1. This appeal raises a point of law which is very interesting and which is not covered by any authority which may have been laid down before me, though many cases to be presently mentioned have been cited before me.
2. The facts are these: The appellant who was the plaintiff in the Court of first instance instituted the suit for ejectment of the respondent, on the ground that he was her (plaintiff's) tenant by virtue of holding certain lands, as pasture ground. The suit involved certain plots which had been the subject of a previous litigation between the plaintiff's predecessor-in-title and the defendant. In that suit, the plaintiff's predecessor, Mt. Mubarak-un-nissa, was denied any relief, on the ground that the suit was not maintainable in the revenue Court. The defendant pleaded that the judgment in the former suit of 1912 operated as res judicata in so far as the lands common to the two suits were concerned. This contention found favour with the learned Assistant Collector and he accordingly dismissed the suit, except with regard to two plots of land which were not covered by the previous litigation.
3. On an appeal by the plaintiff, the judgment of the Court below has been affirmed. Hence the appeal by the plaintiff. On behalf of the appellant, the case of Ramnath v. Emperor A.I.R. 1926 All. 281 a decision by Sulaiman, J., of this Court has been relied on. That case was very similar to the present case and the learned Judge held that the fact that, in the earlier litigation, the revenue Court had denied itself jurisdiction did not operate as a bar to the maintenance of the subsequent suit in the revenue Court: The learned Judge relied on a Calcutta case of Alimunissa Chawdhurani v. Shama Charan Roy  32 Cal. 749. That decision has since been overruled by a Bench of five Judges of the Calcutta High Court, vide Tarini Charan Bhattacharjee v. Kedar Nath Haldar : AIR1928Cal777 . The learned District Judge has relied on a decision of this Court in which it was held that a decision on a point of law operates as res judicata between the parties, just as much as a decision on a fact.
4. There can be no doubt that a decision on a point of law is as much binding on the parties, in a subsequent litigation, provided other ingredients for a principle of res judicata to apply are present, as a decision on a point of fact. The question whether the previous decision was right or wrong is entirely irrelevant; but these considerations do not apply where a question of jurisdiction, arises. Looked at closely, a question of jurisdiction, although it may be raised by the defendant, is a question that virtually arises between the plaintiff and the Court itself. The plaintiff invokes the jurisdiction of the Court. The defendant may or may not appear. If the Court finds that it has no jurisdiction to entertain the plaint, it will order the return of it for presentation to the proper Court, The defendant, if he appears, and if he so chooses, may point out to the Court that it has no jurisdiction. A decision on the question of jurisdiction does not affect in any way the status of the parties or the right of one party to obtain redress against the other. The fact that a decision as to jurisdiction is not binding on the parties in a subsequent litigation will be apparent from this. Suppose, instead of instituting the present suit in the revenue Court, the appellant had gone to the civil Court and asked for redress. She could not rely on the decision of the revenue Court in order to induce the civil Court to exercise jurisdiction in the matter of her suit. She could not say that because the decision was given as between herself and the defendant, the presiding officer of the civil Court was bound to exercise jurisdiction although he had not got it. She would not be heard if she said that the defendant was precluded from saying that the revenue Court had no jurisdiction to entertain the suit.
5. As I have said, looked at closely, it will be found that a question of jurisdiction is not a question which may be said to have arisen between the parties.
6. The matter may be considered from another point of view. What is the result of the decision of the former suit? Nobody has yet said that the defendant was not liable to be ejected. Nobody has yet said that the plaintiff has no title. All those questions are still standing out for decision. If those matters are yet unsettled, the plaintiff must have her redress somewhere in some Court. It is conceded that the civil Court has no jurisdiction in the matter. The plaintiff, therefore, cannot, acting under the decision of the former suit in the revenue Court, go to the civil Court and obtain redress. If she goes to the revenue Court, which alone can take cognizance of the suit, she is told that she won't be heard, because of the previous judgment. This state of things cannot be correct and there must be some flaw somewhere in the argument. In my opinion, the flaw lies in this that the decision is not a decision 'between the parties' within the meaning of Section 11, Civil P.C. It is a decision which does not affect either of the parties, as such. It simply affects the then plaintiff, for the time being, inasmuch as he was denied redress at that moment.
7. I hold that the decision in the former suit does not operate as res judicata.
8. The result is that I allow the appeal, modify the decrees of the Courts below and remand the suit through the lower appellate Court to the Court of first instance for disposal according to merits. The costs in this Court and in the lower appellate Court must be paid by the respondent. The rest of the costs will be at the discretion of the Court of first instance.