Satish Chandra, J.
1. This appeal arises out of a suit for ei'ectment of the respondent Bir Sahai under Section 180 of the U.P. Tenancy Act.
2. It appears that the colonization plot No. 12 was settled with Bir Sahai in 1951 by the Administrative Officer. Colonization Department. District Nainital. According to Bir Sahai, plot No. 12 consisted of revenue plots Nos. 101 and 105. Disputes arose between Bir Sahai respondent and Man Singh appellant in regard to a portion of plot No. 105. The appellant claimed to be hereditary tenant of 15 Bighas and odd area of plot No. 105. On 2nd November, 1957. Bir Sahai filed a suit No. 279 of 1957 in the Court of the Munsif. Nainital, for an injunction. He arrayed the Administrative Officer. Colonization Department and the appellant as defendants to the suit. The prayer was that the defendants be restrained from forcibly dispossessing the plaintiff from Colonization Plot No. 12. The appellant contested the suit. According to him, a 15 Bigha area of plot No. 105 was not part of colonization plot No. 12 and on 20th November, 1957, this area of plot No. 105 had been allotted to Mm by the Administrative Officer. Colonization Department, and he was the rightful hereditary tenant of this area.
3. The learned Munsif held that Colonization plot No. 12 included the entire area of plots Nos. 101 and 105. The lease in favour of the plaintiff included the entire area of plot No. 105. The Administrative Officer had no power to lease out any part of plot No. 105 to the defendant Man Singh. The allotment in his favour was invalid. Plaintiff Bir Sahai was found to be in possession of the land in dispute. On these findings the suit was decreed. Man Singh preferred an appeal. The learned District Judge confirmed the findings on merits and dismissed the appeal on 8th July, 1959. The appellate decision became final between the parties.
4. Shortly thereafter on 27th October, 1959 the appellant Man Singh filed the present suit under Section 180 of the U.P. Tenancy Act in the Revenue Court for ejectment of the respondent. One of the Pleas raised in defence was that the previous decision in the civil suit operated as res judicata. Thepresent suit was confined to the 15 Bigha area of plot No. 105 which alone was claimed by the plaintiff as his hereditary tenancy. In defence it was pleaded that the plaintiff had no right in the land as the area in dispute had been allotted to him by the Administrative Officer.
5. The Revenue Court held that Section 288 of the U.P. Tenancy Act provided that when an issue of tenancy right arises in a civil suit, the Civil Court should refer it to the revenue court for findings. The learned Munsif had no jurisdiction to decide that issue himself. The decree passed by him was without jurisdiction and hence did not operate as res judioata. Going into the merits of the case the Assistant Collector held that the allotment in favour of the defendant did not include the area claimed by the plaintiff appellant On these findings the suit for ejectment of Bir Sahai from plot No. 105, measuring 15.3 Bighas was decreed. This decree was maintained in appeal as well as in second appeal. Aggrieved, Bir Sahai instituted a writ petition in this Court. A learned single Judge held that the decision of the Civil Court in the previous suit operated as res judicata under the doctrine of res judicata. It was also observed that since the appellant could raise this point in the previous case but for reasons best known to him he did not raise this point he could not be allowed to raise it in the present case. It was held that the non-reference of the issue to the Revenue Court was merely an irregularity which did not affect the jurisdiction. On these findings the writ petition was allowed and the decree was set aside. The matter was sent back to the Board of Revenue for decision in accordance with law. Aggrieved, the plaintiff Man Singh has come up in appeal.
6. Learned counsel for the appellant has made the following submissions :
(1) The previous decision of the Civil Court will not in law, operate as res judicata.
(2) Non-compliance with Section 288 of the U.P. Tenancy Act rendered the civil decision on the issue of tenancy inoperative.
(3) The decision on the issue of tenancy rights in the Civil Court was an issue incidental in that case, as such it will not operate as res iudicata.
(4) The plaintiff-appellant was not barred by constructive res judicata from raising the plea of lack of jurisdiction of the Civil Court in deciding the issue of tenancy rights.
