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Allahabad High Court
Shri Dhar And Anr. vs Udaibir Singh Judeo on 30 April, 1928
Equivalent citations: AIR 1929 All 17
Author: Bennet


Bennet, J.

1. This is a second appeal by the plaintiffs-appellants against an order, in appeal, of Mr. Norton, the learned District Judge of Jhansi, dismissing the suit of the plaintiffs for possession of a grove No. 704 of mauza Kuthonda in Jalaun District. The sole ground on which the lower appellate Court has proceeded is that the matter is res judicata between the parties on account of previous litigation in the revenue Courts. The previous litigation consists of a suit for ejectment brought by the present respondent Rao Sahib Udaibir Singh against one Mulu as his non-occupancy tenant of less than 12 years standing. The present respondent granted a lease to Mulu and in the same year in which he granted the lease he brought a suit for ejectment against Mulu. That suit for ejectment was dismissed by the Assistant Collector but was decreed in appeal by the Commissioner on 12th July 1922. During the pendency of the suit in the Court of the Assistant Collector the present appellant applied to be made a party. The revenue record is not before this Court but it appears to me that the Assistant Collector allowed the name of the present appellant to be added as a defendant on the analogy of the provision of Section 198, Act 2 of 1901. The plea of Mulu was that he was looking after the land as a grove on behalf of the present appellant who was his master. Section 198, Act 2 of 1901, allows a third party to be added if the alleged tenant pleads that he is a tenant of that third party. In the present case the alleged tenant did not plead that he was tenant of the third party but that he was the servant of third party. It would also have been possible for the revenue Court to have added the present appellant as a party under the general provisions of the Civil Procedure Code, Order 1, Rule 10. But whether the re venue Court purported to act under Section 198, Act 2 of 1901, or under the general provisions of the Civil Procedure Code, I consider that Sub-section 2, Section 198, would limit the decisions of the revenue Court in so far as such decisions concern the rights of the person added as a defendant. That sub-section states:

The decision of the Court on such question shall not affect the right of any person entitled to the rent of the holding to establish his title by suit in the civil Court.

2. The next point to which attention may be invited is that the plea of the present appellants that they have the rights of a grove-holder in this number as against the present respondent who is the zamindar of the entire village was not one of the three issues framed by the Assistant Collector. Those three issues were.

(1) Whether the relation of landlord and tenant exists between the plaintiff and defendant 1 (i.e., Mulu)?

(2) Whether the land in suit is agricultural land or grove?

(3) Whether the plaintiff is entitled to eject the defendant (meaning Mulu, defendant 2)?

3. The third point to which attention may be invited is that the learned Commissioner specifically states in his judgment in appeal:

Regarding issue 3 I find that appellant is entitled to eject Mulu, respondent 1 who is his tenant. But he is not entitled under the Tenancy Act to eject Sridhar and Ramdin who appear to be trespassers and not tenants.

4. It was argued for the respondent that on issue 2 the learned Commissioner found:

I find that the land in suit is neither agricultural land nor a grove.

5. But such a finding in regard to the state of No. 704 in the year 1921, cannot possibly be res judicata in the present suit which is whether the appellant had got the rights of a grove holder in No. 704 in 1924.

6. The fourth point to which attention should be directed is that under Section 11, Civil, P.C. the issue which is res judicata must have been decided “in a Court competent to try such subsequent suit.” The revenue Courts are not competent to try the present suit. Therefore the finding of the revenue Court cannot amount to res judicata. The learned Counsel for the respondent admitted that the finding of the learned District Judge that this suit was barred by res judicata could not be upheld. He advanced the argument that the suit of the plaintiff appellant might be barred by estoppel because a decree if granted to him would affect the decree granted by the revenue Courts. It appears to me that the decree granted by the revenue Court was merely that Mulu should be ejected from No. 704. A decree granted to the plaintiff in the present suit would not in any way affect the decree granted by the revenue Court on appeal. Accordingly I allow the appeal with costs and remand the suit for decision by the lower appellate. Court on the other issues.

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