1. Judgment.-This is a plaintiff's appeal arising out of a suit for a declaration of title to certain plots of land of which he claimed to be his occupancy tenant joint with his brother, and for possession. The defendants rested their answer on a plea that there had been a revenue Court decision in an enquiry held in accordance with the terms of Section 42, Land Revenue Act, and that the decision in that case operated as res judicata, and that the civil Court had no jurisdiction to reopen the matter. The trial Court held that by virtue of the provision in Section 40, Clause (3), Land Revenue Act the plaintiff had a right to bring a suit in the civil Court, but found against him that he had not succeeded in proving any interest in the property in suit. The lower appellate Court held in the defendant's favour that the enquiry in the revenue Court had been conducted in accordance with the provisions of Section 42, Land Revenue Act, and that it had in fact amounted to suit under Section 95, Tenancy Act of 1901, and that the decision in that was final, and that the civil Court had no jurisdiction. The facts are not complicated. The name of one Mahesh was entered as the occupancy tenant. During his lifetime the present defendants 1 to 3, who are sons of the sister of Mahesh, claimed to be in joint occupancy with Mahesh and entitled to have their names entered along with Mahesh. Before this proceeding could be concluded Mahesh died and the proceeding was thereupon avowedly converted into a proceeding under Section 42, Land Revenue Act, and the zamindar was made a party. Mahesh Prasad had a brother Madho who had two sons, Kashi, the present plaintiff, and Bindeshri, the present defendant 4. Bindeshri resisted the claim of the present defendants 1 to 3 to be entitled to inherit the occupancy tenancy of Mahesh on the ground that it was really the occupancy tenancy of Madho Prasad, the father of Kashi and Bindeshri. It does not appear that Kashi was specifically an objector in those proceedings, but it has been found that he was in fact assisting Bindeshri in the course of those proceedings and was responsible for the drafting of some of the documents filed, and further it is to be noted that Bindeshri's objection was not one based on his own right alone, but was based on the plea that the occupancy holding belonged to Madho Prasad, the father both of himself and of Kashi. It has therefore not been seriously contended before me that those proceedings were not between the same parties as the present proceedings.
2. In this proceeding under Section 42, Land Revenue Act, the revenue Court must have had to enquire and did enquire which of the contesting parties, the sons of Madho Prasad or the nephews of Mahesh were entitled to the interest in the occupancy holding, and for the purposes of determining the devolution of that interest it had in this case to determine not only which of the contestants if either were sharing in the cultivation at the time of Mahesh's death, but also which of them came within the classes of connexions of the deceased specified in Section 22. It did determine that the occupancy holding could not as an occupancy holding devolve on the sons of Madho, the present plaintiff Kashi and the present defendant 4, Bindeshri, because they were not sharing in the cultivation, though they were among the connexions of the deceased mentioned in Section 22, and it decided that the present defendants 1 to 3, the sister's sons of Mahesh, could not be entitled to the occupancy holding as such because though they had been sharing in the joint cultivation they did not come within the classes of connexions of the deceased specified in Section 22. It, therefore, decided that neither of the contestants was entitled to succeed to the interest in the occupancy holding as such. Finding, however, that the sister's sons of Mahesh, the present defendants 1 to 3, were in possession, it recorded them as non-occupancy tenants.
3. The trial Court held that this finding did not bar the right of Kashi to sue in the civil Court, and it arrived at that finding on a consideration of Section 40, Sub-section (3), and 44, Land Revenue Act. The trial Court as the lower appellate Court says, brushed aside Section 42, Land Revenue Act. The lower appellate Court held that the proceeding conducted by the revenue Court was, as the revenue Court itself described it to be, a proceeding under Section 42, Land Revenue Act, and in view of the fact that the zamindar as well as the claimants to the tenancy were parties to the proceeding it held that it had been converted into a suit under S-95, Tenancy Act, and that the civil Court had no jurisdiction. I am in agreement with the view of the lower appellate Court. I would, however, add one observation. The lower appellate Court was troubled by its view that there was some conflict between Section 42, Land Revenue Act and Section 44 which imports a reference to Section 40,. Clause (3). I do not appreciate myself the suggested difficulty. It appears to me that Section 40 avowedly refers to matters which are decided and have to be decided solely on the basis of possession. The matter before the revenue Court could not be decided solely on the basis of possession. It is, of course, obvious that the final decision at which it arrived to enter the name of the present defendants 1 to 3 as non-occupancy tenants was a decision to which it was led by its finding that defendants 1 to 3 were in actual possession. But the matter which it had to decide and which it did decide firsts was concerned not merely with the question of who was in possession, but with the question on whom did the interest in the occupancy holding devolve by right of succession as that right of title to succession is declared by Section 22, Tenancy Act, I see, therefore, no reason to interfere with the decree of the lower appellate. Court, and the appeal is dismissed with costs.