BHAIRO SING AND ANR Vs. UDIKARAN SING

JUDGEMENT

(1.) The plaintiff in this case sued for confirmation of possession and for a declaration of his title in 8 bigas 10 katas of jerat land; his cause of action being the slur cast upon his title by the decision of the Collector in a suit brought by the defendant under clause 6, section 23, Act X of 1859, in which the defendant was declared to have been illegally ejected by the zamindar. In that suit the defendant got a decree on the strength of a patta said to have been given to him by the plaintiffs vendor. The Judge on appeal has held that the present suit is identical with the one already decided by the Collector, inasmuch as in both the genuineness of the patta was the point at issue, and has dismissed plaintiff's suit as barred by section 2, Act VIII of 1859.

(2.) There is no doubt a decision of this Court in the case of Ram Bhujjun Bhuggut v. Ketai Ram Chowdree 6 W.R. Act X., Rul. 22 in favour of this position, but the decision has been subsequently overruled by the Full Bench in the case of Gooroo Doss Rai v. Ramnarayan Mitter Case No. 137 of 1864, Feb. 22nd, 1867 (B.L.R. Sup. 628), in which it was laid down that clause 6, section 23, Act X of 1859, refers only to possessory actions against the persons entitled to receive the rent, and not to suits in which the plaintiff sets out his title and seeks to have his right declared and possession given in pursuance of that title. "Full meaning," the learned Judges say, "may, and we think must, be given to the words illegally 'ejected' without treating them as giving a wider sense to the words above mentioned;" and another case, Aradhun Dey v. Golam Hossein 8 W.R. 487, is exactly in point with this, and rules that a Collector's judgment as to the genuineness of a patta cannot be pleaded as an estoppel in the Civil Court in an action for ejectment.

(3.) There appears to be no difference as to the principle involved between an action for ejectment and one for declaration of title, and we therefore think that the Judge's decision was wrong. The appeal is allowed with costs, and the case remanded to the lower appellate Court for trial on the merits.