Banerji and Muhammad Rafiq, JJ.
1. Dharam Jit, an occupancy tenant, made a usufructuary mortgage of his holding to the plaintiff, Karna, on the 16th of April, 1901. Dharam Jit subsequently surrendered his holding to the zamindar, Jotshi Shiva Prakash, in June or July, 1910, Shiva Prakash brought a suit in the Revenue court for the ejectment of Karna and obtained a decree for ejectment on the 29th of November, 1910. Meanwhile on the 12th of September, 1910, Karna brought the suit out of which this appeal has arisen for a declaration that the surrender of his holding by Dharam Jit was not binding on him, the plaintiff.
2. The court of first instance granted the plaintiff a decree, and this decree has been affirmed by the lower appellate court. In our judgment, the decisions of both the courts below are incorrect. The Revenue Court having made a decree for ejectment, and this decree having been carried into effect and the plaintiff having been ejected, the present suit is, in our opinion, not maintainable. The decree of the Revenue Court is binding on the parties and any decree made in this suit would be wholly nugatory. The point is covered by authority, the latest reported case on the subject being Ram Devi Kuari v. Bindesri Upadhya (1911) 8 A.L.J. 940. The judgment of the learned Judge who decided that case was affirmed on appeal under the Letters Patent L.P.A. 127 of 1912, decided on the 26th of July, 1912. In this judgment all the authorities on the point are collected, and we are of opinion that in view of the decision in that case and of some of the cases on which it is based, this appeal must prevail and the plaintiff's suit must fail. We accordingly allow the appeal, set aside the decrees of the courts below and dismiss the plaintiff's suit with costs.