Henry Richards and Pramada Charan Banerji, J.
1. This appeal arises out of a suit which was brought under the following circumstances. The defendant in the present suit brought a suit in the Revenue Court against the plaintiff in the present suit alleging that he was his sub-tenant and seeking to eject him. The Revenue Court granted him a decree. The defendant in the Revenue Court then brought the present suit in which he claimed that he was entitled to a certain occupancy holding and for possession if he was found not to be in possession. There are other claims which may be disregarded for the purpose of our present judgement. Both the courts below dismissed the plaintiff's claim on the ground that the suit was not maintainable. It was contended that the decision of the Revenue Court operated as res judicata and that in any event the present suit was one which could not be maintained in a Civil Court.
2. On second appeal a learned Judge of this Court held with some reluctance that having regard to the rulings of this Court the decision of the court below was wrong, and he accordingly allowed the appeal and remanded the suit for disposal on the merits. It seems. to us that the decision of the learned Judge of this Court was correct.
3. The plaintiff in the present suit does not allege the existence of the relationship of landlord and tenant between himself and the defendant. His claim is that he is the owner of a certain occupancy tenancy and that the defendant is a trespasser. True it is that if the plaintiff in the present suit is successful the decision in his favour will be inconsistent with the decision of the Revenue Court in favour of the defendant. It seems to us, however, quite clear that the decision of the Revenue Court cannot be relied upon as res judicata because the Revenue Court was not competent to try the present suit. If the decision of the Revenue Court cannot be successfully pleaded as res judicata then that decision does not render the present suit unmaintainable.
4. It is next contended that the existing relation between the plaintiff and defendant is one of the matters which could be decided under Section 95 of the Tenancy Act, In our opinion this section deals with questions arising between landlord and tenant and not between rival claimants to a tenancy. We have already decided the very point in the case of Jagannath v. Ajudhia Singh (1912) I.L.R. 35 All. 14.
5. The decision in the case of Diwan Singh v. Randhera (1914) 12 A.L.J. 1322, is relied upon by the appellant. The learned Judge in that case seems to have been of opinion that the question of title to an occupancy holding arising between rival claimants could be dealt with by the Revenue Court under Section 95 of the Tenancy Act. The attention of the learned Judge does not appear to have been drawn to the decision in Jagannath v. Ajudhia Singh (1912) I.L.R. 35 All. and it is certainly inconsistent with it. We dismiss the appeal but without costs as no one appears for the other side.