1. This is a complicated case in view of the multiplicity of the rulings of this Court, some of which are not easily reconcilable with others.
2. The present defendant No. 1 instituted a suit in the Revenue Court for arrears of rent against the plaintiffs, and the Assistant Collector by a judgment dated the 21st of January 1921 decreed the claim for Rs. 3-5-4. His judgment proceeded mainly on the presumed correctness of the entries of the Revenue papers and his finding in effect was that plot No. 211/3 which was in dispute in that case was a sir plot belonging to the present defendant No. 1. An appeal was filed from that judgment and was pending in the Court of the Colleotor when the present suit was instituted in the Civil Court for a declaration that the said plot No. 211/3 as well as two other plots Nos. 21l/l and 211/2 were occupancy holdings of which the plaintiffs and the defendants were joint tenants. The cause of action alleged in the plaint was the decree for arrears of rent passed by the Assistant Collector which was said not to have become final inasmuch as an appeal from that decree was pending in the Appellate Court on the revenue side.
3. The defendants again asserted that all these three plots were the sir plots of the defendants, the plaintiffs being only shikmi tenants. There were also pleas raised to the effect that the claim was barred by Section 11 of the Code of Civil Procedure as well as by Section 167 of the Agra Tenancy Act.
4. The carned Munsif who tried the case overruled the legal objections and decreed the suit on the merits holding that the plaintiffs and the defendants had a joint interest in the lands which were occupancy holdings. On appeal the findings and the decree of the first Court have been upheld by the learned District Judge.
5. I may mention that, simultaneously with these proceedings, the proceedings in the Revenue Court have continued. After the passing of the first Court's decree the Collector appears to have set aside the decree of the Assistant Collector and to have dismissed the suit for arrears of rent. A second appeal from that order is. I am informed, still pending before the District Judge. It is not quite clear whether the District Judge on the revenue side has or has not stayed proceedings to await the result of the final decision in the civil suit.
6. The main point raised in this appeal is that the claim was barred by Section 167 of the Agra Tenancy Act. In cases arising under this section there have been such a large number of rulings of this Court that it is practically impossible to summarise or even to refer to them. If the matter had been res integrum I would have had no hesitation in saying that the present suit was not cognisable by a Civil Court. Section 167 consists of two parts. The first part directs that 'all suits and applications of the nature specified in the fourth schedule shall be heard and determined by the Revenue Courts.' This apparently gives jurisdiction to the Revenue Courts to try not only suits and applications mentioned in the fourth schedule but also all such as are of the nature specified therein. The second portion of it says that 'no Court other than a Revenue Court shall take cognizance of any dispute or matter in respect of which any such suit or application might be brought or made'. This confers exclusive jurisdiction on the Revenue Courts. And, therefore, all Courts other than Revenue Courts must refrain from trying such questions. It is noteworthy that the expression used is not ' suits and applications' but 'any dispute or matter in respect of which any such suit or application might be brought or made.' The section has been obviously made very comprehensive in order to include all cases in which disputes arise in respect of a matter which can be disposed of by the Revenue Courts. The object of the section to my mind clearly is that all suits, no matter in what way the plaints are framed, should be instituted in a Revenue Court provided the dispute is such as can be disposed of by that Court.
7. If this were the correct view there is no doubt that the true test to apply in all such cases would be to ask the question 'whether the dispute which arises in the present case is one in respect of which any suit or application sould have been brought in the Revenue Court?' It is true that a suit for a mere declaration against the defendant only to the effect that the parties are joint tenants of a holding is not one which falls within the fourth schedule. But if a suit were brought under Section 95 of the Tenancy Act impleading the zemindar and asking for a declaration that the plaintiff was a tenant of the zemindar jointly with the pro forma defendant such a suit would clearly be exclusively triable by the Revenue Courts. It is also apparent that a mere declaration obtained in a Civil Court against the defendant would in no sense be binding on the landlord, who is no party to those proceedings and who may very well not recognise the present plaintiffs as his tenants. As against the landlord the Civil Court decree would be futile and a fresh litigation in the Revenue Court would be necessary. This being so, one would expect that the proper course to adopt in disputes about tenancy rights is to obtain a declaration in the Revenue Court both against the landlord and the rival tenant. In that view of the matter, I would have had no doubt that the dispute which arises in the present suit is one in respect of which a plaint if properly framed, could and ought to have been filed in the Revenue Court.
