Judgment M.M.Kumar, J. 1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of fact recorded by both the courts below holding that the predecessor in interest of the plaintiff-appellant Jagir Singh @ Jagiru had succeeded to l/3rd share of the suit land directly from his father Basant Singh and to that extent the land was ancestral in his hand. It is appropriate to mention that Jagir Singh @ Jagiru had other two brothers. The land left by them was held to be self-acquired property of Jagiru. Both the courts below have refused to re-open the issue on the principle of resjudicata on account of a judgment and decree dated 24.12.1979 Ex.P7 and P8 respectively passed by a court of competent jurisdiction. Even the appellant court has upheld that judgment and decree and the same is on record as Ex.P-9. The plaintiff-appellant is one of the sons of Jagir Singh @ Jagiru who had claimed right in the whole of the property without limiting the same to l/3rd share. The findings recorded in the earlier judgment and decree dated 24/12/1979 Ex.P7 and P8 respectively have also been held to be res-judicata against the plaintiff-appellant where both the Wills allegedly executed by Jagiru were found to be forged. The argument that the plaintiff-appellant was merely a co-defendant in the earlier litigation has been rejected because the Will was set up against Jaspal Singh and Gurdip Singh, who had filed the earlier suit. It is appropriate to mention that Jaspal Singh and Gurdip Singh who are sons of plaintiff-appellant had derived their title from him and have pleaded him as one of the defendants. The aforementioned view is evident from a perusal of para 8 of the lower appellate Court which reads as under:- 8. It is correct that Santokh Singh was only a co-defendant along with appellants in the previous suit Ex.P7 but the will itself was set up against Santokh Singh and not against Jaspal Singh and Gurdip Singh who filed the earlier suit and derived their title from Santokh Singh. If that finding can bind Jaspal Singh and Gurdip Singh that will equally bind their father Santokh Singh. If that finding can bind Jaspal Singh and Gurdip Singh that will equally bind their father Santokh Singh. The question was agitated before the court as between the parties and no relief can be granted to the plaintiff of that suit without deciding the execution of the will in favour of the appellants. If the findings would have been given that the will was genuine, the suit of the plaintiff in that suit would have been dismissed to that extent. The appellant cannot derive any benefit from the judgment dated 24.3.1972 wherein the said will was acted upon. These proceedings were the proceedings where the legal heirs of Jagir Singh deceased were impleaded on the basis of the alleged will. There is no dispute that those were summary proceedings and the appellants were impleaded as party on the basis of the said will for the purpose of representation of Jagir Singh along. No right on the basis of the said will were decided and therefore I do not find any error in the findings of the trial court vide which it has been held that the judgment Ex.P7 will operate as resjudicata as regards the findings of the will between the parties. 2. Mr. B.D. Sharma, learned Counsel for the plaintiff-appellant has made an attempt to argue that the whole of the property in the land of Jagir Singh @ Jagiru should be held to be ancestral property. He has referred to the pedigree table showing that the grandfather of plaintiff-appellant Basant Singh owned 109 kanals 12 marlas of land. He had three sons Jagiru, Waziru and Jiva Singh. According to the learned Counsel the share of other two sons in the hand of Jagiru their brother had to be considered as ancestral co-parcener property. He has also attacked the findings of the courts below which have held that the issues raised by the plaintiff-appellant in the suit must be decided independently and cannot be hit by the principle of res judicata on account of judgment and decree dated 24.12.197 Ex.P7 and P8. 3. Mr. M.L. Sarin, learned Senior counsel for the defendant-respondent has argued that there is no room to reopen the issue on any count whatsoever. 