1. This is a plaintiffs' appeal arising out of a suit for ejectment in the Revenue Court. It appears that on a previous occasion the plaintiffs instituted a suit for ejectment which they withdrew without permission to institute a fresh suit. Subsequently they brought a suit for arrears of rent in the Court of an Assistant Collector, Second Class, and that suit was dismissed on the ground that the defendant-appellant was in fact a mortgagee, and not a tenant, of an agricultural holding. They then brought the present suit for ejectment of the defendant in the Court of an Assistant Collector of the First Class. The Court of first instance held that the decision in the former suit was not a bar to the present claim and decreed the suit on the merits. On appeal the learned District Judge allowed the appeal and dismissed the suit on the only ground that the present suit was barred by Section 11 of the Civil P.C.
2. As to the previous withdrawal of the suit for ejectment, the point is quite clear because the withdrawal of such a suit is not a bar to a subsequent suit. The right to sue for ejectment accrues from year to year, and the present suit is not brought on the same cause of action. Therefore the withdrawal is no bar.
3. As regards the question of res judicata, I am of opinion that the learned Judge has wrongly applied the analogy of cases decided under Section 199 of the Tenancy Act. He has relied on the case of Shahzade Singh v. Mohammad Mehdi Ali Khan (1909) 32 All 8 which turned on a conflict of jurisdiction between the Revenue and the civil Courts. That point does notarise' in this case at all. Here the suits were instituted in the Court of the same class, namely, the Revenue Court. Suits for arrears of rent for an amount less than Rs. 100 fall under group (A) of the Fourth Schedule and are triable by the Assistant Collector of the Second Class. Suits for ejectment fall under group (B) and are triable exclusively by Assistant Collectors of the First Class. Assistant Collectors of the Second Class have no power to try a suit for ejectment at all. It is, therefore, obvious that the present suit is not one which the Assistant Collector of the Second Class who disposed of the previous suit was competent to try. The subject-matters are also different. In the previous suit the subject-matter was the arrears of rent claimed. In the present case the subject-matter' is the holding itself from which the defendant is sought to be ejected. Furthermore, the causes of action are also different, for the arrears of rent were due on account of the period in respect of which the previous suit had been filed, whereas the cause of action for ejectment accrued afresh in 1921. Section 11 of the Civil P.C., therefore, cannot apply, because the condition requiring that the First Court should be competent to try the subsequent suit is not fulfilled in this case.
4. The analogy of cases where a conflict of jurisdiction between the Revenue and Civil Courts arises is quite different, because they are decided on the principle that when a matter within the exclusive jurisdiction of the Revenue Court has been disposed of by that Court, the question should not be re-opened over again in a civil Court. The present case is rather analogous to a case where a suit for arrears of rent is first dismissed by a Munsif and then a suit for recovery of possession of the property filed in the Court of the Subordinate Judge is held not to be barred: vide the case of Run Bahadur Singh v. Lacho Koer (1885) 11 Cal 301. This view of mine is supported by the case of Sunder Lal v. Bhup Singh AIR 1924 All 466.
5. As the appeal has been disposed of on a preliminary point, I set aside the decree of the lower appellate Court and send the case back to that Court for disposal according to law.
6. Costs of this appeal will abide the event, which will include fees on the higher scale.