MIRZA ABID KAZIM HUSAIN Vs. MIRZA NASIR HUSSAIN

JUDGEMENT

(1.) THIS First Appeal from Order is directed against an order of the Addl. District Judge Lucknow, setting aside the decree passed by the Judicial Officer. Lucknow, dismissing the suit and remanding the case back to the revenue court for trial.

(2.) THE relevant facts are these: the respondents filed a suit in the year 1956 in terms of the U. P. Land Tenures (Legal Proceedings) (Removal of Difficulties) Order, 1952, for recovery of Profits in respect of their share in Mahal Karbala Talkatora of village Harchandpur, Tahsil and Distt. Lucknow, contending that the defendant Hazi Mirza Mohd. Askari Khan was their agent; it was alleged that defendant, as their agent, had been realising profits from the Mahal which consisted also of abadi and parti land with buildings standing thereon. THE defendant, inter alia, pleaded that the suit was not within jurisdiction of the Civil Court, he being the lumberdar of the Mahal. THE learned Civil Judge upon a scrutiny of the evidence held that the plaintiffs had no interest in the said Mahal and, therefore, they were not entitled to any profit. It was further held that the suit being a suit filed by co-sharer in respect of the profits of the Mahal against the lumberdar, it lay within the jurisdiction of the revenue court, under Section 230 of the U. P. Tenancy Act. Having reached these two principal findings the suit was dismissed. THEreafter, the plaintiff filed another suit in the court of the Judicial Officer. Lucknow, on 19th August, 1960, taking the plea that the defendant-appellant was the lumberdar of the Mahal and in that capacity he was realising the profits of the Mahal including those arising from the parti land over which the buildings stand. In the written statement it was contended that the civil court having negatived the alleged title of plaintiffs and the main issue having thus been decided against them, they were estopped from taking a contrary stand in the revenue court. In this way the bar of res judicata was pleaded by the defendant. THE learned Judicial Officer accepted the contention, but the Addl. District Judge in appeal set aside that order holding that since a suit under Sec. 230 of the U. P. Tenancy Act was not cognizable by the Civil Court, any finding given by the Civil Court in the prior suit would not constitute res judicata. Having taken that view, he sent back the case for trial to the revenue court.

(3.) FOR the discussion in the above, I see no force in the appeal which is hereby dismissed. In the circumstances, costs shall be borne by the parties. Appeal dismissed.