1. This is a plaintiff's second appeal against a decision of the learned Additional District Judge of Agra, confirming a decree passed by an Assistant Collector of the first class dismissing the plaintiff's claim for ejectment of the defendant under Section 82, Agra Tenancy Act, 1926. The plaintiff-appellant brought a suit under that Act to eject the defendant alleging that the latter was his tenant who had, in contravention of the provisions of the Act, persistently sub-let his holding. The defendant denied that he was a tenant of the plaintiff and alleged that he was a proprietor of the land in dispute. He further pleaded that he was entitled to the benefit of Section 83, Agra Tenancy Act, 1926. The learned Assistant Collector held that the defendant had been sub-letting the land persistently and consequently that he was not entitled to the benefit of Section 83 of the Act. He remitted the issue of proprietorship to the Munsif of the district for determination. The learned Munsif having considered the matter decided that the defendant was the proprietor of the land in suit. The learned Assistant Collector accepted this finding and therefore was bound to hold that the plaintiff's claim to eject the defendant failed. Consequently the suit was dismissed. Against that decision the plaintiff appealed to the learned District Judge who held that the defendant was not a tenant but a proprietor and consequently dismissed the appeal.
2. The case was decided in favour of the defendant by both the lower Courts on the ground that the matter was res judicata because in previous litigation between the parties or their predecessors the defendant had been found to be not a tenant but a proprietor of the land in dispute. It appears that in the year 1918 Panna Lal, son of Daya Kishen, a predecessor-in-title of the plaintiff, brought a suit, No. 492, against the present defendant, for the recovery of arrears of rent, in respect of the disputed plot, in the Court of the Assistant Collector. This Assistant Collector was the Tahsildar of Agra and was an Assistant Collector not of the first class but of the second class. Under the Agra Tenancy Act, 1901, he had jurisdiction to hear this claim for rent and also to decide the question whether the defendant was a tenant or a proprietor of the land in dispute. The learned Assistant Collector found that the defendant was not a tenant but a proprietor of the land and therefore dismissed the suit. The plaintiff appealed first to the Collector and then to the District Judge, but in each case the finding of the trial Court was upheld and the appeals were dismissed. It is therefore clear that in this previous litigation, which commenced in 1918, it had been held that the present defendant was a proprietor of the land and not a tenant of the predecessor of the present plaintiff. There can be no doubt that there was one common issue in the suit of 1918 and in the suit which gives rise to this appeal. The former was a suit for rent, whilst the latter was a suit for ejectment, but in each case the defence was the same, viz., that the defendant was not liable because he was a proprietor of the land and not a tenant of the plaintiff. The question therefore arises whether the Court hearing the second suit was barred from considering the case afresh upon its merits. Both Courts have held that they were so barred.
3. It has been argued before me that the decision appealed against cannot be sustained because the decision of the Assistant Collector of the second class in the former suit could not possibly operate by way of res judicata to bar a decision upon the merits in the subsequent suit. Section 11, Civil P.C., provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court. As I have stated previously, the main issue in both the suits was whether the defendant was a mere tenant or the actual proprietor of the land. In the previous litigation the plaintiff was a predecessor of the present plaintiff and the defendant was the present defendant. Therefore one of the matters in issue in the second suit had been directly and substantially in issue in the former suit which was a suit between the predecessors of the present plaintiff and the actual defendant in the subsequent suit litigating under the same title. However, that is not sufficient to create a bar by res judicata because it is expressly provided by this section that in order that a decision in a former suit may operate as res judicata in a subsequent suit, it is necessary that the Court which tried the former suit was a Court competent to try the subsequent suit. Mere competency to try the issue raised in the subsequent suit is not enough. As stated by their Lordships of the Privy Council in Gokul Mandar v. Pumanund Singh (1902) 29 Cal. 707:
A decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the Judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised. In this respect the enactment goes beyond Section 13 of the previous Act (Act 10 of 1877) and also beyond the law laid down by the Judges in Duchess of Kingstone's case (1776) 2 Smith S.L.C. 10th Ed. 713.
4. Further, it is the competency of the original Court which decided the former suit that must be looked to and not that of the appellate Court in which that suit was ultimately decided on appeal, and in order to determine whether the Court which decided the former suit had jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of that Court at the date of the former suit and not to its jurisdiction at the date of the subsequent suit. It is common ground in this case that an Assistant Collector of the Second Class had no jurisdiction either under the Agra Tenancy Act, 1901, or under the subsequent Act of 1926, to try a claim for ejectment of a tenant. An Assistant Collector of the Second Class could, under the Act of 1901, try a case for rent but suits for ejectment under the 1901 Act, as indeed under the 1926 Act, could be tried by an Assistant Collector of the First Class only. It is therefore clear that the Court which decided the former suit, viz., the suit for arrears of rent was not a Court competent to try the subsequent suit which was a suit for ejectment. It is therefore contended on behalf of the appellant that the decision in the former suit acted in no way as a bar to a decision of the latter suit upon its merits.
