1. The plaintiff, Kunj Behari Lal, purchased an 8 anna share of the Zemindari rights in Mauza Seontha on the 26th April 1915 from Chaudhri Bahadur Singh and brought this suit, under Section 164 of the Agra Tenancy Act, to recover his share of the profits for Rabi 1322, 1323 and 1324 F. from the Lambardar, Ghansham Das, the defendant. The amount claimed was Rs. 1,457-5 4, principal and interest. The only defence with which we are concerned was that the plaintiff had no right to sue for Rabi 1322 and Kharif 1323 F. This defense was based on the following facts. After the sale by Chaudhri Bahadur Singh to the plaintiff, the defendant paid to the plaintiff a sum of money alleged to be equivalent to his share of the profits for these two seasons. This payment was made out of Court. Thereafter, Chaudhri Bahadur Singh sued Ghansham Das, defendant, for the profits of these two seasons and got a decree. Ghansham Das brought a suit in the Civil Court against Kunj Behari Lal to recover Rs. 808-12 6, the amount he bad paid to Kunj Behari Lal as his share of the profits, Rs. 113-7-11, interest, and Rs. 154-12, costs incurred in defending Chaudhri Bahadur Singh's suit, and Rs. 100 'for damages and costs incurred', in all a sum of Rs. 1,177-0-5. In paragraph 6 of the plaint in that suit Ghansham Das stated that Kunj Behari Lal had not purchased the arrears of the profits and, therefore, was not entitled to the sum of Rs. 808-12 which was paid on the 7th February 1916. He stated his cause of action arose on that date and also on the 17th May 1917, the date on which Chaudhri Bahadur Singh's suit for profits was decreed. That suit was referred to arbitration and a decree was passed in accordance with the arbitrator's award for Rs. 950. In the present case the contention was, that the suit is barred by Section 11 of the Code of Civil Procedure and the principle of estoppel.'
2. The Trial Court held that, under the sale-deed of the 26th April 1915, Kunj Behari Lal was entitled to all rents and profits which became due after that date, and that as Kunj Behari Lal was recorded in the khewat an a co-sharer in June 1915 he was prima facie entitled to the profits for both Rabi 1322 and Kharif 1323 F. The plea of res-judicata was disposed of in the following words:
The suit, as appears from the file, was based on the allegations that Kunj Behari Lal and Ram Narain fraudulently persuaded Ghansham Das to pay about Rs. 805 on account of profits and that he was entitled to a refund. The question of profits was not in issue directly and could not have been so in a civil suit.
The arbitration did not rightly enter into the question of plaintiff's right for profits of any part of any year. So that, on merits, that judgment does not operate as res judicata as the three notable ingredients are wanting. The Civil Court decree has only affected so much as to restore the status quo of the parties with regard to the profits of the village.
3. It eventually decreed the plaintiff's suit. The defendant appealed only against so much of the decree as referred to the two seasons above mentioned. The District Judge, after setting out the pleadings in the civil suit, said:
4. One thing, however, is clear that the civil suit decided between the parties the question of the profits of Rabi 1322 and Kharif 1323 F. No doubt the plaintiff then argued that he was not effected by Bahadur Singh's decree against the Lambardar in respect of the profits of 1322 Rabi. Any way, the civil suit was decided on the above allegations and the plaintiff cannot sue again for the profits of Rabi 1322 or Kharif 1323 F. It is true, as the lower Court remarks, that the Civil Court could not have heard the present case, but any Civil Court decision which is not appealed from is binding on a Revenue Court apart from Section 11 of the Code of Civil Procedure. It is binding, in my opinion, even if the Civil Court had no jurisdiction the remedy from a decree so passed only being to appeal. In this case, however, the Civil Court clearly had jurisdiction, as a Revenue Court could not decree the return of profits improperly paid'. He accordingly modified the First Court's decree by dismissing the claim so far as these two seasons were concerned. The plaintiff comes here in appeal and the only ground taken is, that the decree passed in terms of the award in the civil suit instituted by the defendant against the appellant does not bar the trial of the present claim for profits for Rabi 1322 and Kharif 1323 F. It is quite clear and, indeed, admitted that Section 11 of the Code of Civil Procedure does not bar this suit. It is prima facie a suit falling clearly under Section 164 of the Agra Tenancy Act. The plaintiff was a recorded co-sharer and was entitled to sue the Lambardar for the profits for the years in suit and the only Court which had jurisdiction to try the suit is, admittedly, the Revenue Court. Dr. Agarwala, however, although he does not adopt the reasoning of the District Judge, argued that the suit is barred by the broad rule of res judicata quite apart from Section 11. His argument is, that this suit is not in fact, though it is in form, a suit for profits under Section 164 of the Tenancy Act but that it is in reality an attempt to get round a decree of a Civil Court, properly passed, that is, a decree of the Civil Court which had exclusive jurisdiction to pass a decree. Reliance has been placed on a number of rulings of this Court which lay down the proposition that where a Revenue Court has exclusive jurisdiction to pass a particular decree a subsequent suit in a Civil Court although framed in a way that, on the face of it, gives a Civil Court jurisdiction to try it, will not lie, if the real object of the suit is to render nugatory the decree passed by the Revenue Court. It is only necessary to refer to Kishore Singh v. Bahadur Singh 48 Ind. Cas. 470 : 16 A.L.J. 933 : 41 A. 97 which was followed in Mollo v. Ramlal 58 Ind. Cas. 772 : 18 A.L.J. 1030 : 43 A. 191 decided by a Bench of three Judges. These cases are said by Dr. Agarwala to be the converse of the present. He, however, cannot cite any authority for the proposition that the converse is correct law. It seems, however, unnecessary to decide this point in this case because it is impossible to say that the matter now in dispute was decided in the former suit. As the details of the claim quoted above show, several matters not now involved were then in issue. The arbitrator, in accordance with whose award that case was decided, perhaps wisely gave no reasons what so ever for his decision. He simply awarded 'Rs. 950' to the plaintiff. This, no doubt, must have included some at least of the Rs. 80-12-6 but it is impossible to say how math or why.
5. In our opinion, this was an ordinary suit for profits and as such was exclusively triable by the Revenue Court. It was open to the defendant to plead, and, if he could, to prove that he owed nothing or was only partially liable. But we do not think he was entitled to defeat the suit in limine by producing in evidence the decree of a Civil Court in which the defendant was held liable to pay a certain sum of money to the plaintiff. In our opinion the appeal must be allowed and the decree of the District Judge set aside and that of the Trial Court restored with costs throughout, including in this Court fees on the higher scale.