and the decree of the lower appellate Court is binding them and the respondents. The principle of res judicata is set forth against the appellants also by the contesting respondents on the basis of the judgment in the second appeal No.840 of 1976. Therefore, the point to be decided is whether the appellants are necessary parties or not in the second appeal. If it is found that they are the necessary parties then the decree of this Court becomes inoperative against them and the appellants and the contesting respondents are bound by the decree of the lower appellate Court. In case it is found that the appellants are not necessary parties in the second appeal, they are bound by the judgment in the second appeal and in that situation the judgment in the second appeal will operate as res-judicata. 13. In examining this aspect, the documents of the Land Tribunal are necessary, where, no doubt, the principle of estoppel or waiver picked out from the conduct of the appellants has also to be considered. Ext. A-31 judgment was delivered by this Court on 20-11-1979. In deciding resjudicata, a finding has also to be recorded in respect of the contents of Ext. B-5, viz. whether three persons were the tenants or the first respondent alone was the tenant therein. Ext. A-31 judgment was delivered by this Court on 20-11-1979. In deciding resjudicata, a finding has also to be recorded in respect of the contents of Ext. B-5, viz. whether three persons were the tenants or the first respondent alone was the tenant therein. In this regard, the learned counsel appearing for the appellants drew my attention to the provisions in Section 92 of the Indian Evidence Act and also the principle laid down by the Madras High Court in Arumoorthi's case, AIR 1962 Madras 360, Gopaldoss Family Trust Estate's case, (1964) 2 Mad LJ 242 and also Souriyar's case, 1962 Ker LT 153. 14. Ext. B-5 is of the year 1126 M.E. (1951). Admittedly, Pangi, from whom the appellants have taken Ext. A-7 assignment, was residing at Mathoor, 15 miles away from the suit property and Karuppan, the other executant was residing at Thiruvalathur which is also 10 miles away from the suit property. Therefore, near the suit property, only the first respondent was residing. The first respondent is none other than the father of the appellants. Before filing the suit in O.S. 248 of 1971, the jenmies filed a petition for resumption as A.502 of 1965 before the Land Tribunal, Palghat, as against the first respondent. It is not at all the contention of the first respondent in that Land Tribunal that along with him two other persons were also tenants, viz. Pangi the assignor of Ext. A-7 and Karuppan. In that proceeding, originally an order was passed in favour of the jenmies, viz. the contesting respondents for resumption under Ext.B-22 dated 17-4-1965. Thereafter, an appeal was taken questioning Ext. B-22 order and the certified copy of the judgment of the appellate authority in A.A. No.86 of 1970 on the file of the Appellate Authority, Trichur, dated 11-1-1971 is marked as Ext. B-23. While the appeal was pending, it seems Ext. A-7 assignment has been taken by the appellants on 8-6-1966. On taking Ext. A-7, they have moved an application in I.A. No.1452 of 1966 before the Land Tribunal, Palghat, in O.A. No.502 of 1965 to implead them as parties in that proceeding. However, that I.A. was dismissed and Ext. B-1 is the copy of the order in the I.A. and it appears that no appeal or revision was filed by the appellants questioning Ext. B-1. However, that I.A. was dismissed and Ext. B-1 is the copy of the order in the I.A. and it appears that no appeal or revision was filed by the appellants questioning Ext. B-1. Thereafter, in the same proceeding, in view of the remand, a revised order was passed by the Land Tribunal on 22-4-1981. The certified copy of the order is marked as Ext.B-35 and the appeal filed against Ext.B-35 was also dismissed as is seen in Ext.B-38 dated 30-7-1985. It appears that after the remand, another application in LA. No.564 of 1981 was filed by the appellants in A. No.502 of 1965 to get them impleaded and that was also dismissed. The certified copy of the same is Ext. B-36 dated 17-2-1982. All these above orders and judgments are so clear that resumption has already been passed in respect of the property and the Land Tribunal's order now has become final. 15. The evidence of P.W.1, the second plaintiff, would go to show that he and his father the first respondent engaged the same Advocate and it is also deposed by P.W.1 that the first respondent, his father, was not aware of Ext. A-7. In this context, it is also pertinent to look into the other admission of P.W.1 that Ext. A-7 document was taken from the Sub Registrar's Office by his father the first respondent. So these circumstances are so clear as pointed out by the learned counsel for the contesting respondents that in collusion with the first respondent, the suit has been filed. Since no challenge is set forth by the appellants in respect of the order of the Land Tribunal, as pointed out above, they are estopped in questioning the proceedings of the Land Tribunal, particularly, when the final order is against the father, the first respondent. One more important thing deposed by P.W.1 as noted above is that both the appellants and their father engaged the same counsel in the suit. The trial Court has examined this aspect in paragraph No.22 of the judgment, which was affirmed by the lower Appellate Court. Another partition was entered into between the appellants and defendants 1 to 13 dated 28-3-1970 under Ext. B-4 when the resumption proceeding after remand was pending. Regarding Ext. B-4, an examination is made by the trial Court in Paragraph 23 of the judgment. A reading of Ext. Another partition was entered into between the appellants and defendants 1 to 13 dated 