JUDGMENT
H.L. Agrawal, J.
1. This second appeal is by the defendants first party. The plaintiff instituted a title suit for declaration of title and recovery of possession with respect to 1 Katha of land appertaining to plot Nos. 6. 6/2040 and 6/2041, under Khata No. 310, situate in village Dumri, Police Station Mohiuddin Nagar, in the old district of Darbhanga, fully described in Schedule 2 of the plaint
2. The plaintiffs case was that one Sohan Das was the recorded tenant of Khata No. 310 of village Dumri. He sold one Katha appertaining to plot Nos. 6, 6/2040 and 6/2041 by a registered deed of sale dated 9-10-1924 to one Ramsaran Das. Subsequently, the heir of Ram-saran Das, who is defendant second party, sold the suit land to the plaintiff by a registered sale deed dated 27-8-1960 (Ext. 2/d). It is alleged that defendants first party forcibly dispossessed the plaintiff from the suit land on the 15th Chait, 1378 Fasli. The present suit was therefore, instituted.
3. The plea of the defendants 1st party, who contested the suit, was that the land in question was recorded in the names of Tokan and Bunni and Sohan Das was a mortgagee. The mortgage was redeemed by the recorded tenants Tokan and Bunni and therefore, Sohan Das has no right to execute the sale deed on 9-10-1924 in favour of Ramsaran Das, and, as such, the plaintiff did not acquire any title by virtue of his purchase from the heir of Ramsaran Das. The story of pos-session and dispossession set UP by the plaintiff was also denied and it was asserted that the aforesaid recorded tenants Tokan and Bunni and thereafter their descendants were in possession of the land of Khata No. 310 throughout. In 1930 four Khatas of land under Khata No. 310. including the Schedule 2 land, was taken settlement of by defendant No. 1 from the sons of Tokan and Bunni. namely, Isser and Jhari at an annual rental of Rs. 4/- and he constructed a house upon a Portion of the same and planted several trees and was coming on in possession of the suit land for more than twelve years by virtue of the said settlement
4. The trial Court dismissed the suit with the findings that the sale deed executed in favour of the plaintiff was not legal, the plaintiff did not acquire any title thereunder and that the plaintiff never came in possession of the suit land. An appeal was filed by the plaintiff, wherein he made an application under Order 41. Rule 27 of the Code of Civil Procedure for admitting two sale deeds by way of additional evidence: one executed by the recorded tenants in favour of Sohan Das and the other executed by Sohan Das in favour of Ramsaran Das, in order to prove the title of the plaintiff to the suit land. The lower appellate Court by an order dated 19-8-1968 allowed the prayer for taking the aforesaid two sale deeds as additional evidence and directed the trial Court to take such, documents in evidence after, giving reasonable opportunity to the defendants respondents to adduce evidence in rebuttal, if any, and thereafter send back the record to it. Against the aforesaid order dated 19-8-1968 the defendants first party filed Civil Revision No. 1025 of 1968 before this Court and B. D. Sinsh. J., on a consideration of the various authorities cited before him dismissed the said revision on the 26th September, 1969, holding that “the order passed by the lower appellate Court directing to take additional evidence will come under phrase ‘any other substantial cause’ in Sub-clause (c) of Clause (c) of Rule 27 of Order 41 of the Code, and as such the order of the learned Subordinate Judge has got to be upheld”. The trial Court, accordingly, took the two sale deeds into additional evidence and sent back the record to the lower appellate Court. On the basis of these two sale deeds, the lower appellate Court came to the conclusion that the recorded tenants Tokhan and Bunni had sold away the land oil khata No. 310 to Sohan Das and, therefore, the plaintiff had acquired a valid title under his sale deed Exhibit 2 (d). It also disbelieved the case of the defendants first party of acquiring title to the suit land by adverse possession and accepted the case of possession and dispossession set UP by the plaintiff. The appeal was, accordingly, allowed and the suit was decreed.
5. The findings recorded by the Tower appellate Court, either on the question of title or on the question of possession, are based upon a consideration of a large number of materials, documentary and oral. Mr. Prem Lall, learned counsel for the appellants, fairly conceded that it was not possible for him to challenge these findings of fact in this second appeal. Learned counsel, however, submitted that the order dated 19-8-1968 passed by the lower appellate Court al-lowing the taking of additional evidence was illegal, and the decision, based essentially on the materials brought by way of additional evidence, was vitiated. Counsel submitted that In spite of the decision of this Court in the aforesaid Civil Revision No. 1025 of 1968, upholding the order dated 19-8-1968 passed by the lower appellate Court. It was open for him to challenge the validity of the aforesaid order and the earlier decision in the Civil Revision would, not be res judicata.
