Sulaiman, Ag. C.J.
1. This is a plaintiff's appeal arising out of a suit for arrears of rent brought in a revenue Court. The plaintiff took a usufructuary mortgage of a certain share in the village and the mortgage-deed expressly excluded certain sir plots. In respect of that the plaintiff applied to the Collector under Section 36, Land Revenue Act, for an order specifying the land in which ex-proprietary tenancy had been created and fixing the rent payable therefor. The mortgagor apparently did not appear and the case was decided ex parte. The Collector specified some plots and fixed some rents. The present plaintiff, on the strength of that order, brought a suit to recover the rent so fixed through the revenue Court. The defendant contested the claim on the ground that he was not an ex-proprietary tenant but the proprietor of those plots inasmuch as they had never been mortgaged. The first Court decreed the claim, but the District Judge dismissed it. A second appeal came up before a learned Judge of this Court who has referred it to a Bench of two Judges.
2. In Section 44, Land Revenue Act, is laid down the binding character of revenue Court's orders. That section does not expressly mention Section 36 but mentions Sections 40, 41 and 42. It is conceded that Section 41, which relates to disputes regarding boundary, is inapplicable. It cannot be argued that Section 42 applies inasmuch as that section relates to a dispute respecting the class or tenure of a tenant, whereas in the present case the dispute is as to the existence of the tenancy itself. It can only be argued that Section 40 was applicable. Section 36 of the Act is not mentioned in Section 44. The learned vakil for the appellant, who has argued the case with ability, wishes to take advantage of the provisions of Section 44 by bringing in Section 36 through Section 40. But Section 40 itself contains a Sub-clause (3) which does not debar a person from establishing his right to the property in another revenue Court having jurisdiction. It is thus clear to us that an order which was passed by the Collector, even if it be assumed to have been passed under the provisions of Section 36 and Section 40, cannot be a bar to a claim being put forward by the defendant in another revenue Court when that claim relates to a right to property as distinct from the determination of rent.
3. The learned vakil for the appellant relies strongly on the case of Har Prasad v. Khazan  18 A.L.J. 684, but that case is clearly distinguishable because there the subsequent dispute which arose between the parties related to the amount of the rent which had been recorded by the Collector without proper enquiry and did not raise any question of a right to the property itself. Lastly it was contended that the aid of Section 11, Civil P.C., should be invoked. But in view of the express provisions in Sub-clause (3), Section 40, which preserves the right of the defeated party to establish his right to the property itself in another Court of competent jurisdiction, it is impossible to hold that any principle of res judicata applies. The result, therefore, is that this appeal is dismissed with costs including in this Court-fees on the higher scale.