CHAUBE SHEODARSHAN LAL Vs. BALMAKUND

JUDGEMENT

(1.) This is a Letters Patent appeal from an order of remand passed by a learned single Judge of this Court in a second appeal from the decree of the Additional District Judge of Agra. The appellant in this Court was a defendant in the suit which has given rise to-this appeal. He was sued by the plaintiff, respondent in the Court of an Assistant Collector, First Class, for ejectment under Section 82, Agra Tenancy Act (3 of 1926) from a four bigha 18 biswa land situate in village Datoji, mahal Daya Kishan, district Agra. The plaintiff respondent is the proprietor and lambardar of the aforesaid mahal and alleged in his plaint that the defendant- appellant was an occupancy tenant of the land referred to and bad sublet his holding in contravention of the provisions of the Tenancy Act, which fact rendered him liable to ejectment. The defendant pleaded that he was not an occupancy tenant but a proprietor and therefore not liable to ejectment for the reason alleged by the plaintiff. The principal question in the case was whether the defendant was a proprietor as alleged by him. In proof of his allegation the defendant produced copies of three orders of Revenue Courts. One was passed as far buck as 1879 by an Assistant Settlement Officer in proceedings for assessment of rent. The defendant (or his predecessor) pleaded in that case that he was a proprietor. The Assistant Settlement Officer upheld that plea and refused to assess rent. In 1894 the plaintiff (or his predecessor) instituted against the defendant (or his predecessor) a suit for arrears of rent in the Court of an Assistant Collector First Glass. The suit was dismissed on the defendant's plea, based on the decision of 1879, that he was a proprietor. In 1919 the plaintiff sued the defendant in the Court of an Assistant Collector, Second Class, for arrears of rent. This suit was also dismissed on the defendant's plea that he was not a tenant but a proprietor. There was a controversy before us that in the second and third cases the Court did not definitely hold that the defendant was a proprietor. We have referred to the judgments in those cases and are of opinion that the Court did hold the defendant to be proprietor on the strength of the Assistant Sottlement Officer's order of 1879. In the suit which has given rise to this appeal, the defendant, as already said, again pleaded that he was a proprietor and that the decisions in the second and third of the above three cases operated as res judicata, so that as between the parties to this litigation the defendant must be held to be proprietor, and not a tenant.

(2.) The Assistant Collector, and on appeal the Additional District Judge upheld the plea of res judicata, and dismissed the plaintiff's suit. In second appeal the learned single Judge, whose decision is now in question, took a contrary view, holding that neither of the two decisions, relied on by the defendant, operates as res judicata. Accordingly he set aside decrees of the first two Courts and remanded the suit for decision of the question of proprietary right on the merits. The defendant has appealed junder the Letters Patent and reiterates his plea of res judicata. The only question we are called upon to decide is whether one or the other of the two decisions above referred to concludes the question of proprietary right in favour of the defendant.

(3.) The question whether the decision of 1894 operates as res judicata presents no difficulty. It was given at a time when N.W.P. Rent Act (No. 12 of 1881) was in force. That Act did not empower the Revenue Courts to decide any question of proprietary right, except incidentally, not was an ejectment suit of the nature contemplated by Section 82 of the present Agra Tenancy Act provided for by Act 12 of 1881. The decision of 1894 cannot operate as res judicata now, when Revenue Courts have been empowered by the Tenancy Act to decide conclusively a question of proprietary right arising between the parties to a rent suit. Section 199 of the Tenancy Act 2 of 1901 empowers the Revenue Courts either to decide a question of proprietary right raised before it or to direct one of the parties to obtain a declaration of his right from a Civil Court and stay the proceedings before it. The Tenancy Act 3 of 1926, which is now in force, empowers the Revenue Court to remit an issue to a competent Civil Court for the decision of the question of proprietary right raised before it and to decide the question finally on receipt of the finding of the Civil Court. It is clear to us that the decision of a Revenue Court under Act 12 of 1881 on a question of proprietary right was no bar to the Revenue Court adopting the procedure under Act 2 of 1901, nor is it a bar now to such Court taking action under the Tenancy Act 3 of 1926. Accordingly we hold that the decision of 1894 does not operate as res judicata on the question of proprietary right. We may note that this decision was not relied on before the learned single Judge who heard the second appeal as a bar of res judicata.