JUDGMENT
Alston, J.
1. This second appeal raises a question of some importance which so far as I have been able to ascertain is not covered by any direct recent authority. Ten plaintiffs, of whom Kamta Pershad was one, brought a suit in Civil Court to have it declared that they were the proprietors of a certain piece of land from which they alleged they had been wrongly ejected, and they farther asked to be put into possession again. The defendant was one Majid-ullah Khan, a zamindar, who in the year 1904 had sued the said Kamta Preshad in the Revenue Court for possession of this very piece of land and obtained a decree against him, and it was under this decree which had been confirmed in the Commissioner’s Court that the Amin had ejected the present plaintiffs. The decree was sought for and obtained on the ground that the land in question was rent-free land which the zamindar was entitled to resume possession of. The learned Subordinate Judge framed three legal issues: (1) whether the suit is cognizable by this Court, (2) whether the suit is time-barred, (3) whether Section 13, Civil Procedure Code, bars the suit. These three questions he proceeded to answer in the following summary manner: I may at once say that the first three issues are not worth taking serious notice of. The suit is for a declaration of the plaintiffs’ title to the land and is clearly fit for the cognizance of the Civil Court. Similarly Section 13, Civil Procedure Code, has no application. The finding of Revenue Court on a question of title cannot be regarded as the decision of a competent Court and cannot operate as res judicata. As to limitation it is only two years that the plaintiffs were dispossessed and 1 fail to see the force of this objection.” On the question of fact he held that the plaintiffs;’ case was ‘as clear as a case can be on the merits,” and that the defendant had ‘no semblance of a title” to the land in dispute. He, accordingly, decreed the suit with costs. From this decree the defendant appealed and the learned Judge by whom the appeal was heard, holding that the present suit was barred by the previous decision in the Revenue Court, allowed the appeal and dismissed the suit. The plaintiffs, with the exception of Kamta Pershad, who has accepted the decree of the learned Judge, ask this Court to reverse that decree upon the ground (a) that the present suit is not barred by the rule of res judicata, (b) that ‘ in any event” the present appellants, who were no parties to the suit for resumption of the muafi, are not bound by the Revenue Court’s order in the case.” In dealing with the appeal before him the learned Judge based his conclusion that the present Civil suit was barred by the previous revenue suit upon the reasoning that as Section 167 of the Tenancy Act prohibited any Court but a Revenue Court from taking cognizance of any dispute or matter in respect of which a suit or application might be brought or made under that Act and as ‘the question whether a person is a rent free grantee or an absolute proprietor, is clearly a matter in respect of which a suit under Section 150 of the Tenancy Act can be brought and was brought in this instance,” the Revenue Court was competent to decide the question of proprietary title raised in the previous suit; and holding that Kamta Pershad ‘ must be held to have claimed the right in common for himself and those who have now joined him as plaintiffs” he decided that the decision in the Revenue Court was a bar to the present suit.
2. I am unable to accept the conclusion at which the learned Judge arrived which is, in my opinion, the result of a fallacy in his reasoning on Section 167 of the Tenancy Act. The question turns on the interpretation of the word “such” in the section. What are the “disputes and matters” which no Court other than a Revenue Court shall take cognizance of? Clearly those arising out of suits and applications of the nature specified in the fourth schedule.” Now a suit for a declaration that the plaintiffs are the owners of a certain piece of land, with a prayer to be put into proprietary possession thereof, is certainly not a suit to which the fourth schedule of the Tenancy Act has anything to say. This view is supported by a ruling, which though not cited in argument, has a distinct bearing on this discussion. It is Ajudhia Prasad v. Sheodin 4 A.W.N. 75 There Straight, and Tyrrell, JJ., had before them a, case similar to the present case, so far as the principle involved goes, though the Act then in force was the old Rent Act. Section 95 of that Act, like 167 of the present Tenancy Act, declared that no Courts other than Courts of Revenue should take cognizance of any dispute or matter” on which any application of the nature mentioned in the section could be made; ‘such” applications were to be heard and determined in the Revenue Courts only. One of the applications that could be made under