6. The Question raised by learned Counsel is an interesting Question of law and I propose to consider the same in detail. Learned counsel relied upon the provision of Section 105 of the Code of Civil Procedure where it has been provided that where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. This proposition of law cannot be disputed. In my opinion, if the appellants would not have come to this Court against the order of the lower appellate Court dated 19-8-1968, allowing additional evidence to be taken, it was open to them to challenge the correctness of the said order in this second appeal. The principles of Section 105 of the Code of Civil Procedure as such will be of no. advantage to the appellants in the present case in view of their having availed a remedy in this Court earlier in Civil Revision No. 1025 of 1968.
7. Learned counsel, however, submitted that the revisional jurisdiction of the High Court was an extraordinary jurisdiction and, therefore, any decision given by this Court in exercise of the revisional powers would not amount to res judicata for entertaining the same objection or around in a regular appeal. It is difficult to accept this contention. Learned counsel referred to the decision of the Supreme Court in Satvadhvan Ghosal v. Smt. Deorajin Debi. AIR 1960 SC 941. In that case, however, the facts were entirely different. The Supreme Court was considering the scope of Section 105 (2) of the Code of Civil Procedure and it was held that a special provision wag made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken, the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand, the correctness thereof could be challenged by an appeal from the final decision. In that case, an order of remand was made by the Calcutta High Court in exercise of its revisional power under Section 115 of the Code of Civil Procedure. It was observed by the Supreme Court after referring to the various decisions of the Privy Council that the order of remand was an interlocutory order and did not purport to dispose of the case, and a party was not bound to appeal against every interlocutory order which was a step in the procedure that leads UP to a final decision, and as such the correctness of the same could be challenged in an appeal from the final order. It was specifically held in that case that the order of the Calcutta High Court was not appealable to the Supreme Court and, therefore, the bar under Sub-section (2) of Section 105 of the Code of Civil Procedure was not attracted. The Supreme Court, accordingly, set aside the order of the Calcutta High Court. In my opinion, the decision of the Supreme Court in the above case, is of no assistance to the appellants. In this very decision, the Supreme Court has laid the foundation for applying the principles of res judicata. In paragraph 8 of the report, their Lordships have clearly observed that the principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court, haying at an earlier stage decided a matter in one way, will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.
8. In the case of Shankar Ram-chandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1920 SC I it has been clearly laid down by the Supreme Court that “when the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and it can Interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court It is only one of the modes of exercising power conferred by the Statute: basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider, and larger sense”. In that case in a dispute under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, one of the parties had preferred a petition for revision under Section 115 of the Code of Civil Procedure before the Bombay High Court and a learned Single Judge not being satisfied that the appellate Court had acted illegally or with material irregularity in exercise of its jurisdiction had dismissed the petition. Thereupon a writ application under Articles 226 and 227 of the Constitution challenging the same order was filed in the Bombay High Court. A Division Bench of the Bombay High Court interfered in the exercise of the writ jurisdiction and held that in spite of the dismissal of the petition for revision by the learned Single Judge, the power of the writ Court in a proper case was not ousted. The matter went to the Supreme Court and their Lordships set aside the order of the Division Bench of the Bombay High Court and took the view that a writ application should not have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the Code of Civil Procedure. The Supreme Count observed “If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions”.
9. In view of the principles laid down in the aforesaid decisions of the Supreme Court, I am of the opinion that the contention raised on behalf of the appellants must be rejected. In the Bombay case AIR 1970 SC 1, the position was rather better, for the petitioner namely, the revisional order had been passed by a learned Single Judge, whereas the writ application was heard and disposed of by a Division Bench and the writ jurisdiction was not a jurisdiction under the Code of Civil Procedure. In the instant case, however, the revisional jurisdiction and the appellate jurisdiction are the creatures of the Code of Civil Procedure and the appeal is also before a Single Judge and the principles laid down by the decisions of the Supreme Court will apply with greater force.
10. In view of the aforesaid decisions of the Supreme Court, it is not necessary for me to advert to any other authority. But suffice it to state that a similar view has been taken by the Punjab High Court in Balkrishan Dass v. Parmeshri Dass. AIR 1963 Puni 187 and by a Full Bench (sic) of the Madhya Pradesh High Court In Shyamacharan Raghubar Prasad v. Sheoiee Bhai Jairam Chat-tri, AIR 1964 Madh Pra 288. I am in respectful agreement with the views expressed by the Punjab and Madhya Pradesh High Courts. In view of the binding effect of the decisions of the Supreme Court referred to above. I am of the definite view that the contention raised by Mr. Prem Lall that the decision in Civil Revision No. 1025 of 1968 will not amount to a res judicata in this appeal has got no substance.
11. The only point raised, therefore, having been rejected, this appeal tails and is dismissed with costs.