(5) Since the landlord, namely, the State Government was not a party inthe previous suit the decision in that suit on the question of tenancy rights will not operate as res iudicata.
7. In support of the first point, the learned counsel for the appellant placed reliance upon the decision of the Supreme Court in Bhagwan Dayal v. Mst. Reoti Devi, AIR 1962 SC 287. We need not discuss this point elaborately because this point is covered by a Division Bench decision of this Court in Jodhan v. Board of Revenue, 1967 All LJ 32 = (AIR 1967 All 442). In that case after considering the decision of the Supreme Court in Bhagwan Daval AIR 1962 SC 287 as well as a subsequent decision in Jankirama Iyer v. Nilakanta Iyer, AIR 1962 SC 633 as well as the Supreme Court decision in Gulab Chand v. State of Gujarat. AIR 1965 SC 1153, it was held that where neither of the two proceedings or only one of them is a civil suit, the doctrine of res judicata shorn of the limitations imposed by Section 11 is to be applied. Learned counsel pressed upon us that this case requires reconsideration. We are not satisfied that this is a fit case for referring to a larger Bench for reconsideration of the question. In view of this decision, the decision in the previous suit on the question of tenancy right would operate as res judicata in the present revenue suit.
8. Section 288 of the U.P. Tenancy Act provided that if in any suit instituted in the Civil Court any question regarding tenancy right arises, the Civil Court was to frame an issue and submit it for decision to the appropriate revenue court. The finding given by the revenue court was to be binding on the Civil Court and was to be deemed to be part of the finding of the Civil Court for purposes of appeal. The Explanation to Sub-section (1) provided that the plea of tenancy which is clearly untenable and intended to oust the jurisdiction of the Civil Court shall not be deemed to raise a plea of tenancy. In the previous civil suit the defendant had not raised any plea that either the Civil Court had no jurisdiction to try the suit as such or that the issue with respect to the tenancy rights raised by the defendant ought to be referred to the revenue court. The Civil Court may well have considered that the plea was frivolous and need not be sent to the revenue court. The enactment of the Explanation to Section 288 (1) confers a discretion upon the Civil Court on the question of reference of issue relating to tenancy rights. It cannot hence be said that Section 288 lays down a complete and rigid bar upon the Civil Court for deciding a plea of tenancy. If in a particular case a plea of tenancyis decided by the Civil Court that decision cannot be said to be without jurisdiction. At the most it may be said that the Civil Court committed an irregularity of procedure in deciding the case. We are hence unable to accept the submission that non-compliance with Section 288 rendered the decision of the suit without jurisdiction.
9. It was then urged that the plea of tenancy right in the civil suit raised an issue incidental to the case within the meaning of Section 11 and it was not a material issue. We are unable to agree. The pleadings directly raised the issue. An issue was framed upon the point. A finding was given upon it. The principal question raised for decision in the suit was whether the plaintiff or the defendant was the tenants of the area in dispute. It cannot hence be said that the issue was incidental to that suit. It was argued that since the scheme of the Tenancy Act was that the issues of tenancy right were to be tried exclusively by the revenue court, the necessary inference was that the Civil Court had no jurisdiction to try such a suit and therefore whenever such an issue is raised before the Civil Court the issue must be held to be arising incidentally in that suit. Section 288 of the U.P. Tenancy. Act provides a discretion to the Civil Court to decide the issue itself instead of referring it to the revenue court. It cannot hence be said that the Civil Courts are absolutely barred from deciding such an issue. Consequently if such an issue is raised and decided it cannot be said that such an issue was incidental to the case. We do not find any merit in the submission.
10. The point that in the civil suit the Government was not a party and so the decision would not operate as res judicata in the present suit to which the State Government is a party does not appear to have been raised at any stage up-till now. Moreover, the Administrative Officer was acting on behalf of the Government in settling land with the parties. The Administrative Officer granted a lease to the plaintiff as well as to the defendant. The Administrative Officer was acting for the Government. He was made a party. It cannot hence be said that the Government which was landlord was not represented in that suit. Moreover, the Government which is a party to the present suit, has not raised any plea that the Administrative Officer could not or did not represent the interest of the Government.
