Norman Macleod, Kt., C.J.
1. The plaintiffs sued for a declaration that the decision in the Suit No. 2 of 1913 before the Talukdari Settlement Officer, in appeal No. 541 of 1916 of the District Court and second appeal No. 919 of 1919 in the High Court, was without jurisdiction, null and void, and not binding on the plaintiffs-That the plaintiffs owned one-thirty-sixths in Tajabhai Surasanji's property in Jalia village and that they were entitled to have the shares separated. The defendants pleaded that the suit was barred on the principle of res judicata owing to the proceedings before the Talukdari Settlement Officer. The trial Court held that the plaintiffs' suit was barred by res judicata and dismissed it. On appeal the First Class Subordinate Judge with appellate powers reversed the decision of the trial Court on the issue of res judicata and sent the suit back for trial on the remaining issues.
2. Defendants Nos. 1 to 12 have appealed to the High Court. Defendants Nos. 1 to 12 made an application No. 2 of 1913 to the Talukdari Settlement Officer under Section 11 of the Gujarat Talukdars' Act, for partition and separate possession of their shares in the village of Jalia, a Talukdari village, as recorded in the settlement register prepared under Section -5 of the Act, The present plaintiff and others disputed their title to the share claimed by them-The Talukdari Settlement Officer held the applicants to be entitled to the share specified in the settlement register as claimed by them. On appeal to the District Judge, under Section 16 of the Act, the decision of the Talukdari Settlement Officer was confirmed. A second appeal No. 919 of 1919 was filed in the High Court but was dismissed under Order XLI, Rule 11. As the plaintiffs now ask for a declaration that the decision in that second appeal was without jurisdiction it is necessary for us to consider whether an appeal lies to the High Court from a decision of the District Judge under Section 16 of the Act.
3. In Jamsang Devabhai v. Goyabhai Kikabhai I.L.R.(1891) 16 Bom. 408 it was held that the decision of the District Court on appeal from the Talukdari Settlement Officer was subject to a second appeal to the High Court. Sargent C J. said (p. 413): 'We think that the effect of the concluding words of Section 16 of Act VI of 1888 is to give the decision of the District Court on appeal from the Talukdari Officer the same character in all respects as a decree from an ordinary suit before a subordinate officer, and that, therefore, like all such decrees, such decision is subject to second appeal to this Court. This view is assisted by the concluding words of Section 21, which shows that they must, if possible, be construed so as not to affect the High Court's jurisdiction.' With the greatest respect we cannot agree. The High Court has jurisdiction to hear second appeals by virtue of the provisions of Section 100 of the Civil Procedure Code, which enacts that save when otherwise expressly provided in the body of the Code or by any other law for the time being in force an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the grounds therein mentioned. Under Section 99 an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. The Talukdari Settlement Officer is not a Court exercising original jurisdiction, and it cannot be said that because Section 16 of the Act gives a right of appeal to the District Judge from his decision, that decision is a decree within the definition in Section 2 (2) of the Civil Procedure Code. The District Court hears the appeal as if it wore an appeal from a decree of a Court from whose decision the District Court is authorised to hear appeals, but that is a specific right of appeal based on an analogy, and the analogy cannot be extended further so as to entitle a dissatisfied party to take a second appeal to the High Court.
4. In Hari v. Secretary of State, for India I.L.R.(1903) 27 Bom. 424 : 5 Bom. L.R. 431 it was held that the appellate jurisdiction could only come into play where there had been a decision of a Court, and that although a right of appeal to the High Court was given by Section 48 (II) of the City of Bombay Improvement Trusts Act from a decision of the Tribunal of Appeal if the President granted a certificate, the appeal was not competent because the local legislature had no power to control or affect by these Acts the jurisdiction or procedure of the High Court. Again, under Section 54 of the Land Acquisition Act I of 1894, an appeal lies to the High Court from the award of the Court in any proceedings under the Act, subject to the provisions of the Code of Civil Procedure applicable to appeals from original decrees. For many years appeals were admitted by the Judicial Committee of the Privy Council from appellate decisions of the High Court under that section, but in Rangoon Botatoung Company v. Collector, Rangoon : (1912)14BOMLR833 it was decided that such an appeal was not competent. Lord Macnaghten said (p. 839): ' That section seems to carry the appellants no further. It only applies to proceedings in the course of an appeal to the High Court Its force is exhausted when the appeal to the High Court is heard. Their Lordships cannot accept the argument or suggestion that when once the claimant is admitted to the High Court he has all the rights of an ordinary suitor, including the right to carry an award made in an arbitration as to the value of land taken for public purposes up to this Board as if it were a decree of the High Court made in course of its ordinary jurisdiction.' This decision is directly in point and we must hold that the decision in Jamsang Devahhai v. Goyabhai Kikabhai I.L.R.(1891) 16 Bom. 408 cannot be supported.
5. Whether the decision of the District Court under Section 16 of the Act or the decision of the High Court, assuming a second appeal lies, bars a regular suit on the principle of res judicata was considered in Malubhai v. Sursangji I.L.R.(1905) 30 Bom. 220 ; 7 Bom. L.R. 821.
6. The facts were similar to those in the case before us.
7. There had been an original application to the Talukdari Settlement Officer under Section 11 of the Act. From his decision an appeal was preferred under Section 16 to the District Court and from that decree there was an appeal to the High Court.
8. The question of the competency of the High Court to hear that appeal was considered as concluded by the decision in Jamsang Devabhai v. Goyabhai Kikabhai. The plaintiffs then filed a suit to obtain the final decree of a Court of competent jurisdiction declaring them to be entitled to a share of a talukdari estate It was contended that the decision in the previous proceedings constituted res judicata at any rate so far as concerned the present litigants who were parties to those proceedings. Jenkins C. J. said (p. 224): 'The law of res judicata is to be found in Section 13 of the Civil Procedure Code, and to make its terms applicable it must be shown that the Talukdari Settlement Officer is a Court of jurisdiction competent to try this suit. But this he clearly is not: he is an administrative officer and not a Court: and by no straining of words can he be described as a Court of jurisdiction competent to try this suit.' It was further held, following Toponidhee Dhirj Gir Gosain v. Sreeputty Sahanee I.L.R.(1880) Cal. 832 and Bharasi Lal Chowdhry v. Sarat Chounder Dass I.L.R. (1895) Cal. 415 that in considering a question of res judicata a Court must look to the powers of the Court in which the suit was instituted and not to the powers of the Court by which that suit was decided on appeal. The correctness of those propositions cannot be disputed. Reference may also be made to Section 11, Explanation II, of the Civil Procedure Code. Consequently the principle of res judicata cannot apply to the previous proceedings between the parties to this suit, and the decision of the appellate Court was right.
9. The appeal is dismissed with costs.
10. I agree.
11. I agree.