1. I am of opinion that the subordinate Courts were correct in holding that the present suit was not barred by res judicata. The plaintiff, who is obviously a persistent claimant, sued in 1912 in the revenue Court for the ejectment of the defendant from pasture land. The revenue Court refused to take cognizance on the ground that the revenue Court had no jurisdiction. For that reason the plaintiff's suit was dismissed. It is true that the plaint ought to have been returned. This was a defect of procedure, but did not amount to any decision on the matter in issue. There was again litigation in 1922 in the revenue Court, which again denied jurisdiction. Subsequently the present Tenancy Act (3 of 1926) was passed and the revenue Court was definitely given jurisdiction to deal with ejectment suits relating to pasture land. The plaintiff again went to the revenue Court for ejectment of the defendant and succeeded this time. The defence of res judicata was not accepted, and I think rightly.
2. The learned Counsel for the defendant-appellant quoted two rulings, Lakshman Rao v. Balkrishan  33 Bom. 617 and John Lemm v. Thomas Alexander Mitchell  A. C. 400. In both those cases the previous litigation had decided the matter on the merits and the Court had not refused jurisdiction. The observations of their Lordships of the Privy Council at p. 405 in Appeal Cases are very pertinent. The contention was raised on behalf of the plaintiff that the previous judgment only decided a preliminary point as to the jurisdiction of the Court. Their Lordships disagreed with this view of the previous proceedings and held that the substance of the matter was decided in the previous litigation. It appears to be apparent from these words that if in the former litigation the Court had denied jurisdiction there would not have been a bar of res judicata. The same was the case in the Bombay ruling, where in the previous litigation the matter was heard and finally decided. According to the provisions of Section 11, Civil P.C., a Court is forbidden from trying any suit or issue if the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties...and has been heard and finally decided by such Court. The matter in issue between the parties here has never been heard and finally decided in any suit.
3. As regards ground of appeal No. 3, the lower appellate Court has duly dealt with the matter and held against the defendant as a finding of fact. I dismiss the appeal with costs.