1. This is a reference under Rule 17 of the Rules and Orders relating to the Kumaon Division of 1894. The circumstances leading up to the reference are stated fully in the order and need not be repeated. We are asked to give our opinion as to whether a second appeal lay in this case to the Commissioner and if so, whether his decision is correct. Both parties before us admit that the law is as stated in the reference. The main question for decision in the case was whether or not the grant of certain land by Mr. Stowell in 1911 was inconsistent with the general wishes and well-being of the community. The land is admitted to be gouchar or grazing land. There is a large quantity of other land in the village, part of which is, no doubt, available for grazing purposes but part is not available for such purposes as it consists of rocky slopes. The Assistant Collector seems to have been acquainted with the village in question, but he was not prepared to hold that the grant of two small plots, measuring together about two acres, to the defendant would affect the other villagers injuriously. On appeal the Deputy Commissioner, for reasons given by him was, of opinion that there was enough to show that the grant was inconsistent with the general wishes and well-being of the community. He relied on the fact that the amount of land suitable for grazing purposes in the village was small, on the constant and determined effort of the villagers to resist any appropriation of it and lastly on the situation of the land itself and its proximity to the abadi. It seems to us that the question which he decided was one of fact and that his decision ought not to have been disturbed by the Commissioner in second appeal. A point was taken in the memorandum of appeal to the Commissioner which was admissible under Section 100 of the Code of Civil Procedure namely, that the matter was res judicata : but there were no materials on the record for the decision of such a question and it does not appear to have been pressed. The other grounds of appeal were not admissible.
2. Our answer to the reference is that the appeal should have been dismissed by the Commissioner when he discovered that the plea of res judicata could not be substantiated. We see no reason why coats should not follow the event.