1. The plaintiffs, the defend, ants and others are recorded co sharers in Taluqa Sultanpur in the Azamgarh District. Plot No. 1871/2 is occupied and cultivated by the plaintiffs, Parmeshar Mal, father of the present defendant, Ram Khelawan Mal, instituted a suit against the plaintiffs in 1915 asserting that he was one of the proprietors in the plot in question and that Sarabjit Mal, one of the plaintiffs, was a tenant. Sarabjit Mal in that suit asserted proprietary title. The suit was decreed against him for six annas, arrears of rent, The suit was in the Court of an Assistant Collector of the Second Class. In 1917 the defendant, Ram Khelawan Mal, appears to have obtained an ex parts decree for rent in respect of the same plot in the Court of an Assistant Collector of the Second Class against the plaintiffs, In 1919 the defendant then sued to eject the plaintiffs from this plot under Section 58 of the Tenancy Act, The plaintiffs asserting their proprietary title, the Assistant Collector of the First Class who was trying the suit referred them to a Civil Court under the provisions of Section 199 of the Tenancy Act. They instituted a suit within three months according to that order. The Civil Courts have refused to adjudicate upon their title, holding that the suit is barred under Section 11 of the Code of Civil Procedure on the principle of res judicata. They appeal here.
2. No question of res judicata properly arises. In such asses the question is not whether the suit is barred on the principles of res judicata, for a Revenue Court decision cannot operate as res judicata in a Civil Court unless the case comes within the purview of Sections 199 to 201 of the Tenancy Act, hot whether the point before the Civil Court has been decided by a Rent Court under its exclusive jurisdiction in such a manner as prevents the Civil Court having jurisdiction to decide it. The ratio decidendi is given in Ram Singh v. Girraj Singh 26 Ind. Cas. 731 : 37 A. 41 : 12 A. L. J. 1252.
3. Now, it is clear enough that as against the actual defendants and as between parties the relationship of landlord and tenant in respect of this plot was held to exist in so far as the Courts of the Assistant Collators of the Second Class are concerned. The 1915 and 1917 decisions certainly operated as res judicata binding the Courts of the Assistant Collectors of the Second Class in suits for arrears of rent until the matter was decided by a higher Court, but when the matter of the plaintiff's ejectment under Section 58 of the Tenancy Act same before an Assistant Collector of the First Class he was in no way bound by the decisions of the Assistant Collector of the Second Class to find that the relationship of landlord and tenant existed between the parties, and it was open to him either to determine himself when the plaintiffs set up proprietary right, that the relationship of landlord and tenant did or did not exist, or to refer the plaintiff under Section 199 of the Tenancy Act to the Civil Court for a decision as to whether they had proprietary, right in plot No. 1871/2. He took the latter course, it is not open to the Civil Courts to refuse to determine the point. The point as far as they are concerned is not determined by ret judicata and the point under the Tenancy Act itself is within their jurisdiction, I, therefore, set aside the decisions of both the Courts below and send the case back to be restored to its original number and determined on its merits by the Munsif of Mahammadabad Gohna, Azamgarh District. Costs here and hereafter will follow the result.