5. On the other hand it has been contended by the respondent that the decision in the former suit operated as res judicata because the decisions of both suits must be regarded, not as decisions of revenue Courts but as decisions of civil Courts of competent jurisdiction. Clearly a decision of one civil Court operates as res judicata in a case brought subsequently in another civil Court of equal jurisdiction. Here it is contended that both the revenue Courts must be regarded, for the purposes of this case, as civil Courts of equal jurisdiction and that being so, the former decision operates as a bar to a subsequent decision upon the merits. In support of this contention the respondent has cited a large number of authorities, but it will be only necessary shortly to refer to a few of them because the matter has been considered by a Pull Bench of this Court in Bed Saran Kunwari v. Bhagat Das (1911) 33 All 453. In that case the plaintiff had brought a suit in the revenue Court to eject the defendants who pleaded title in themselves. The Assistant Collector determined that question and held that the plaintiff had failed to prove title as against the defendants. The plaintiff did not appeal from this decree which eventually became final. Later, a subsequent suit was brought by the plaintiff in the civil Court for a declaration of title against the former defendants and certain other persons. It was held by the Pull Bench that the decision of the revenue Court operated as res judicata so far as the original defendants were concerned but not as against those who were no party to the former suit. In their judgment the learned Judges observed:
The decree was pronounced, it is true, by a revenue Court, but by a revenue Court which, as we held in previous decisions and as we now hold, is pro tanto a civil Court of competent jurisdiction, to decide the question of title. The rulings to which we refer will be found mentioned and considered in Bihari v. Sheo Balak (1907) 29 All. 601.
6. There had been a number of cases to the same effect decided by Benches of this Court previous to this Full Bench decision, but I do not think it is necessary to refer to them. This Full Bench case was followed in the year 1922 by a Bench of this Court in Hanumant Singh v. Mt. Jhamola Koer A.I.R. 1922 All. 95 and again in Amar Singh v. Gobind Ram : AIR1927All717 . It is therefore clear that this Court has consistently held that a decision in a former suit in a revenue Court can and frequently does operate as a bar to a subsequent decision upon the same issue in a civil Court. If in the present case the decision in the subsequent suit which gives rise to this appeal must be regarded as a decision by a civil Court of competent jurisdiction, then it might well be said that the Assistant Collector of the First Class was barred by reason of the earlier decision from considering the case upon it merits. In my judgment however it is not open to me to accede to such an argument because this question has already been decided by two learned single Judges of this Court. In both cases the learned Single Judges held that a decision by an Assistant Collector of the Second Class could not operate as res judicata in a subsequent suit brought before an Assistant Collector of the First Class which could not have been heard and determined by an Assistant Collector of the Second Class. The first case in which this was held was the case in Ram Din v. Har Dayal A.I.R. 1923 All. 368 decided by Stuart, J., in the year 1922. He held that a decision in a rent suit decided by an Assistant Collector of the Second Class is not res judicata in the Court of an Assistant Collector of the First Class in a suit for ejectment which the Assistant Collector of the Second Class was not competent to try.
7. The second case was the case in Mt. Kumari v. Adit Misir : AIR1926All34 . This case was heard by Sulaiman, J. (as he then was) in the year 1925. He held that as an Assistant Collector of the Second Class was not competent to try a suit for ejectment; a finding in a suit for arrears of rent tried by an Assistant Collector of the Second Class could not operate as res judicata in a subsequent suit for ejectment inasmuch as the subsequent suit could not have been tried by the Court which tried the previous suit. It is true that both these cases were decided under the Agra Tenancy Act of 1901, but in my view they apply equally to the facts of the present case. In the year 1918, when the Assistant Collector of the Second Class decided the suit for arrears of rent, it is conceded that he had no jurisdiction to decide a suit for ejectment. Neither has he jurisdiction to decide such a suit since the passing of the 1926 Act. In my view this case) cannot be distinguished from the two single Judge cases to which i have referred. Sulaiman, J. (as he then was) considered the principle laid down in the case which decided that a decision of a revenue Court upon a question of title binder Section 199, Agra Tenancy Act, 1901, was a decision of a competent civil Court and therefore operated as res judicata in a subsequent suit brought in a civil Court. He held that those cases had no application to cases where the two suits had been brought in revenue Courts. He observed at p. 380 of Mt. Kumari v. Adit Misir : AIR1926All34 :
The analogy of cases where a conflict of jurisdiction between the revenue and civil Courts arises is quite different, because they are decided on the principle that when a matter within the exclusive jurisdiction of the revenue Court has been disposed of by that Court, the question should not be re-opened over again in a civil Court. The present case is rather analogous to a case where a suit for arrears of rent is first dismissed by a Munsif and then a suit for recovery of possession of the property filed in the Court of the Subordinate Judge is held not to be barred: vide the case Run Bahadur Singh v. Locha Koer (1885) 11 Cal. 301. This view of mine is supported by the case in Sunder Lal v. Bhup Singh A.I.R. 1924 Al.. 466.
8. As there are express decisions which cover this case I feel that I am bound to follow them. The Full Bench decision and the other decisions to which I have referred are not in point and are clearly distinguishable. I therefore hold that the learned Assistant Collector of the First Class in this case was not barred from considering the case on its merits and was wrong in holding that the issue of proprietorship was concluded by the decision in the previous suit of the year 1918. In my judgment the evidence in the subsequent suit ought to have been considered upon its merits and the suit decided accordingly. I may mention that after the decision of the previous suit by the Assistant Collector of the Second Class, application was made by the successful defendant to the revenue Court for correction of the khewat which was dismissed on 30th April 1919. After the decision of the appeal in the previous suit by the District Judge, another application was made for correction of the khewat which was granted by the Assistant Collector and upheld by the Collector. On 2nd April 1925, however, the Commissioner reversed the order and ordered that the defendant's name should remain on the khewat as an occupancy tenant merely. It was not suggested in the Courts below that these proceedings in any way affected the decision of this case and no argument upon the result of these proceedings has been addressed to me. I merely mention them in the event of this case being further argued on appeal. The appeal therefore must be allowed and the decree of the learned Additional District Judge set aside and the case must be sent back to the lower appellate Court for disposal on the merits according to law. The appellant must have the costs of this appeal, but the costs in the lower Courts will abide the event. The court-fee paid in this Court must be refunded. The point raised in this appeal is an important one and I therefore give leave to appeal under the Letters Patent.