1. This is a defendant's appeal. Plaintiff sued for a declaration that he was proprietor of a certain grove. His claim has been decreed by both Courts.
2. The facts are that one Sadullah on the 25th July 1889, sold some of his property to one Lala Baburam, whose son Sri Niwas is the present defendant appellant. From that sale-deed Sadullah's share in No. 415/2 was expressly excluded. This share has descended now to the present plaintiff-respondent Azizullah, his son. It appears from the judgment of the lower appellate Court and from a copy of the decree that has been filed (there is no copy of the judgment) that Sri Niwas sued Sadullah for rent and the suit was undefended and Sri Niwas got a decree. Subsequently Sri Niwas sued in the revenue Court to eject Azizullah, Azizullah pleaded proprietary right whereupon the revenue Court referred him to a civil Court. Hence the present suit.
3. The first outstanding fact is that Sri Niwas did not in that suit for ejectment, in order to counteract Azizullah's plea of proprietorship, raise the plea that such a defence was barred by res judicata by the judgment obtained for rent against Azizullah's predecessor, Sadullah. In view of the later history of the case Sri Niwas may, for all the information that is now before me indicates anything to the contrary, have had no grounds really for raising such a plea. Be that as it may, he did not raise it. When Azizullah filed the present suit in the civil Court for a declaration of his title, Sri Niwas again failed to raise any plea of res judicata in his written statement, nor was any issue framed on this point. When Azizullah's suit was decreed by the trial Court, Sri Niwas did not raise any plea of res judicata in the grounds of appeal. The point appears to have been argued in the lower appellate Court which set out as one of the points for determination:
Does the fact of Sri Niwas having obtained a decree for arrears of rent of the plot in dispute against Azizullah operate as res judicata to bar Azizullah's present claim?
4. The learned District Judge deals with this point in a few lines by holding
though the decision of the rent Court is a final rent decision of Azizullah's liability to pay rent for the plot to Sri Niwas, it is only final until a civil Court decided the question of title.
5. In the grounds of appeal to this Court the plea of res judicata has been specifically taken.
6. The other plea relating to Section 233(k) of the Land Revenue Act was not specifically pressed. It formed the subject of an issue in the trial Court but it was clearly also not pressed in the lower appellate Court.
7. Two points have, however, been pressed before me. First, that the civil Court has no jurisdiction to try this question of proprietary right, in that by coming to a decision thereon in favour of the plaintiff it would in fact be overruling the decision of the revenue Court, and reliance is placed on Lal Singh v. Khaliq Singh  31 All. 323 and certain other cases not so directly in point but based on a similar principle. Those cases are clearly distinguishable from the present in which the revenue Court has definitely refused to exercise its jurisdiction in the matter and has specifically, by referring the present plaintiff to the civil Court, invited the civil Court to exercise jurisdiction.
8. The second point urged is that the plaintiff's suit is barred by res judicata. I have already pointed out that the defendant Sri Niwas did not raise this plea when he could have done so in the revenue Court and even refrained from raising it in his written statement, from asking for an issue to be framed in regard to it, or from making it a ground of appeal. He was allowed to argue it in the lower appellate Court, but it was there rejected. I should in any case have had very great doubts as to whether I ought to allow him to raise it now in second appeal, but in any case the appellant Sri Niwas has not provided the Court with any such material as would justify me in giving effect to the plea. There is a copy of a decree on the file obtained by Sri Niwas against Sadullah, but there is no copy of the judgment, and it is, therefore, quite impossible to tell under exactly what circumstances the previous suit was brought and decreed. For both these reasons I reject the plea here in second appeal.
9. The result is that the appeal must be dismissed and is dismissed accordingly with costs including counsel's fees on the higher scale.