JWALA DEBI Vs. AMIR SINGH

JUDGEMENT

(1.) This appeal raises a point of law which is very interesting and which is not covered by any authority which may have been laid down before me, though many cases to be presently mentioned have been cited before me.

(2.) The facts are these: The appellant who was the plaintiff in the Court of first instance instituted the suit for ejectment of the respondent, on the ground that he was her (plaintiff s) tenant by virtue of holding certain lands, as pasture ground. The suit involved certain plots which had been the subject of a previous litigation between the plaintiff's predecessor-in-title and the defendant. In that suit, the plaintiff's predecessor, Mt. Mubarak-un-nissa, was denied any relief, on the ground that the suit was not maintainable in the revenue Court. The defendant pleaded that the judgment in the former suit of 1912 operated as res judicata in so far as the lands common to the two suits were concerned. This contention found favour with the learned Assistant Collector and he accordingly dismissed the suit, except with regard to two plots of land which were not covered by the previous litigation.

(3.) On an appeal by the plaintiff, the judgment of the Court below has been affirmed. Hence the appeal by the plaintiff. On behalf of the appellant, the case of Ramnath V/s. Emperor A.I.R. 1926 All. 281 a decision by Sulaiman, J., of this Court has been relied on. That case was very similar to the present case and the learned Judge held that the fact that, in the earlier litigation, the revenue Court had denied itself jurisdiction did not operate as a bar to the maintenance of the subsequent suit in the revenue Court: The learned Judge relied on a Calcutta case of Alimunissa Chawdhurani V/s. Shama Charan Roy [1905] 32 Cal. 749. That decision has since been overruled by a Bench of five Judges of the Calcutta High Court, vide Tarini Charan Bhattacharjee V/s. Kedar Nath Haldar . The learned District Judge has relied on a decision of this Court in which it was held that a decision on a point of law operates as res judicata between the parties, just as much as a decision on a fact.