RAGHUBIR RAI Vs. MADHO

JUDGEMENT

(1.) THE suit out of which this appeal has arisen is in substance a suit for recovery of rent from a tenant within the definition of these two words in Section 4 of the Tenancy Act. THE plaintiffs first of all went to the Revenue Court. THE plea taken in defence there was that the Revenue Court had no jurisdiction. THE court of first instance accepted that plea. THE plaintiffs appealed. THE appellate court held that the Revenue Court had jurisdiction, but it dismissed the plaintiffs suit on the ground that they had failed to prove that they were entitled to recover the rent which they claimed. Neither side proceeded to the court of the District Judge. THE plaintiffs have now come to the Civil Court and are seeking to recover the same rent from the defendants on account of the same years. THE courts below have dismissed the suit on the wrong ground that it is barred by the principle of res judicata under Section 11 of the Code of Civil Procedure. It is quite clear that the suit is one which might and ought to have been tried in a Revenue Court in view of the terms of Section 167 of the Tenancy Act. THE defendants first party are clearly tenants and the sum sued for is the share of the value of the fruits of a grove and, if payable at all, is payable on account of the grove. THE suit ought to have been dismissed on this ground alone by the court of first instance. We dismiss the appeal with costs.