8. However, sitting as a Single Judge, I am bound to follow Division Bench cases of this Court. The series of authority against my view is overwhelming and I am bound to submit to the rule of law laid down therein. In Bhup v. Ram Lal 11 Ind. Cas. 268 : 8 A.L.J. 1009 : 33 A. 795, Jagannath v. Ajudhia Singh 17 Ind. Cas. 376 : 35 A. 14 : 10 A.L.J. 408, Ganesh v. Kundan 15 Ind. Cas. 83, Inayat-un-nissa v. Salim-un-nissa 29 Ind. Cas. 568, and Najibullah v. Gulsher Khan 1 Ind. Cas. 594 : 31 A. 348 : 6 A.L.J.343 it has been held by this Court that a suit between rival claimants to a tenancy lies exclusively in a Civil Court and that such a suit is not one which is covered by Section 167 of the Agra Tenancy Act. That being the recognised interpretation of Section 167, it must be held that the present suit, being in its nature one for a declaration of title against a rival claimant, was a suit which could only have been brought in the Civil Court.
9. This, however, does not dispose of the whole difficulty as previous to this suit the dispute with regard to plot No. 211/3 had in a different form been raised in a Revenue Court. What I have, therefore, further to see is the legal effect of that previous litigation. Although it has been held that Section 167 of the Agra Tenancy Act does not apply to suits between rival claimants to a tenancy, nevertheless, it has also been held that once a matter has been decided by a Revenue Court it cannot be re-opened in a Civil Court. This view is not based on the provisions of Section 167 nor on the principle of res judicata, but rather on the general ground that the effect of allowing such a thing to be done would be to nullify the decree of the Eevenue Court which is final and binding on the parties. I refrain from referring to any apparent inconsistency. That this is the view of the law is clear from the case of Kishore Singh v. Bahadur Singh 48 Ind. Cas. 470 : 16 A.L.J. 933 : 41 A. 97, which has been followed in the recent Full Bench case of Mollo v. Ram Lal 58 Ind. Cas. 772 : 18 A.L.J. 1030 : 43 A. 191.
10. In the present case, however, the Revenue Court has not yet arrived at any final decision. The matter, as I have remarked above, is still pending before the District Judge. The question is whether this fact makes any difference or not.
11. The present suit relates to three plots Nos. 211/1, 211/3, and 21l/3. It cannot be doubted that, so far as the two former plots are concerned, the previous proceedings in the Revenue Court cannot in view of the rulings of this Court be a bar to the present claim. The decree of the learned District Judge qua these two plots must therefore, stand as being based on a finding of fact which cannot be challenged in second appeal. The contention bf the learned Vakil, can, therefore, be sustained, if at all, in respect of plot No. 211/3 only which was in dispute in the previous proceedings in the Revenue Court.
12. I find, however, that in at least one case Jaigopal Narain Singh v. Umandat 10 Ind. Cas. 573 : 8 A.L.J. 695 at p. 699 a Bench of this Court disposed of a civil suit finally on the ground that, although a similar dispute had been raised in a suit in the Eevenue Court that suit was still pending, as the Board of Revenue in revision hadpostponed their final decision and were a waiting the decision of the civil suit. Whether a valid distinction can be drawn when the matter is pending not in an Appellate but a Revisional Court is not a question which I take upon myself to decide. There is the precedent quoted above which I can follow.
13. I have already remarked that in the previous case the judgment of the learned Assistant Collector proceeded mainly on the presumed correctness of the entries in the revenue papers, whereas the judgment of the Collector on appeal was based entirely on the decree of the Munsif in the civil suit. The only Court which has really gone into the merits of the case thoroughly is the Civil Court and in this civil litigation there are the concurrent findings of two Courts on the merits to the effect that the plaintiff and the defen dant are jointly entitled to the lands which are really occupancy holdings and not sir plots.
14. If it were the fact that the final decision of the Revenue Court has been intentionally withheld with a view to see the result of the Civil Court litigation, I would have no hesitation in affirming the decree of the District Judge and leaving the revenue case to be disposed of in accordance with this decision. As, however, there are no materials on the record which would show to me the stage at which the second appeal before the District Judge has reached, I direct that the parties should file before me affidavits within a month from this date explaining the true situation. If on the perusal of those affidavits I am satisfied that the decision of the other case has been intentionally postponed awaiting the result of this suit I would then pass the final order dismissing the appeal.