3. Mr. M.L. Sarin, learned Senior counsel for the defendant-respondent has argued that there is no room to reopen the issue on any count whatsoever. According to the learned Counsel the law as applied to the facts available on record would clearly show that no new suit by the plaintiff appellant re-opening the findings concerning the will dated 5.5.1972 or with regard to the nature of property could have been filed because the aforementioned issues have attained finality on account of inter party litigation which culminated in the passing of the judgment and decree dated 24.12.1979 which have been exhibited as Ex.P7 and P8 respectively. The aforementioned view was upheld by appellate court also (Exh.P-9). Learned Counsel had made a detailed reference to the observations made by the learned trial court in para 7 and 8 while discussing issue No. 1, para 9 to 13 where issue Nos. 2, 4, 5 and 10-A have been discussed. He has then referred to discussion in para 14 to 17 concerning the Will under issue no.3 and argued that in the second appeal these findings cannot be reopened because those are based on cogent evidence as pleaded in the earlier suit (Ex.Dl.) 4. Having heard the learned Counsel I am of the considered view that the only question which would require determination in this appeal is whether the judgment and decree passed by the courts below giving 13/48 share to the plaintiff-appellant out of total land measuring 109 kanals 12 marlas is sustainable in the eyes of law by declining the application of principle of res judicata. The following pedigree table would be relevant to decide the controversy raised in the appeal:- Bansant Singh _________________________|________________________ | | | Jajiru Wajir Singh Jiwa Singh ____|______________________________________________ | | | | Santokh Singh Kauro Akko Jeeto w/o Plaintiff-Appellant Defendant Defendant Hardyal Singh _____|____________ ___________|_______ | | | | Jaspal Gurdip Bhajan Shingara Defendant Defendant Defendant Defendant Respondent No.5 Respondent No.6 Respondent No. 3 Respondent No. 4 5 It is evident that Basant Singh had three sons. The property to the extent l/3rd was inherited by Jagiru and was considered ancestral in his hand. The rest of the property belonging to his two brothers has not been considered as ancestral in the hands of Jagiru. The property to the extent l/3rd was inherited by Jagiru and was considered ancestral in his hand. The rest of the property belonging to his two brothers has not been considered as ancestral in the hands of Jagiru. The will dated 5.5.1972 has already been held to be forged in earlier litigation which culminated in the passing of the judgment and decree dated 24.12.1979, Ex.P7 and P8. That decree cannot be reopened on either of the two issues namely the nature of the property and the forged nature of the Will. Therefore, the plaintiff-appellant who is one of the four children of Jagiru could claim his share from the l/3rd share inherited by Jagiru. The findings of learned trial court as accepted by learned lower appellate Court are as under:- Issue No. 9. 20. I have given a finding while deciding issue No. l that l/3rd of the suit property is ancestral and co-parcenary property. It has also been held in the judgment Ex.P-7 by the learned Sub Judge, Rupnagar that l/3rd share out of the suit land is co-parcenary and out of the co-parcenary, Santokh Singh plaintiff his father Jagir Singh deceased, his sons Jaspal Singh and Gurdip Singh have equal shares i.e. l/4th share each. So the share of Jagir Singh deceased is l/4th, Santokh Singh plaintiff has l/12th and Jaspal Singh and Gurdip Singh, defendants have l/12th share each. In this manner, Jaspal Singh and Gurdip Singh got 1/12th share as per decree and judgment passed by Shri O.P.Goel, Sub Judge, 1st Class, Rupnagar, dated 24.12.1979. 21. So the share of Jagir Singh, deceased will come to l/4th plus 2/3nd which was his self-acquired property, which comes to 9/12th, out of this again the share of Santokh Singh will be l/4th of 9/12th i.e. 9/48th. Thus, the total share of Santokh Singh, plaintiff would come to 9/48" plus l/12th i.e. 13/48 share. As such, 1 decide that the share of the plaintiff is 13/48 in the land measuring 109 kanals 12 marlas and the house in dispute as fully detailed in the head note of the plaint. This issue is decided accordingly in favour of the plaintiff. 6. It has been repeatedly held by the Supreme Court that the question of res judicata is a mixed question of fact and law and in an appeal under Section 100 of the Code the same cannot be reopened. This issue is decided accordingly in favour of the plaintiff. 6. It has been repeatedly held by the Supreme Court that the question of res judicata is a mixed question of fact and law and in an appeal under Section 100 of the Code the same cannot be reopened. Reliance may be placed on the judgment of the Supreme Court in the case of Dharam Dutt v. Union of lndia\Therefore, there is no merit in this appeal. 7. For the reasons aforementioned this appeal fails and the same is dismissed.