ITAR SINGH Vs. UMRAO

JUDGEMENT

(1.) This appeal must succeed. It is a settled proposition of law that the rule of res judicata so far as relates to the trial of an issue refers not to the date of the commencement of the litigation but to the date when the Judge is called upon to decide the issue.

(2.) It is equally settled that the competence of a Court for the purpose of Section 11 of the Civil P.C. is "to be determined irrespective of any provision as to a right of appeal from the decision of such Court ". Vide Explanations 1 and 2 of Section 11 of the Civil P.C. and the case of Beni Madho V/s. Indar Sahai [1909] 32 All. 67. It remains only to apply this proposition of law to the facts of this present appeal.

(3.) The suit out of which this present appeal arises was brought by the plaintiffs- appellants for arrears of rent for three years, on the allegation that the plaintiffs were the ex-proprietary tenants of the plots in respect of which the rent was due from the defendants, and that the defendants were in possession of these plots as sub-tenants on behalf of the plaintiffs. The defence to the suit was that the defendants were not in possession as sub-tenants on behalf of the plaintiffs, but being zemindars of the plots in dispute were in possession as zemindars, and the plots in dispute constituted their khudkasht land. The learned Assistant Collector who tried the suit decreed the plaintiffs claim and against the decree an appeal was filed by the defendants in the Court of the District Judge.