1. A preliminary objection is taken that no second appeal lias. The decree of the lower Appellate Court has dismissed the plaintiff's suit for rent under Section 77 of the Estates Land Acts (Madras act I of 1908), though it did so solely on the ground that the Revenue Court had no jurisdiction to decide the validity of the resumption relied on by the plaintiff for his claim, which was denied by the defendant, and no finding was arrived at on the merits of the claim. This is not a case falling under Chapter XLIII of the old Code of Civil Procedure (Act XIV of 1882) or the corresponding Order XLIII of the new Code (Act V of 1908), the applicability of which to suits in the Revenue Courts is excluded by Section 192 of the Estates Land Act.
2. The decision in Venkata Bamayya Appa Row v. Veeraswamigadu 45 Ind. Cas. 471 : 23 M.L.T. 251 : 7 L.W. 508 : (1918) M.W.N. 327 on the question of the maintainability of the second appeal, therefore, does not apply. It is, however, suggested that the decision of the lower Appellate Court will not fall within the definition of a decree in the Code of Civil Procedure and hence Section 100 of the Code of Civil Procedure, which alone gives the right of second appeal to this Court, does not apply. We think this argument is unsound. The definition of a decree is wide enough to include the decree in the present case. The learned District Judge has adjudicated that so far as the trial Court as well as his own Court as a Court of Appeal from the Revenue Court are concerned, the right of the plaintiff to the rent claimed is not enforceable : that is conclusive so far as those Courts are concerned, so long as the decree stands. We must, therefore, overrule the preliminary objection.
3. On the merits the judgment of the learned District Judge cannot be supported. On the allegations of the plaintiff the suit was cognizable by the Revenue Court alone and that Court was, therefore, bound to decide for itself any question necessary for the disposal of the case, whether its decision on the point would finally determine the question between the parties so as to make it res judicata or not. The observations in Venkata Ramayya Appa Row v. Veeraswamigadu 45 Ind. Cas. 471 : 41 M.P 554 : 34 M.L.J. 309 : 23 M.L.T. 251 : 7 L.W. 508 : (1918) M.W.N. 327 are clearly in point and the decision in Sethurami Aiyangar v. Subbiah Pillai 42 Ind. Cas. 951 : 41 M.P 121 : 33 M.L.J. 599 is also exactly in point. The cases in Prosunno Coomar Paul v. Koylash Chunder Paul 8 W.R. 328; Khugowlee Singh v. Hossein Bux Khan 15 W.R. 30 : 7 B.L.R. 673 : 6 M.J. 146 : 2 Sar. P.C.J. 645 : 2 Suth. P.C.J. 404 and Mohammad Abul Husan Khan v. Prag 38 Ind. Cas. 814 : 15 A.L.J. 113 : 21 M.L.T. 102 : 20 O.C. 8 : 19 Bom. L.R. 202 : (1917) M.W.N. 232 : 32 M.L.J. 388 : 31 C.W.N. 582 : 26 C.L.J. 165 : 5 O.L.J. 34 cited by the learned Judge have no bearing on the question before us. Following the Madras rulings we must set aside the decree of the District Judge and remand the appeal to him for a fresh disposal according to law. Costs here will abide and follow the result.
4. There will be an order for refund of Court-fees paid in second appeal.