1. This is an appeal from the decree of the Additional District Judge of Gorakhpur giving judgment for the defendant in the suit and reversing the decision of the Munsif who had granted a decree in favour of the plaintiffs. The action was brought by the plaintiffs for a declaration of title and for recovery of possession of certain property. At the date of the last Settlement, the defendant's predecessors-in-title had been recorded in the revenue papers. In 1887 the plaintiffs' predecessors-in-title brought a similar suit to the present against the defendant's predecessors-in-title. In that suit they succeeded, and, it is alleged, obtained possession as the result of the decree in their favour. Inasmuch as they were in possession they did not take the trouble to apply for an alteration in the revenue entries, which, therefore, remained uncorrected. In 1912 disputes having arisen between the plaintiffs and the defendant, as they had arisen between the plaintiffs' predecessors and the defendant's predecessors, the plaintiffs applied to the Assistant Collector for mutation. Either at the request of, as appears to be found by the Additional District Judge, or by the consent of, the parties to that dispute in the Revenue Court, the Assistant Collector referred the matter in dispute to three arbitrators under Section 203 of the Land Revenue Act (Local Act III of 1901). What the ambit of the reference purported to be, there is nothing before me to show. One thing, however, is perfectly clear, viz., that that arbitration related only to, and could relate only to, the question arising for decision in the Revenue Court as to whose name should be placed upon the register. In the result, two of the arbitrators decided against the plaintiffs and one in their favour. Following the decision of the majority of the arbitrators the Assistant Collector rejected the application of the plaintiffs on the 17th of March 1913. On the 2nd of July 1913, the plaintiffs instituted this suit. In the course of his judgment upon facts the learned Munsif before whom that suit originally came held as a fact that 'the defendants had miserably failed to prove their adverse possession over the plaintiffs' land'. That appears to be a finding of fact by a Judicial Tribunal in a Civil Court after hearing the evidence according to law. The learned Additional Judge, against whose judgment this appeal is brought, overruled that finding of fact, not on the evidence which was before the learned Munsif, nor, as I understand it, on evidence which was before him other than by way of record, but on the broad simple ground that the decision of the arbitrators in the Revenue Court was a decision of a competent Court from which no appeal had been brought, which was final and which was binding upon him and upon every other Court, Civil or otherwise. With that decision I find it impossible to agree. It would be surprising if any decision of any Tribunal, charged with the duty of deciding the nature of entries upon a register for the purposes of revenue, should be held to be conclusive between the parties as to their rights to property. Questions of title and rights to property are prima facie matters for the Civil Courts of the country and I should require very strong unambiguous language to satisfy me that any proceeding in a Revenue Court could abrogate the natural right of every citizen to seek redress for wrong in the Civil Courts of the country to which he belongs. It is sought, however, to support the view that an award of this kind ousts the jurisdiction of the Civil Courts by referring to Sections 203 to 207 of the Land Revenue Act. In the first place, it is not immaterial to observe that those sections are contained in Chapter IX of the Act which relates to the procedure of Revenue Courts and Revenue Officers. They are in fact provisions dealing with the machinery in the Revenue Courts and Section 207 undoubtedly provides that in certain circumstances where an award has not been appealed and the decision given in accordance with the award is not otherwise impugned, no person shall institute any suit in the Civil Court for the purpose of setting aside the award or against the arbitrators on account of their award. Speaking for myself if that section stood alone, I should feel considerable difficulty in holding that it was either intended, or could be treated, in the least degree, as effectual, for the purpose of abrogating or destroying the ordinary right of a person to assert his title in a Civil Court. To my mind the language is not only wholly insufficient but is clearly directed to a different set of circumstances; and when attention is directed to the effective part of the enactment which deals with the duties and the acts of the Revenue Courts, included amongst them are found Section 40 and Section 44 which in the clearest possible terms provide that no decision of a Revenue Court shall affect the right of any person to claim and establish in the Civil Court any interest in land. If any interpretation or any guide were required for the right understanding of Section 207, then those two sections make it abundantly clear that Section 207 has not the effect contended for. It was further contended by the respondent's Counsel that this arbitration was entered into by the consent of the plaintiffs and that, therefore, they must be taken to have surrendered their right to come to a Civil Court. I think that this is really the same point in another form because according to Section 203 no arbitration can be ordered except by the consent of parties, but out of respect to the argument addressed to me, I will deal with it in a few words. I quite agree that if consent had been given outside the Act submitting on behalf of both parties the determination of their rights to a special Tribunal such as these arbitrators were, they must be taken to have consented to be bound for all purposes by that special Tribunal and to have surrendered their ordinary rights to come to a Civil Court. There is nothing to show that they did anything of the kind. What was done was done inside the Revenue Act. It was part of the machinery of the Revenue Act, it was part of the procedure provided by the Revenue Act, and all that they consented to, or can be taken to have consented to, in the absence of proof of some special agreement, was that the arbitrators should be substituted for the Collector in the discharge of the duties under the Act. It was, therefore, an act of consent to something within the four corners of the Revenue Act. By giving such consent, the plaintiffs, in my opinion, did not lose the protection given to them by the Act under which their such consent was given and this argument also fails.
2. The result is that the decision of the Court below on the point must be reversed. It is perhaps to be regretted that the materials for the final disposal of this suit are not immediately available. Under the circumstances I have no alternative but to frame an issue and refer it for trial under Order XLI, Rule 25, of the Civil Procedure Code to the Court from whose decree this appeal is brought. It appears to me that the lower Appellate Court has not addressed itself at all to the real question of fact, viz., whether the plaintiffs have been out of possession so as to have lost their title, but has held itself bound by the finding, which, as I have held above, it is not binding upon a Civil Court. The issue will be:
Whether or no the plaintiffs or their predecessors-in-title have been wholly out of possession throughout the period between the 2nd of July 1901 and the 2nd of July 1913 of any, and if so which, of the plots comprised in the land in dispute.
3. Under the circumstances parties ought to be at liberty to produce any material evidence on the above issue. On receipt of findings ten days will be allowed for objections.
4. The lower Appellate Court, unless it is prepared to adopt the findings of fact in the Munsif's Court, should crime to an independent finding upon all the evidence available, without regard to the findings of the majority of the arbitrators.