George Knox, J.
1. The plaintiff respondent in this second appeal claims to be co-sharer to the extent of one half share in a patti which consists of 5 biswas in mahal Alaidapur. Mahal Alaidapur consists of two pattis, one the patti just mentioned above, and the second a patti of 15 biswas.
2. Upon plaintiff's instituting the suit, out of which this appeal arises, for his share of the profits which accrued duo and payable on account of the years 1309 to 1311 Fasli, the defendant, now appellant, pleaded inter alia that certain plots which originally formed part of the 15 biswa patti, had been wrongly included in the 5 biswa patti. If these plots were taken out, it would be found that the respondent was entitled to no profits in the years in dispute. The suit was instituted on the 11th day of April, 1905, in the court of the Assistant Collector. This officer without framing any issue upon the plea above mentioned, as raised by the appellant, gave the respondent on the 10th of May 1905, a decree but not for the full amount claimed by him for reasons with which I am not concerned in this appeal.
3. The plaintiff filed an appeal to recover the amount which had not been decreed and the defendant in a memorandum of objections again raised the plea already mentioned. On the 2nd of August 1905, the District Judge by an order passed under Section 566 of the Code of Civil Procedure directed the Assistant Collector to try the issue raised in defendant's written statement and on the 24th of March 1906, he returned a finding to the effect that there was no evidence on the file that there had been any interchange of plots between the two pattis.
4. In the interval, the defendant had sought relief in the Civil Court, and had filed a suit for a declaration that the plots mentioned in his defence in the Revenue Court really belonged to the 15 biswa patti, and on the 19th of March 1906, he got the declaration he had asked for and promptly produced it before the Assistant Collector. That court in spite of this decree found as I have already said that there was no evidence.
5. The District Judge on the 28th of June 1906 accepted the finding of the Assistant Collector, and as regards the decree of the Civil Court, dated 19th March 1906, to which his attention was called, held that until the defendant had got the village records altered in terms of that decree, no effect could be given to it in a suit of this nature, and that the profits must be calculated on the recorded shares as they then stood according to the khewat.
6. The decision of the 19th March 1906, was finally upheld by this Court in Second Appeal on the 6th of May 1908.
7. The defendant has in this Second Appeal which he filed on the 3rd of November 1906, again raised the question regarding the transfer of the plots and contended that the Revenue Courts should have read the entries in the village records subject to the Civil Court's decree.
8. It was at first thought that the decision of the question here raised turned upon the interpretation which should be put upon Clause (3) of Section 201 of Local Act No, II of 1901. That clause has been differently interpreted by learned Judges of this Court--see Dil Kunwar v. Udai Ram and Ors. (1906) I.L.R. 29 All. 148; Dhanka v. Umrao Singh (1907) I.L.R. 30 All. 58 and Banwari Lal and Anr. v. Niadar (1907) I.L.R. 29 All. 158. But in my opinion whichever of these two interpretations be put upon Clause (3) of Section 201, it matters little so far as this appeal is concerned. Before the Assistant Collector made his return to the District Judge on the 24th of March 1906 he had before him in Court and on the file of the record the judgment inter partes of a Court of competent jurisdiction to the effect that the plaintiff had no proprietary right to the plots mentioned in the written statement of the defendant.
9. The concluding words of Section 201 of the Local Act No. II of 1901 in clear terms reserves the right of any person to establish by suit in the Civil Court that the plaintiff who has instituted a suit under the provisions of Chapter XI of Act No. II of 1901 (and the plaintiff in the case was so suing) had not the proprietary rights he claimed to have, at any rate in the whole as he claimed it.
10. We have already in the case of Durga Shanker v. Gur Charan and Anr. Weekly Notes 1906 p. 1 held 'that when as between parties to the revenue suit, a Civil Court of competent jurisdiction has decided the title to the property adversely to the plaintiff who claims profits, the Revenue Court is not competent to ignore that decision.'
11. For these reasons I would reverse the decree of the District Judge on this preliminary point and remand the case under Order XLI, Rule 23, with directions to re-admit the appeal under its original number in the register and to proceed to determine it on its merits.' Under the circumstances costs should abide the result.
12. I concur in the judgment of my learned colleague and in the order proposed by him and have nothing to add.
13. I also concur.
The decree of the District Judge on the preliminary point is reversed and the case remanded under Order XLI, Rule 23 of the Code of Civil Procedure (Act V of 1908) with directions to re-admit the appeal under its original number in the register and to proceed to determine it on the merits. Costs will abide the result.