1. This appeal and Appeal No. 164 of 1912 can be conveniently disposed of by one judgment. It appears that the plaintiff in the present appeal brought a suit to recover possession of certain immoveable property. He alleged his title to be that of an auction-purchaser, who had purchased the property at a sale made by the Court in execution of the mortgage-decree. It was pleaded by the defendants that the particular property, the subject-matter of the suit, was, not included in the mortgage and that it was not purchased by the plaintiff at the auction-sale. A number of issues were struck which were all decided in favour of the plaintiff. On first appeal, a new point was raised, namely, that the defendants were ex-proprietary tenants of the land in question. The Appellate Court, while agreeing with the finding of the Court of first instance generally, remanded the suit so as to enable the defendants to go in to the Revenue Court and have the question whether or not they were tenants there decided. An appeal against this order of remand was taken to this High Court and this Court set aside the order of the remand and directed the Subordinate Judge to proceed to determine the case upon the issues originally struck. These issues, as already mentioned, have already been decided for the most part in favour of the plaintiff and the only issue which remained was the question of mesne profits. In the meantime, however, and before the Subordinate Judge could make a decree in the plaintiff's favour, the defendants had brought a suit in the Revenue Court in which they had succeeded in getting a declaration that they were ex-proprietary tenants of the land in question. This decision of the Revenue Court was taken in first appeal to the District Judge who confirmed the decision of the Court of first instance. The Second Appeal No. 164 of 1912 arises out of this last mentioned suit. The decision of the Revenue Court, subsequently affirmed by the District Judge, was given effect to by the Subordinate Judge and on the strength of that decree, he dismissed the plaintiff's claim for possession.
2. It is argued, in the first place, that the Subordinate Judge ought to have paid no regard whatever to the decree of the Revenue Court on the ground that when the case was remanded by the High Court, the only matter left for disposal was the question of mesne profits. In our opinion, this contention is not sound. It is quite true that this High Court, by setting aside the order of remand of the Subordinate Judge, refused to allow the defendants any time to bring their suit in the Revenue Court. The defendants, however, were able to get this decree in their favour from the Revenue Court before the Civil suit was disposed of, and we, therefore, think that the Civil Court was bound to take cognizance of the decree of the Revenue Court in matter which it was competent and had full jurisdiction to decide. Had is not done so, the result would have been that a new suit would be brought and the parties involved in further litigation.
3. The next point which was urged is, that the Revenue Court and the learned District Judge were both wrong in coming to the conclusion that the property in question was the sir of the defendants in the present suit. So far as this question is a question of fact, we are bound by the finding of the District Judge in second appeal. It is contended, however, that he was wrong in point of law and it was strongly urged by the learned Vakil for the appellants that the land in question, although originally sir, having been planted with trees lost its character of sir land and became a grove, and that, consequently the defendants could not be ex-proprietary tenants thereof. We agree with the Assistant Collector and also the District Judge that the planting of trees does not necessarily mean that the land, which admittedly was Sir, loses its character as such. 'Sir' has the same meaning in the Tenancy Act as it has in the Land Revenue Act, and in the Land Revenue Act, sir is defined as meaning not only land which has been continuously cultivated but also land which was recorded as sir before the commencement of the Act and has continued to be so recorded. There is a further definition which would include land which, according to the custom of the village, is treated as the special holding of a co-sharer. There can be very little doubt that the land in question was and is held as the sir of the defendants, and furthermore there can be no doubt that it has always been treated as their special holding. We, therefore, agree with the finding of the Revenue Court and the District Judge that the land in question was the sir of the defendants. This being so, it is absolutely clear that under the provisions of the Tenancy Act, on the sale of the proprietary title of the defendants on foot of the mortgage, they became ex-proprietary tenants of the land in question. The dismissal of the plaintiff's suit for possession was, therefore, quite correct.
4. As the objection was not taken as early as it might have been, we think that both parties ought to pay their own costs of the appeal. We accordingly dismiss the appeal but without costs.