Section 95 was an application to resume rent-free grants.” I now quote a passage from the judgment. The appellant, now zamindar of the estate, applied to the Revenue Court under Section 95 (c) and obtained an order for the resumption of the plots in question on the finding that they were resumable rent-free grants. The respondents were consequently ejected and the appellant got possession. In the present suit the respondents seek to recover possession over the soil and timber, asking also for a determination of the nature of their tenure’ therein. At the hearing of the appeal we were much passed by the argument based on the first plea that the jurisdiction of the Civil Court is ousted by the provisions of Section 95. But on mature consideration this contention is found to have more apparent than real force for the matter presented by the plaintiffs in this suit is not one on which an application of the nature mentioned in that section could by them have been made to a Court of Revenue. It was held that ‘the determination of the Revenue Courts on the application of the appellant to resume the plots as rent-free giants does not bar this suit under Section 13 of the Civil Procedure Code.’ To appreciate the force of this decision it must be remembered that Section 96 (b) of the Rent Act declared that orders passed under Section 95 of the Act shall have the same effect as if they were judgments of the Civil Courts.’ In the case of Inayat Ali Khan v. Murad Ali Khan 25 A.W.N. 103; Blair and Banerji, JJ. had to consider the question whether the decision of a District Judge, sitting as an appellate Court under Section 189 of the Rent Act, that certain parties stood in the relation of co-sharers, could be subsequently challenged in a Civil Court. Although then the Tenancy Act was in operation when the District Judge tried the appeal in question that Act did not apply for reasons which it is unnecessary to consider. Their Lordships said in that case a suit for the determination of the plaintiff’s proprietary title to immovable property’ is not one of the classes of suits which might be brought in a Court of Revenue under that Section (s. 93), and the dispute or matter involved in such suit is not the same dispute or matter in regard to which a suit might be brought in the Revenue Court. That section is, therefore, no bar to the maintenance of the present suit.” The judgment in the case of Ashraf-un-nissa v. Ali Ahmad 26 A. 601 was cited and approved of. Stanley, C.J., and Burkitt, J., had there held that the decision of an Assistant Collector in a suit for profits or for rent, or any suit which under the Rent Act he is competent to hear,” is a decision which cannot be treated as res judicata ‘in a subsequent suit in which the proprietary title to the land, the profits of which were in dispute before him, is in question.” Section 13 of the Civil Procedure Code was then referred to and it was observed that before any decision can be a matter of res judicata it must have been passed in a Court of competent jurisdiction, competent to try the subsequent suit in which such, issue has been subsequently raised.” I have italicised the quotation which directly bears on the question involved in this second appeal. In Rani Kishori v. Raja Ram 24 A.W.N. 109 Stanley, C.J. and Burkitt J. remarked : That a question of title which has been decided in a Rent Court and which it was absolutely necessary for the Rent Court to decide before it could come to a decision between the parties to the case before it may again be litigated in a Civil Court, is undeniable and is supported by a mass of authority in this and other High Courts.” The learned Counsel for the respondent has referred me to no ruling of this or any other Court in which the rulings mentioned above were questioned. A decision under the Guardians and Wards Act is obviously irrelevant. It must however, be observed that these decisions were given under the Rene Act of 1881. and it is necessary to consider whether the new Tenancy Act has affected their validity, and if so to what extent. In the case of Inayat Ali Khan v. Murad Ali Khan 25 A.W.N. 103 already referred to, Blair and Banorji, JJ., said It is clear from the provisions of the Tenancy Act of 1901, that it is the intention of the legislature that all questions of title should be determined by the Civil Court so that the question raised in this appeal will not arise in future.” I understand their Lordships to mean that as a recorded proprietary right must under the Act be recognized whenever the recorded proprietor sues under chapter XI in a Revenue Court, whoever proposed to challenge that right would have to go to a Civil Court. That being so no question of rival decrees can arise in such cases. This conclusion, however, does not touch the appeal which is before me, for the proceedings in the Revenue Court in the present case were not under chapter XI.
