1. The facts of the suit out of which this appeal arises are these.--Har Dayal cultivates one bigha of land on a Rs. 10 rent in Allapur village in Budaun District. In 1920 Ram Din, zemindar of the village, sued Har Dayal for two years rent and interest in the Court of an Assistant Collector of the Second Class. Ram Din asserted that he was the zamindar of the plot and that the plot was his sir and that Har Dayal was his sub-tenant. Har Dayal denied this. The Assistant Collector, Second Class, found that the land in question was the sir of Ram Din which Har Dayal cultivated as his sub-tenant on a rent of Rs. 10 a year, and decreed the suit accordingly. That decision became final.
2. The suit out of which this present appeal arises had apparently been filed before the suit for arrears of rent. It was filed on the 29th September 1919. In this, Ram Din and two women called Reoti and Chameli sued Har Dayal in the Court of an Assistant Collector, First Class, for the ejectment of Har Dayal from the same plot in respect of which the suit was brought for arrears of rent. Har Dayal set up a plea that he was the zemindar of the plot and that the plot was his khudkasht. It is not true that he was the zemindar. His family had been zemindars in the village but had lost their proprietary rights long before 1919. On the 30th June 1920 the Assistant Collector, First Class, decided, some two months after the arrears of rent suit had been decided, that the plaintiffs were zemindars, that the land in question was their sir and that Har Dayal was a sub-tenant. Har Dayal again asserting that the land was his khudkasht appealed to the District Judge who allowed his appeal. The District Judge found on the facts that the land in question was not the plaintiffs' 'sir', that Har Dayal and his predecessors cultivated the land in question for more than 50 consecutive years and that Har Dayal had ex-proprietary rights therein. He, therefore, dismissed the suit.
3. The present appeal is preferred upon the following grounds;--That no appeal lay to the District Judge; that it was concluded by res judicata; that the land in question was the sir of the appellants, and that Har Dayal was sub-tenant that the Judge had made out a new case for Har Dayal which he did not set up for himself; and that the Judge could not legally decide the nature of Har Dayal's holding.
4. In regard to the first point it appears to me that on the authority of the Full Bench decision in Bindeshwari v. Gokul 22 Ind. Cas. 964 : 36 A. 183 : 12 A.L.J. 251 (F.B.), an appeal lay to the District Judge.
5. In regard to the second point, in the first place, Ram Din alone was plaintiff in the arrears of rent suit, Reoti and Chameli were not parties to that suit. But apart from that point, can it be held that a decision of the Court of an Assistant Collector, Second Class, can operate as res judicata in the Court of an Assistant Collector, First Class, when the Court of the Assistant Collector, Second Class, is not competent to try the subsequent suit in which the plea of res judicata is raised? It appears to me that on the plain wording of Section 11 that question must be answered in the negative. An Assistant Collector, Second Class, is not competent to hear suits for ejectment.
6. It has been pressed on me by the learned Counsel for the appellant that the decision in Shahzade Singh v. Muhammad Mehdi Ali Khan 3 Ind. Cas. 954 : 32 A. 8 : 6 A.L.J. 917 lays down a different view. If it laid down a different view I should of course follow the view laid down, as that decision is the decision of a Bench. But I do not understand that decision to touch the point. What it laid down is this: That in a Civil Court a question of title decided by a Rent Court would be binding as between the same parties on the principle of res judicata as the decision on the question of title would be considered as the decision of a Civil Court whatever be the jurisdiction of the Rent Court. That is a different proposition. There is nothing in that decision to justify a departure from the actual law that a previous decision only binds in a subsequent suit when the Court which passed the decision was competent to try the subsequent suit. I, therefore, decide that the learned District Judge was not bound, on the principle of res judicata, to hold that the land in question was the sir of the plaintiffs and that the defendants was their sub-tenant. I do not consider that the learned District Judge made out a new case for the defendant. It was his duty to see whether the plaintiffs had made out a case to eject the defendant. He found on facts that they had not made out such a case.
7. In regard to the last point, it was unnecessary for the learned District Judge to decide for the purposes of the decision of the suit, that the defendant had ex-proprietary rights and it was not open to the learned District Judge to lay down what rights he did possess as the determination of the class of tenancy is a matter reserved for the Revenue Courts alone.
8. But in so far as his decision is that the suit for ejectment should be dismissed, it must stand. I, therefore, dismiss the appeal with costs.