GANGA Vs. MAHMUD-UN-NISSA BEGAM

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for ejectment. Previous to this litigation in 1910 a suit for ejectment in respect of this very plot was fought out between the parties. It was dismissed on the ground that such a suit was not maintainable in a revenue Court. That decision was based on certain rulings of the Board of Revenue which were than in force. Subsequent to this it appears that the Allahabad High Court in the ease of Param Hansman, Tewari V/s. Darsrathman Tewari A.I.R. 1921 All. 128, has taken a view that a suit under Section 58 would be maintainable in a revenue Court. This ruling has since been followed by the Board of Revenue. The result is that under the rulings which are now in force the suit is maintainable. The learned advocate for the appellant concedes this.

(2.) The Court of first instance, however, dismissed the suit holding that it was barred by the principle of resjudicata. It remarked that although the present conception of the law may be different, nevertheless as between the parties the ruling that the suit was not maintainable was final.

(3.) The learned District Judge has taken a contrary view. He has held that the principle of res judicata cannot apply to this case. It is obvious that if the plaintiff were to go to the civil Court her suit would be thrown out by the civil Court on the ground that she ought to go to the revenue Court. The civil Court will, of course, not be bound by the previous revenue Court decision and would naturally follow the view of this High Court. 5. The decision in the previous case turned entirely on. an incorrect view of the law. It is true that an issue of law may be res judicata in certain circumstances. The rulings on the point are numerous and soma of them are not easily reconcilable, but it may be laid down broadly that a decision on a point of law does not operate as res judicata if the cause of action in a subsequent suit is different from that in the former suit, as often happens in the cases of recurring liability such as maintenance allowance or even ejectment suits. On the other hand, if the cause of action is the same, the decision would be res judicata. This was clearly laid down in the case of Alemunnisa Chowdhurani V/s. Shama Charan Roy (1905) 32 Cal. 749. In the present case the right to eject a tenant accrues afresh every year. Following the Calcutta Sruling, I, therefore, hold that the previous decision that a suit of this kind was not. maintainable in a revenue Court cannot operate as res judicata. It is open to the revenue Court to say that in the correct view of the law which now prevails it has jurisdiction to entertain it. 6. In these circumstances, the suit was rightly decreed. The appeal is accordingly dismissed, but without any order-as to costs as no one appears for the respondent.