Ganga Nath, J.
1. This is a defendants' appeal and arises out of a suit brought against them by the plaintiff-respondent for a, declaration that he (the plaintiff) was the owner in possession of the plots of land described in the plaint and the trees thereon situated in Mauza Narainpur, Tappa Shahpur, and that the defendants had nothing, to do with them. The plaintiff's, case was that his predecessors-in-title were cosharens in the village and the land in dispute was allotted to the plaintiff's predecessors, in partition. The defendants have got their names entered in the revenue papers against the trees on the land in dispute.
2. According to the plaintiff's case, the plaintiff's grandfather and his brother had a share in the village. The plaintiff's grandfather's brother sold his share to Murli Manohar from whom it descended to his widow Mt. Param Jot Kuari. After the sale the village was partitioned and the disputed plots were allotted to the share of Mt. Param Jot Kauri. As the plots in dispute were behind the plaintiff's house, the plaintiff remained in their possession and planted trees on them. On 6th June 1929, the plaintiff obtained the plots in dispute by a deed of exchange executed by Mt. Param Jot Kuari. Thereafter the defendants, applied to the Revenue Court for the entry of their names as grove-holders and the Revenue Court allowed their application. The plaintiff brought this suit for declaration of his proprietary title after the order of the Revenue Court. The defendants contended that they were the owners of the land and the trees in dispute. They stated in Clause (d) of their additional statements:
The plaintiff or his ancestors and the zamindars have nothing to do therewith; nor have they been ever in possession and enjoyment thereof. All the allegations made by the plaintiff to the contrary are evidently wrong and not correct. The contesting defendants are the-owners in possession of the land in dispute and the trees standing thereon as baghdars. The plaintiff has no right to take objection or bring a suit.
3. The trial Court found in favour of the plaintiff and decreed the suit. On appeal, the learned District Judge, Gorakhpur, agreed with the findings of the trial Court and, confirming the decree of the trial Court, dismissed the appeal. Both the Courts, have found concurrently in favour of the plaintiff. The trial Court found that the plaintiff was the owner of the land and the trees and this finding was confirmed by the lower appellate Court.
4. The learned Counsel for the appellants has urged that the order of the Revenue Court about the entry of the defendants' names in the revenue papers bars the present suit. As will appear from the application made by the defendants, it was an application for the correction of jamabandi, under Section 42, Land Revenue Act (3 of 1901), as was stated in the application. The relief sought by the applicants was that their names might be entered as 'tenant-grove-holders' against the land in dispute. The case in the Revenue Court was fought on the basis of possession. In para. 2 of their application the defendant, Kalip Nath Chand stated that he had been in possession over the land in dispute for about 16 years. The application was contested by the plaintiff-respondent. He stated in his written statement that he had been in possession over the land in dispute. The Revenue Court framed the following issues:
(1) Whether defendant 2 (Samar Dhuj Chand) holds the grove in suit as proprietor? (2) Whether the plaintiff is in possession as a grove-holder
5. The first issue was decided against the defendant, Samar Dhuj Chand, and the second issue was decided in favour of the defendants applicants (the appellants). No declaration was made by the Revenue Court as to whether the defendants were the tenants of the plaintiff. The only order passed by the Revenue Court was:
The area shall be recorded as 'grove' inside the abadi and the applicant as the grove-holder.
6. There is nothing in the whole of the order to show who was the landholder. The case in the Revenue Court cannot be regarded by any stretch of imagination as one fox a declaration under Section 121, Tenancy Act. On the other hand, the application itself shows that it was made under Section 42, Land Revenue Act. Though the application was described as one under Section 42, Land Revenue Act. Though the application been made under it, because the applicants did not state that they were the tenants of the opposite parties. Section 42, Land Revenue Act, applies where the tenancy is admitted and the dispute relates to the class or tenure of the tenant. As held in Ramjas Singh v. Ram Harakh Panday 1930 All. 305, a clear distinction exists between the case where the tenancy itself is disputed and the case where the tenancy is admitted, but its class or tenure is in dispute. In the revenue case, the applicants wanted themselves to be entered as grove-holders. The dispute between; the parties in the revenue case was regarding the entries in the annual register. Section 40, Land Revenue Act, lays down that all disputes regarding entries in the annual register shall be decided on the basis of possession. Both the parties, as already stated, fought the case and it was actually decided on the basis of possession.
7. Even if the order of the Revenue Court be regarded as one made under Section 42, Land Revenue Act, it cannot operate as res judicata. In Kashi Prasad v. Ambika Prasad 1930 All 611, it was laid down that the scope of Section 42 was very limited and was limited to the case of a dispute relating to class and tenure. Where the question was, who was the tenant, Section 42 had no relation to such a dispute. It was a mistake to read into Section 42, all the provisions of Section 95, Tenancy Act of 1901, (Section 121, of the present Tenancy Act). It was also held that assuming that the Assistant, Collector's judgment was given under section 42, Land Revenue Act, his decision could not operate as res judicata.
8. As already stated, the defendants do not themselves admit to be the tenants of the plaintiff nor have they so far got it declared. The dispute between the parties, is about the proprietary title of the land and the trees. Both the parties allege themselves to be the proprietors. The matter of proprietary title does not relate to the annual register mentioned in Clause (e), Section 32, Land Revenue Act. It relates to the register mentioned in Clause (a). Whether the order of the Revenue Court be regarded as passed under Section 40 or 42, Land Revenue Act, the order of the Revenue Court would not bar a suit in the Civil Court in view of the provisions of Clause (3), Section 40 or Section 44. I therefore agree with the finding of the lower Court that, the suit is not barred by the order of the Revenue Court passed in the case of the correction of jamabandi. In the face of the findings of fact of the lower Courts, there is no force in the appeal. It is, therefore ordered that the appeal be dismissed with costs and the decree of the lower Court be confirmed.
9. Permission to file a Letters Patent appeal is granted.