1. This is an appeal by the defendants against an order of remand. The appellants were at one time in possession of a certain plot of land as tenants of one Din Dayal. Din Dayal took proceedings in the Revenue Court to eject them, on the ground that they were tenants-at-will. The Court of first instance, i.e., the Court of the Assistant Collector, dismissed Din Dayal's suit for ejectment. It was decreed on appeal by the Commissioner, and again dismissed on second appeal by the Board of Revenue. In the meantime, however, the zamindar had taken out execution of the Commissioner's decree and had obtained formal possession. After the decision of the Board of Revenue in their favour, the tenants came to the Revenue Court and asked to be restored to possession. It was held that this application, having been made after the prescribed period of limitation, was not maintainable and it was dismissed accordingly. The present plaintiff is the son of Din Dayal. He has brought this suit in the Civil Court, on the allegation that the practical effect of the proceedings in the Revenue Court, and more particularly of the failure of the tenants to obtain within the prescribed period of limitation the benefit of the Board of Revenue's decision in their favour, had been to extinguish the tenancy. He alleges that he was himself in actual possession of the land in suit, cultivating the same as his khudkasht, when the defendants reentered into forcible possession thereof. He seeks for their ejectment as trespassers. The defendants' reply was to the effect that their tenancy was still subsisting and had not been extinguished by any of the facts relied upon by the plaintiff. The learned Munsif framed a number of issues and came to a decision in favour of the defendants on the question of their being still in possession under a subsisting tenancy. He also found in favour of the plaintiff on a subsidiary question, as to the latter's being entitled to damages on account of forcible possession taken by the defendants. Both parties appealed against this decree. The lower Appellate Court has pointed out that the provisions of Section 202 of the Agra Tenancy Act (Local Act II of 1901) had been overlooked by the Court of first instance. When the defendants met the plaintiff's suit by a plea of the existence of a still subsisting tenancy the position described by Section 202 aforesaid arose, and the provisions of that section ought to have been complied with. In this view the learned Subordinate Judge has set aside the decree of the Court of first instance and has remanded the case to that Court, with directions to begin the trial all over again at the point where that Court went wrong, i.e., the Court of first instance has been directed to pass an order in compliance with the provisions of Section 202 of the Tenancy Act and to suspend all further proceedings until the legal consequences of that order have taken effect.
2. In appeal against this order of remand a formal objection is taken that the order in question is not one which should have been passed, hut that the lower Appellate Court ought, in any view of the case, to have passed ail order itself under the provisions of Section 202 aforesaid. It appears that there are conflicting decisions of the Court on the point; but we are content to refer to the case of Mare v. Gauri Sahai A.W.N. (1905) 46 which commends itself to cm minds. We think it obviously mor3 convenient that the case should be sent back to the Court of first instance to 1 e proceeded with by that Court from the point at which that Court had gone wrong. In the second, place the decision of the lower Appellate Court is assailed on the merits. We have been referred to the reported case of Sarju Missir v. Bendesri Pershad 20 Ind. Cas. 917 : 11 A.L.J. 691. It is contended that the question of the existence of a tenancy, and of the rights of the present appellants as occupancy tenants of the land in suit, have been determined once for all by the decision of the Board of Revenue, that this decision should have been accepted and that there was no room for any order under Section 202 of the Tenancy Act. On' the facts of the present case we do not think that the ruling above referred to is applicable. The decision of the Board of Revenue determines this point, viz., that on the date on which the present plaintiff's father sought the ejectment of the defendants as tenants-at-will, the said defendants were in fact in possession: of the land in suit as occupancy tenants. That point is res judicata between the parties, having been determined by the ultimate Court of competent jurisdiction. The plaintiff's case is that events have taken place since then which have put an end to the tenancy, and that the defendants have re-entered into possession of the land in suit as trespassers, pure and simple. It has to be determined, on the one hand, what is the legal effect d$: the failure of the defendants to obtain within the prescribed period of limitation the benefit of the Board of Revenue's decision in their favour; and, on the other hand, the provisions of Section 13 of the Tenancy Act and their application to the facts of the present case require to be considered. These, however, are points reserved by the Legisilature for the decision of I Revenue Courts. The question must go to those Courts for determination, whether the events which have occurred since the original suit for ejectment was instituted have or have not extinguished the tenancy which the Board of Revenue found to exist. We are satisfied that the order of the lower Appellate Court was right and the direction given by it correct. We, therefore, dismiss this appeal. Under the circumstances we order that costs of this appeal be costs in the cause.