3. I now come to two later rulings of this Court which were considered by the learned Judge whose, decision is before me in appeal. Those rulings were in the opinion of the learned Judge not relevant to this case and with this view I agree. They were given under Section 199 of the Tenancy Act, which section goes much farther than Section 208A of the Rent Act did. In the latter case if a party failed to comply with a direction to go to the Civil Court the question was to be decided “against him” but under Section 199 of the Tenancy Act the Revenue Court may ‘determine such question of title itself,” Now Section 199 deals with suits and applications against a person alleged to be the plaintiffs’ tenant,” and as the definition of tenant”, in the Act expressly excludes ‘ a rent-free grantee”, it follows that the provisions of that section cannot apply to a suit brought by a proprietor of a mihal to resume possession of land alleged to be held rent-free. Such a suit falls under Section 150 of the Act. ‘Now Section 150 is in chapter X, and there are no provisions in that chapter similar to those that are to ba found in Sections 199, 200 and 201. In Salig Dubs v. Deoki Bubs 27 A.W.N. 1 and Beni Panel v. Raja Kausal Kishore Prasad Mai 27 A.W.N. 6 which are the two later rulings to which I have referred above, the special provisions of Sections 199 and 200 were at the foundation of the whole of the argument by which the decision in each case was supported. If then these decisions owe their existence to special provisions, which have not been made applicable to proceedings under chapter X of the Act, they leave the authority of Ajudhia Prasad v. Sheodin 4 A.W.N. 75 untouched; and the reasoning on principle in the other cases to which I have referred remains valid for any case which cannot be dealt with under Section 199 or Section 201 of the Act. I would, there- fore, hold that the decree of the Assistant Collector of the 26th of October, 1904, is no bar to the institution of the present suit. The conclusion at which I have arrived is supported by an unreported case, cited in a footnote in Agarwala’s Commentary on the Tenancy Act, the record of which I have looked into. The case is Muhammad Zahur v. Mulcaram V. F.A.F.C. No. 01 of 1905 In that case Banerji and Richards JJ., accepted as correct the view taken in appeal by the District Judge, which was to the effect that, where a Revenue Court in a suit brought under Section 199 of the Tenancy Act, did not in fact exercise the authority given to it by Sub-section (i) to “determine such question of title itself,” the decree of that Court would not have the effect of res judicata in a suit subsequently brought in Civil Court on the question of title. There is, however, another ground upon which I am asked to decree this appeal, which it may be as well as to deal with. It is contended that in any event the plaintiffs other than Kamta Pershad cannot be bound by the decree of the Revenue Court in question as they were not parties to it. The judgment of the Assistant Collector is headed Majid Ullah plaintiff v. Kamta Pershad defendant.” The second issue framed was has defendant acquired proprietary right in respect of the grant in suit.” The judgment itself begins with the words: “The question is whether defendant acquired proprietary right in the muaji in suit,” and closes with the words decree for resumption, ejectment of defendant, cosls, pleader’s fee on defendant,” and there is nothing in the body of the judgment which suggests that any one but Kamta Pershad. was interested in the question before the Assistant Collector. On turning, however, to the plaint which was filed in the present suit, I find that although paragraph 4 begins with the statement that the former suit was against Kamta Pershad, it concludes with the statement that the defendant ejected the plaintiffs from the field known as pat, on the 19th of October, 1905, through the Amin of the Revenue Court.” I, further, find that it is pleaded in paragraph 7 of the plaint that regard being had to the nature of the dispute between the parties to this suit and also to the fact that all the plaintiffs were party to the suit (jumla mudaiyan fariq mu-qadarna mal the), the orders of the Revenue Court mentioned in paragraph 4 of this petition of plaint are altogether wrong and ultra vires, therefore, the plaintiffs are not. bound by them.” Bat for the circumstances that the ejectment of the plaintiffs from the field by the Amin is mentioned in paragraph 4, I should have had no hesitation in concluding that the word not” had been omitted by accident in the passage set out above. The whole context suggests this. How could the decision have been ultra vires if all the plaintiffs had been parties to the suit? It might have been wrong but not ultra vires. In the written statement filed in reply to this plaint the defendant did not plead that Kamta Pershad had represented the plaintiffs in the previous litigation, though he did plead that as the Revenue Court had already decided the matter, the Civil Court was not competent” to decide it. Assuming, however, that there was no clerical error, in a statement in a, pleading that certain plaintiffs were parties to a suit binding on them even though the judgment in that very suit shows that they were no parties to it? It might have been- argued that had the plaintiffs not admitted in their plaint that they were “parties” to the previous suit the defendant might have shown that Kamta Pershad had in fact and in law represented them. The learned Counsel for the respondent, however, did not put forward this contention, indeed he made no reference whatever to paragraph 7 of the plaint. His contention was that as the present plaintiffs gave up possession at the bidding of the Amin. it ought to be assumed that Kamta Pershad had claimed the land in common for himself and them, in which case explanation V of Section 13 of the Civil Procedure Code of 18S2 would bar the present suit. He, however, made no attempt to show that the provisions of Section 30 of the Code had been carried out or that they did not apply. In the case of Hazir Gazi v. Sonamonee Dassee 6 C. 31 in which Section 30 was discussed it was said that a decision clearly would not be binding where the first suit did not purport to have been litigated bona fide in respect of a right claimed in common.” All that is said in the judgment of the learned District Judge on the question I am now discussing, is that Kamta Pershad “must be held to have claimed the right in common for himself and those who have now joined him as plaintiff.” In my opinion, it was for the respondent to show that the appellants were legally bound by the decision of the Revenue Court which he set up as a bar to the present suit. This he has not done. I, therefore, hold that the present suit was not barred by the previous decision in the Revenue Court. I, therefore, allow this appeal and set aside the decree of the lower appellate Court and remand the case under Order 41, Rule 23 of the Civil Procedure Code for trial on the merits. Costs will abide the result.