28-3-1970 under Ext. B-4 when the resumption proceeding after remand was pending. Regarding Ext. B-4, an examination is made by the trial Court in Paragraph 23 of the judgment. A reading of Ext. B-4 would go to show that nothing has been mentioned there about Ext. A-7. In other words, no allotment has been made in pursuance of Ext. A-7 in favour of the appellants. What is found in Ext. B-4 is with reference to the rent of the property and also the apportionment of the rent among the sharers. That is also a clinching circumstance to show that the first respondent alone was the tenant under Ext. B-5. In these above circumstances, particularly, from the documentary and the oral evidence, it can be rightly held that construction of Ext. B-5 document, though it is said to have been executed by three persons, can be challenged under proviso (6) of Section 92 of the Indian Evidence Act and the principle stated supra. Accordingly the contesting respondents have challenged and they have succeeded. In this view of the matter, it could be rightly held that the judgment of this Court certainly shall operate as res judicata as against the appellants. And it is accordingly recorded. As I have pointed out above, the res judicata in this case has been decided taking into account of the law, the conduct of the parties and the circumstances of the case, I have discussed above. 16. One more submission advanced by the learned counsel for the appellants would be with reference to the decree in O.S. No.236 of 1955 on the file of the Munsiff Court, Palghat, the copy of the judgment is marked as Ext.A-3 dated 18-6-1964, it was a suit filed by the jenmies for recovery of arrears of rent and recovery of the property. In that suit, it has been alleged by the jenmies that Karuppan, the first respondent, Kandankutty and Pangi were the tenants. By that judgment the contesting respondents are now estopped to say that the first respondent alone was the tenant. As against the above said argument, the reply of the learned counsel for the contesting respondents would be that the arrears for the years 1954 and 1955 were claimed. By that judgment the contesting respondents are now estopped to say that the first respondent alone was the tenant. As against the above said argument, the reply of the learned counsel for the contesting respondents would be that the arrears for the years 1954 and 1955 were claimed. In the joint written statement filed in that suit (the copy of which is marked as Ext.B-7), the first respondent herein, Karuppan and Pangi had stated that Karuppan and Pangi did not cultivate that land for that period. However, the suit was decreed for arrears of rent against all the three persons and nowhere Ext. B-7 they have stated that all the three are the tenants of the land. 17. When I examined the above submissions of both the sides, it is clear that what Karuppan and Pangi had stated in Ext. B-7 is that they did not cultivate the land. That implies that they have no tenancy right along with the first respondent herein. What is the subject matter in that suit was only in respect of the arrears of rent for 1954 and 1955 and even if it is taken that Karuppan and Pangi were cultivating the land with the first respondent for that period, it could not be concluded that they were the co-tenants along with the first respondent under Ext.B-5. Soon after the pronouncement of Ext. A-3 judgment on 18-6-1964, the proceedings in O.A. 502/65 had commenced. There, as noticed above, the tenancy in favour of the first respondent alone has been decided. In this view of the matter, I do not think that Ext. A-3 judgment will render any assistance to the case of the appellants and it could not be said that the contesting respondents are estopped to put the present claim that the first respondent alone is the tenant in spite of Ext.A-3 judgment. 18. Yet another submission is regarding adverse possession. Regarding the question of adverse possession, the contention of the appellants would be that though the first respondent was in possession of the property, it has to be presumed that his possession is on behalf of other tenants also, viz. Pangi and Karuppan. But Pangi and Karuppan are out of possession as I have found above. No doubt, among the co-sharers the plea of adverse possession could not be put forth. Pangi and Karuppan. But Pangi and Karuppan are out of possession as I have found above. No doubt, among the co-sharers the plea of adverse possession could not be put forth. On the other hand, ouster can be put forth, for which also I have referred the settled principle of law. In the instant case, only the first respondent had been in possession of the property and no claim for possession had been set forth by Karuppan and Pangi, the assignor of Ext. A-7 at any point of time. After taking of Ext. A-7, as pointed out above, they moved the Tribunal for impleading and there they have failed and the present suit has been filed only in the year 1983. Hence there is nothing on record in support of adverse possession. 19. No doubt, a second suit, in some circumstances, shall lie in view of the principle stated supra. But in the instant case since the judgment of the former suit operates as res judicata, I need not go into the question of maintainability of the suit. 20. On account of the foregoing reasons, particularly, the part played by the first respondent in instigating his children, the appellants, in filing the suit, the truth has come out that he alone is the tenant under Ext. B-5 and against whom an order of resumption has already been passed and it has been implemented also. In that view of the matter, I do not find any reason to disturb the concurrent findings of both the Courts below. In the result, the appeal is dismissed. In the circumstances of the case, there will be no order as to costs. Appeal dismissed.