1. This is a defendant's appeal arising out of a suit for a declaration that the lands mentioned in the plaint are owned and possessed by the plaintiffs and the defendants have no longer any connexion with them and in the alternative for the dispossession of the defendants. The defendants pleaded that they were the tenants of the plaintiffs and therefore the Court of first instance referred the issue to the revenue Court under Section 273, Agra, Tenancy Act. The revenue Court did not go into the question of fact on the merits but held that it was bound by a previous decision of the revenue Court dated 4th February 1925 which had been affirmed on appeal and therefore returned the finding that the defendants were the tenants of the plaintiffs. The learned Munsiff was bound to accept that finding and dismissed the suit. On appeal the lower appellate Court has taken a contrary view and come to the conclusion that the revenue Court ought to have decided the case on the merits and not held itself bound by the previous decision.
2. It has accordingly set aside the decree of the Court of first instance and remanded the case to that Court with directions that the issue may be sent back by the learned Munsiff to the Assistant Collector and a finding called for afresh and then the suit be disposed of by the learned Munsiff.
3. Mr. Gaur who has argued the case on behalf of the appellants with great ability has contended before us that the former decision of 4th February 1925, operated as res judicata so far as the Assistant Collector was concerned and that therefore the finding returned by the revenue Court must be accepted.
4. We have got before us the order dated 4th February 1925, as well as that passed on appeal on 20th April 1925, but they do not show specifically under which section of the Land Revenue Act they purported to have been passed. The case was described as one of the correction of jamabandi but an issue as regards possession was framed and decided. The dispute related to the entry of the names in the khatauni jamabandi which is a register maintained by the Collector under Section 32(e) Land Revenue Act. If the matter had been merely a correction of an error in the previously prepared register the case would have fallen under para. 2, Section 33(2), Land Revenue Act. In that case it is conceded that the order could not be binding even on a revenue Court in a subsequent case. Although the section does not expressly say so I am inclined to concede that it contemplates a case where there is no real dispute between the parties and the only question is whether any accidental or clerical error was made in the previously prepared register.
5. Disputed cases relating to the entries in the khatauni arising out of transfers or charges would ordinarily fall under Section 39 of the Act. But sub-C1. 3 of that section provides that all disputed cases shall be referred to the Tahsildar who shall make an enquiry and submit a report and then the Assistant Collector may pass orders thereon. Unfortunately the copies of the judgment filed do not in any way suggest that any report had been submitted by the Tahsildar and it therefore makes it doubtful whether the proceedings were started under Section 39 of the Act.
6. I am however prepared to assume in favour of the appellants that the application which was dealt with on the former occasion was an application under Section 39. The case put forward on behalf of the present plaintiffs who were then the applicants was that about 1920 the lands which had been mortgaged to the present defendants were redeemed and had ceased to be mortgaged lands and had become the khudkasht lands of the applicants and that the applicants had since redemption secured possession over those plots. The learned Assistant Collector held that the possession of the applicants was not at all proved but that on the other hand the defendants objectors had been in possession. He accordingly rejected the application. That order was affirmed on appeal. Now if it were even a disputed case relating to changes affecting interest in a land it seems to me that the order passed by the Collector under Section 39 would not be final and would not operate as res judicata by virtue of Section 44 because the latter section does not mention Section 39 at all. It therefore follows that even in this view of the matter there could be no res judicata.
7. The learned advocate who has argued this case contends that Sections 39 and 42 should be read together and it must be assumed that the Collector decided the dispute respecting the class or tenure, of the tenant. I am unable to accept this argument. The dispute at that time related to the existence of the tenancy itself and not to its class or tenure and was therefore not covered by Section 42 of the Act. In my opinion a clear distinction exists between the case where the tenancy itself is disputed and the case where the tenancy is admitted but its class or tenure is in dispute.
8. If the case did not fall under Section 39 then it might be treated to have been under Section 40(1), Land Revenue Act. No doubt the Board has expressed the view in some cases that this section applies to disputes relating to transfers and succession and not to changes of the character which were the subject matter of the dispute in 1925. The section however is more widely worded and taken literally would include all disputes regarding entries in the annual registers. But even if the case fell under Section 40(1), I am opinion that the provision in Sub-clause 3 of the section would not debar even a revenue Court from trying that question in a subsequent case. It seems to me that if in a mutation proceeding under Section 40(1) the possession of either party is disputed and the revenue Court goes into that question and finds that possession is with one party and maintains his possession and orders the entries in the registers accordingly it is an 'order as to possession' passed under this section within the meaning of Sub-clause 3 with the result that such an order does not debar the defeated person from establishing his right to the property in any civil or revenue Court having jurisdiction. Section 44 also makes an exception in favour of the decisions to which the provisions of Sub-section 3, Section 40 are applicable.
9. I am therefore clearly of opinion that the learned Assistant Collector was wrong in thinking that the matter had already been finally adjudicated between the parties by means of a previous order. He ought to have gone into the question on the merits although in such an enquiry he was entitled to give due weight to the previous decision arrived at between the parties. The order of remand is therefore right and in my opinion the appeal should be dismissed.
10. I agree in the order proposed. The difficulty in the case has arisen largely from the failure of the revenue Courts to state under which section of the Land Revenue Act they passed their orders. The issue seems to be narrowed to three possible sections, viz., Sections 33(2), 39 read with Sections 42 and 40. As to Section 33(2) I am of opinion that this cannot apply to the disputed case. It refers I believe to mere corrections made at the time of preparation of the annual registers and I agree with the view expressed by Mr. Fremantle in Lachman Prasad v. Mt. Farrukh Began Unpub. Dec. of the Board of Rev. Vol. 5 Page 219 that this clause refers to purely clerical errors or undisputed claims. As to Section 39 I am of opinion that this section comes into operation where there is a dispute as to the correct entry of a transfer at the time when the papers are prepared. In such cases the Tahsildar is required to make an enquiry if necessary and submit his proceedings to the Collector who passes the necessary orders. I do not consider that the section would be applicable where, parties bring to light a dispute as to an entry in the papers five years after a change, which is only a change caused by redemption and in the view of the Court in 1915 could not have involved any transfer as the mortgage which was redeemed did not cover the land which was in the occupation of the tenants. Even had Section 39 applied I do not consider that Section 42 would meet this case because the decision of the revenue Courts was not as to the class or tenure of a tenant. The question which they, had to decide was whether the land had passed into the possession of the zamindar, and therefore the tenant's name should be expunged. Thus the only section which I consider applicable is Section 40. This was in my opinion a dispute regarding an entry in the annual rigisters. The finding of the revenue Courts was that the persons in possession were the appellants before us and not the landlords. This was the sole question in issue, for had the landlords been in possession the entry in their favour that they were kabiz would be correct. Clause 3, Section 40 lays down that no order as to possession passed under this section shall debar any person from establishing his right in the Courts. Had this referred solely to Clause 2 of the section surely the words would have been 'no order passed under Clause 2' and not no order passed under this section. Thus the words must apply to both Clause 1 and Clause 2 and they must be taken to cover a case where the order of the Court establishes possession after dispute and such an order may be either under Clause 1 or Clause 2. On this view of the case I find that the orders passed were orders under Section 40, Sub-clause 3, that they are therefore not final orders and that the question may be further litigated. I agree therefore in the order proposed.
11. The appeal is dismissed with costs including in this court-fees on the higher scale.