1. The plaintiffs sued for the ejectment of the defendant in the civil Court on the ground that the defendant was a trespasser. The defence was that he was a tenant of the plaintiff. In para. 13 of the written statement it was further submitted that a suit was pending at the time in the revenue Court as between the parties to determine their relative position with respect to the land and that, therefore, the civil suit should he stayed under Section 10, Civil P.C. The Court granted this request and trial was proceeded with after the defendant's suit was finally rejected by the revenue Court. The defendant had sued in the revenue Court for a declaration that he was an occupancy tenant of the land in suit.
2. Both the Subordinate Courts decreed the suit and granted damages for crops of two seasons reaped by the defendant. In the grounds of appeal no question is raised that the trial Court ought to have taken proceedings under Section 202, Tenancy Act. This argument was advanced for the first time to-day. In the trial Court also the defendant accepted it as a fact that the litigation then pending in the revenue Court was based on the same cause of action as in the civil Court, and that the decision of the revenue Court would be binding on the civil Court. Under the circumstances I shall not permit the plea to be taken here that proceedings ought to have been taken by the trial Court under Section 202, Tenancy Act, 1.901.. In this Court there are two conflicting decisions on the point. In the case of Kura Singh v. Challu  33 All. 507, a Bench of two Judges held that even where a matter as to tenancy has been decided by a revenue Court the civil Court is bound to take action under Section 202, Tenancy Act, and leave to the revenue Court to decide whether the point was res judicata or not. Subsequently in the case of Sarju v. Bindesri  11 A.L.J. 691 where it appears the attention of the Court was not drawn to the ruling in Kura Singh v. Challu  33 All. 507, a Bench of two Judges held that the wording of Section 202 raised the inference that section was intended to operate only in oases in which such question had, not already been finally determined between the parties in the revenue Court. The correctness of this decision was accepted in Bhawan v. Madan Mohan  38 All. 533. That case however, proceeded an the ground that circumstances had occurred subsequent to the revenue Court's decision which rendered it necessary to obtain a fresh finding of the revenue Court. Personally I would have been disposed to follow the ruling in Kura Singh v. Challu  33 All. 507, but the appellant here is not entitled to any such relief because of the reasons already given by me. If the defendant had not raised the plea of Section 10 and objected here in the grounds of appeal on the want of proceedings under Section 202, I would have directed proceedings to be taken under Section 202, Tenancy Act. As the pleadings stand I shall not do so.
3. In the first ground of appeal it is argued that the mere fact of the defendant suing under Section 95, Tenancy Act, proved that he was a tenant of the plaintiff. It is sufficient to state this argument to show that it is unsound. In the second ground it is urged that the decision of the Board of Revenue was not properly interpreted because it only related to the occupancy title of the defendant and not to his title as a tenant. Under Section 95 a suit to establish one's right as a non-occupancy tenant can also lie and the dismissal of the plaintiff's suit by the Board of Revenue amounted to a decision that the defendant was not a tenant of the plaintiff of any class whatsoever. In the third ground reference is made to certain documents alleged to have been overlooked by the appellate Court. No such plea was argued here. In the fourth ground facts are discussed as to whether the defendant is a tenant of the plaintiff or not. As already held by me this question has already been decided by the revenue Court against the defendant and that decision is binding on this Court having regard to the pleadings.
4. As to the fifth ground of the trial Court refusing adjournment no argument was addressed to me. The sixth ground of appeal as to damages must prevail. It is true that the Subordinate Courts have assessed damages and the decision is not a question of fact. The lower appellate Court, however, has overlooked the mistake committed by the trial Court in assessing damages. The price of rice was applied to paddy crop by the trial Court and the lower appellate Court did not discuss this question of mistake. The learned Counsel on the opposite side did not deny the mistake. Under the circumstances the amount of damages awarded to the plaintiff must be reduced by one-halt. In the result I decree the appeal for Rs. 147-4-0 with proportionate costs of all the Courts; otherwise the appeal is dismissed.