1. This is a second appeal by the plaintiffs in a suit for ejectment which was filed in the Court of an Assistant Collector of the First Class. The defendant set up proprietary right in the land. Section 199 of the Tenancy Act requires the Court in such cases either to refer the defendants to the Civil Court or to decide the question of title itself, unless the question has already been determined by a Court of competent jurisdiction. The issue between the parties is whether the question of title had previously been determined by a Court of competent jurisdiction whose decision is conclusive in the present suit. The lower Appellate Court has answered this question in the affirmative. It appears that in the year 1919 the plaintiff filed a suit for arrears of rent against the defendants in the Court of an Assistant Collector of the Second Class. The defendants alleged that they were not tenants but had a proprietary right. The Assistant Collector framed the following issue, 'whether the relationship of landlord and tenant exists between the parties?' This was the sole issue in the case. In the Course of his judgment the Assistant Collector held that the defendants were in possession of the land in suit not as tenants but as owners. His finding on the issue framed by him is embodied in the following sentence: 'I, therefore, hold that the defendants are not tenants of the plaintiffs.'
2. Under ordinary circumstances, the decision of an Assistant Collector of the Second Class would not be res judicata for a suit only triable by an Assistant Collector of the First Class. This is a clear from the language of Section 11, Civil Procedure Code, which requires that the Court which decides the former suit shall be a Court competent to try the subsequent suit and it has also been directly held in Ram Gobind v. Sri Thakurji Maharaj 19 Ind. Cas. 126 : 11 A.L.J. 231. In this case, however, if a question of title was decided by the Assistant Collector under Section 199 of the Tenancy Act his decision under the provisions of that section is treated as equivalent to the decision of a Civil Court. The Civil Court which would have been competent to decide the question of title if the Assistant Collector had referred it under Clause (a) of the section instead of deciding it himself under Clause (b) would have been the Court of the Munsif. The Court to which a reference would have had to be made in the present case was also the Court of the Munsif. In deciding the question of title the Assistant Collector was not acting as a Revenue Court but as a Civil Court of the lowest grade, and his proceedings were in all respects governed by the Civil Procedure Code. It is difficult, therefore, to see how the Courts below could avoid the conclusion, when the question of title was raised before them in a second suit, that it had already been decided by a Court of competent jurisdiction in the former litigation, and the case in Shazade Singh v. Mohammad Mehdi Ali Khan 3 Ind. Cas. 954 : 6 A.L.J. 917 : 32 A. 8 relied on by the District Judge is direct authority for this view.
3. In view of the form of the issue raised by the Assistant Collector in the former suit I had at first some doubt as to whether the Assistant Collector really did decide a question of title. It is true that this point had not been raised by the appellant in this Court and was not suggested in the Court below. In form, the Assistant Collector restricted the issue to the question whether the relationship of landlord and tenant existed. It is clear, however, that in the particular circumstances of this case the decision of that issue necessarily involved the question of title. The only ground on which the defendants denied the relationship was that they themselves were the owners, and it was on a definite finding of their proprietary right that the Assistant Collector decided the suit. It has been pointed out on behalf of the appellants that in that litigation the plaintiffs claimed in the alternative either under a direct agreement of tenancy or, in case the defendants were occupying the land without right under Section 34 of the Tenancy Act. The suit, therefore, could not have been dismissed except on a finding that the plaintiffs had not the proprietary right which they claimed.
4. For these reasons I affirm the decision of the Court below and dismiss the appeal with costs.