1. I am not very well able to reconcile the first and last grounds of the appeal. In the first it is contended that no question of title by right of succession was directly at issue. In the last it is admitted that the point for determination was whether the last tenant had left an heir who could legally claim a right of possession of the land. The real question raised, tried, and decided in the application made by Musammat Sukhia in the Revenue Court, under Clause (n), Section 95 of Act XVIII of 1873, was whether she was Khedu Kuari's widow and heir. Such she claimed to be, and because as such she was entitled to retain his holding, she alleged her dispossession by Raja Shimabhu Narain Singh to have been wrongful. Her claim rested on no other ground, and if the Revenue Court was not competent to determine the question whether she had or had not a right to the holding by inheritance from her husband, it could not have disposed of her application. But an application such as she made can only, under the provisions of Section 95 of Act XVIII of 1873, be entertained by Courts of Revenue, and no other Courts can take cognizance of any dispute or matter on which such an application might be made. The decision is res judicata and is not open to re-adjudication in the present suit. The provisions of Section 95 seem to be opposed to and to preclude the view that, when questions of right are determined on applications made thereunder, the decisions of the Revenue Courts are not final and may be challenged in the Civil Courts.
2. I would, therefore, affirm the decision of the Division Bench, and dismiss the appeal with costs.
3. Since the hearing of this case, I desire to add that I retain the opinion which I expressed when the case was before the Division Bench. It appears to me that the Full Bench decision of the Presidency High Court in Guru Das Roy v. Ram Narain Mitter 7 W.R. 186 is very much in point. The same principle must apply to this case.
4. The plaintiff sues in the suit before us to eject the defendant from the land in suit as a trespasser. The defendant alleges she is the widow of a former tenant, and has a right to succeed to the tenancy as his heir, and it appears she has already made an application in the Revenue Court to recover possession of the holding. She then alleged that the plaintiff had permitted her to take possession and recognised her tenancy and had subsequently dispossessed her. In that matter her right of succession as heir, and the fact that she had been recognised as a tenant and so succeeded to the holding, were disputed. The Assistant Collector before whom the case came inquired into and decided that she had a right of succession, and that she had taken possession of the holding on the death of her husband, and that plaintiff had given a lease of the holding to others, but he did not decide whether plaintiff had ever recognised her tenancy, and on this finding he allowed her application for recovery of possession. The question before us is whether the suit now brought is cognizable by a Civil Court, and whether the decision of the Revenue Court is final.
5. I cannot see how the matter in dispute in this suit can be otherwise than cognizable by the Civil Court, for it is certainly not a matter on which an application could be made by the plaintiff in the Revenue Court under Section 95 of Act XVIII of 1873. This is no recognised tenancy, but the question at issue is whether defendant is a tenant or trespasser, whether she has a right or not to succeed as heir to the former tenant. This is a question peculiarly within the province of a Civil Court to determine. Nor can I consider that a decision of a Revenue Court which may have been passed on such a point in the course of deciding an application preferred under Section 95, Clause (n), Act XVIII of 1873, will be binding as a final decision of a competent Court. I concur with Mr. Justice SPANKIE in the view he takes. The jurisdiction of the Revenue Court in the matter of an application under Clause (n), Section 95 of Act XVIII of 1873, is, I think, confined to the determination of the immediate matter of the application, the dispossession otherwise than by law of the tenant,--see Khugowlee Singh v. Hossein Bux Khan 7 B.L.R. at p. 679. It seems to me that it was not intended to give the Revenue Court when disposing of such applications a jurisdiction to decide finally questions of title or succession under Hindu law. The Act seems to recognise a distinction between suits and applications, for the former are alone provided by the Act with a regular procedure under chapter vi. In the former also the decisions on questions of title would come before the Civil Court by way of appeal, whereas there is no appeal to a Civil Court in the latter. These are considerations which may make one hesitate in holding that it was intended that decisions should be final on matters outside the immediate object of the application and otherwise peculiarly cognizable by Civil Courts.
6. The appeal should be tried by the lower Appellate Court on the merits.