1. This appeal arises qui of a suit in which the plaintiffs claimed a declaration of their title to a certain land and ejectment of the defendant. It would seem as if the real facts were that the land originally belonged to the defendant's predecessors, who sold their Zemindari to the plaintiffs or their predecessors-in-title. The plaintiffs allege that the defendant has recently got his name entered as a tenant and that he has laid claim to the property in dispute. The defendant has put in many pleas including a plea of limitation. He also pleaded that the suit was not cognizable in the Civil Court and is barred by res judicata. It appears that the plaintiffs brought a previous suit in the Revenue Court for the ejectment of the defendant. In that suit the plaintiffs stated that the defendant was occupying the land in dispute without their consent and asked that he might be deemed to be a tenant and ejected.
2. The Court of first instance, when hearing the present suit, held that the latter was barred by the rule of res judicata. The lower Appellate Court set aside the decree of the Court of first instance and remanded the case for hearing on the merits. We think that the order of the Court below was correct. If the allegations of the plaintiffs in the present suit turn out to be correct, the claim is clearly one for ejectment against a person who never was a tenant of the plaintiffs. It is urged that the bringing of the previous suit to which we have referred of itself executed the relationship of landlord and tenant between the plaintiffs and the defendant. Section 34 does not say that the relationship of landlord and tenant shall commence before a person occupying the land without the consent of the landlord pays rent, on the contrary the, provisions of the section seem to imply that No. such relationship can commence at least until after rent has been paid or assessed. No doubt the section enables a landlord to recover rent or compensation from a person, who occupies land without his consent, if so he pleases; but the section does not take away the landlord's right of bringing a suit for ejectment in the Civil Court, if he chooses to take that course, without having claimed or received rent. It seems to us, therefore, that the previous litigation in the Revenue Court cannot operate as res judicata or bar the maintenance of the present suit. We do not express any opinion on the merits which, of course, have not been gone into. We dismiss this anneal with costs.