11. It was then urged that the doctrine of constructive res iudicata will not debar the plaintiff from raising theplea that the decision of the Civil Court in the previous suit was without jurisdiction. Even so, as we have held above the decision of the Civil Court on the plea of tenancy cannot be held to be without jurisdiction. Hence this point presents no difficulty. Moreover, in Janardhan Reddy v. State of Hyderabad. AIR 1951 SC 217, it was held that where the trial Court is not a court of competent jurisdiction or where it has acted without jurisdiction even then if en appeal lies from its decision and an appeal is filed and disposed of by the appellate Court, the jurisdictional defect in trial Court's decision stands cured. If the appellate Court affirms the decision of the trial Court, it may be that it thereby decided wrongly that the trial Court had jurisdiction to try the case but its order cannot be treated as a nullity. In other words the jurisdictional defect if any in the trial Court's decision stands cured after the appellate decision. It cannot be said that the decision will not operate as res judicata on the around of lack of jurisdiction. In this connection reliance was placed for the appellant upon Mathura Prasad Sarjoo Jaiswal v. Dossibai N. B. Jeejeebhoy, AIR 1971 SC 2355, in that case the appellant submitted an application in the court of the Civil Judge that the standard rent of the land be determined under Section 11 of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947. The Civil Judge rejected the application holding that the provisions of that Act were not applicable to open land let for constructing buildings for residence, education etc. etc. On revision the Bombay High Court confirmed this view. In another case the Bombay High Court held that & building lease in respect of an open plot was not excluded from Section 6(1) of the Act. This latter decision of the Bombay High Court was affirmed by the Supreme Court in Mrs. Dossibai N.B. Jeejeebhoy v. Khanchand Gorumal, AIR 1966 SC 1939. After the second set of decision by the Bombay High Court, the appellant made a fresh petition in the court of the Small Causes, Bombay for an order to determine the standard rent of the premises. The application was rejected on the ground that the previous decision operated as res judicata. This order was confirmed by the High Court of Bombay. In this context the Supreme Court observed:
'It is true that in determining the application of the rule of res judicata, the court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not for the same reason be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression 'matter in issue' in Section 11. Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the court or a decision of the court sanctioning something which is illegal, by resorting to the rule of res judicata, a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.'
It will be seen that the Supreme Court was keen to emphasise that the decision of an issue of fact or mixed issue will operate as res judicata but the decision of an issue relating to a pure question of law will not. On the facts of that case it is clear that in the earlier proceeding the trial Court held that it had no jurisdiction to entertain the application and for that reason dismissed it. No issue arising in the case was decided. This case hence deals with a situation different than that in Janardhan Reddy's case. In Janardhan Reddy's case issues arising on facts and law were determined on merits and it was held that even if it be held that the Tribunal had no jurisdiction to decide the case. Yet the decision was valid if it was affirmed in appeal. In Mathura Prasad's case the decision was merely on the interpretation of the statute resulting in the dismissal of the application without entering into the merits of the case. Mathura Prasad's case will hence not apply where the issue has been decided on merits. To that situation Janardhan Reddy's case is more appropriately applicable.
12. In our opinion, none of the points raised in support of the appeal have any merit.
13. The present suit was for ejectment relating to 15.3 Bighas area of plot No. 105. This entire area was included in the previous suit. After the decision in the previous civil suit isheld to operate as res judicata, there is nothing left for decision in this case. In this view the learned single Judge was not right in remanding the case to the Board of Revenue for decision in accordance with law, after the judgment of the Board of Revenue had been quashed.
14. In the result the appeal fails and is accordingly dismissed with costs subject to the observation that the case need not go back to the Board of Revenue for decision afresh. The suit will stand dismissed.