Alfred Henry Lionel Leach, C.J.
1. This appeal raises a difficult question of law. In order to understand the position we have to go back to the year 1921. In that year the zamindar of Gampalagudem filed a suit, O.S. No. 352 of 1921, in the Court of the District Munsiff of Bezwada for a declaration that the Government had illegally enfranchised the lands referred to in the plaint. They asked for an injunction restraining the Government, the first defendant, from collecting quit rent from the second and third defendants in whose favour a patta had been granted by the Government. Against the tenants the plaintiff asked for a decree for possession of the lands and mesne profits. The plaintiff's case was that the lands were the subject-matter of a post-settlement service inam granted to the predecessor-in-title of the second and third defendants. The Government defended the suit on the ground that the inam was in fact a pre-settlement inam and consequentlythere had been a lawful enfranchisement. The second and third defendants supported the Government in this contention. On the 22nd December, 1922, the District Munsiff granted a decree as prayed. The Government filed an appeal to the Court of the Subordinate Judge, as also did the tenants. By a judgment dated the 26th February, 1926, the Subordinate Judge confirmed the decree of the District Munsiff so far as it affected the Government. So far as the tenants were concerned he accepted the District Munsiff's declaration that they were liable to pay rent to the zamindars in respect of the lands held by them, in other words, he found that they were held under a post-settlement inam; but he varied the District Munsiff's direction for delivery of possession as he considered that the inam covered merely the melwaram right. The direction for payment of mesne profits was vacated. The Government appealed to this Court in Second Appeal No. 280 of 1927. The plaintiffs and the tenant-defendants were made respondents to the appeal. It was heard by Ramesam. and Madhavan Nair, JJ., along with 189 other second appeals, in which the same questions were involved. By judgments dated the 18th December, 1931, covering all the appeals the learned Judges held that the Subordinate Judge had erred in treating the inams as post-settlement inams. They found as a fact that they were all pre-settlement inams which meant that the title to the lands was vested in the Government. This decision was binding on the Government and on the respondents to the appeals. The learned Judges, however, inconsistently directed that the decrees passed by the Subordinate Judge against the inamdars should stand.
2. During the hearing of the 190 appeals certain tenants who had not appealed from the decrees passed against them by the District Munsiff and were not parties to the second appeals filed by the Government, applied to the Court to be made parties. Their applications were dismissed. In the part of his judgment which dealt with these applications, Ramesam, J., acknowledged that on the findings arrived by the Court, strictly speaking the zamindar's suits should be dismissed, not only against the Government, but also against the inamdars. It was suspected that some of them had been colluding with the zamindars against the Government. In the circumstances the Court was not prepared to interfere with the decrees of the Subordinate Judge to the extent to which they affected the tenants. The learned Judge added that the only result of the Court's conclusions in the second Appeals was that the zamindar's suits against Government were dismissed, ' but they get a decree for possession against the village servants and if they submit to it it is their own fault.' The words ' if they submit to it ' presumably relate to the inamdars who had not appealed against the decrees of the District Munsiff.
3. As a result of the finding of Ramesam and Madhavan Nair, JJ., that the title to the land was vested with the Government and not in the zamindar the second and third defendants in O.S. No. 352 of 1921 refused to pay rent to the zamindar and paid quit rent to Government. On the 21st September, 1934, the present plaintiffs, the successors to the zamindari, instituted a rent suit in the Revenue Court against the second defendant for rent claimed to be due in respect of faslis 1341, 1342 and 1343 corresponding to the years 1931-32, 1932-33 and 1933-34. The second defendant raised the objections which were raised by him in O.S. No. 352 of 1921, but they were overruled and the suit was decreed. He appealed to the District Judge under Section 192 of the Madras Estates Land Act, read with Section 96 of the Code of Civil Procedure. The appeal was dismissed and no second appeal was filed. On the 16th March, 1937, the plaintiffs filed in the Revenue Court Summary Suit No. 90 of 1937 to recover from the second defendant the rent claimed to be due for the years 1934-35, 1935-36 and 1936-37. He did not defend the suit and a decree was passed ex parte. On the 14th August, 1941, the plaintiffs filed the suit which has given rise to the appeal. It was filed in the Revenue Court in res-pect of the rent due for the years 1937-38, 1938-39 and 1939-40. Here again the only defendant was the second defendant in O.S. No. 352 of 1921. The defendant pleaded that the Revenue Court had no jurisdiction as the land did not form part of an estate and that he was holding the land under a patta from Government.. The Deputy Collector decreed the suit, but on appeal to the District Court his deci-sion was reversed and the suit was dismissed. The plaintiffs appealed to this Court. The appeal was heard by Chandrasekhara Aiyar, J., who agreed with the District Judge. The present appeal is from the judgment of the learned Judge under Clause 15 of the Letters Patent.
4. Mr., Justice Chandrasekhara Aiyar held that the decision of this Court in. S.A.No. 280 of 1927 conclusively decided the question with regard to the ownership of the land and that the decision of Ramesam and Madhavan Nair, JJ., to leave the decree of the Subordinate Judge untouched as far as the tenants were concerned did not operate as res judicata on the question of their liability to pay rent to the zamindars. While accepting that the judgments of Ramesam and Madhavan Nair, JJ., fully settled the controversy as to whether the lands were to be regarded as ryoti or ryotwari lands the plaintiffs say that inasmuch as the learned Judge did not set aside the declaration of the Subordinate Judge with regard to the liability of the tenants to pay rent to the zamindar to this extent the decree operated as res judicata in their favour.
5. This question has come before this Court on three previous occasions, once before Venkataramana Rao, J. and twice before King, J. The judgments delivered by them are in conflict. The judgment of Venkataramana Rao,J., was delivered in S.A. Nos. 791 and 792 of 1934 on the 9th November, 1938. He was of the opinion that it was not really a question whether the doctrine of res judicata applied, but whether the zamindars were entitled to maintain suits for rent as it had been definitely decided that they had no title to the land, the title being entirely in the Government. He was of the opinion that there was nothing in law to preclude a tenant from pleading that the zamindars were no longer his landholders and that he was not bound to pay rent to him.
6. The question came before King, J., in S.A. Nos. 1094 and 1095 of 1940 and Nos. 888 and 914 of 1938. His judgment is dated the 25th June, 1942. He con-sidered that the judgment of Ramesam and Madhavan Nair, JJ., operated as res judicata as against those tenants to whom relief has not been granted under Order XLI Rule 33 of the Code of Civil Procedure, that is against those who had not appealed against the decree of the District Munsiff and were not parties to the second appeals. The question again came before the learned Judge in Civil Revision Petitions Nos. 2410 and 2411 of 1940 where he expressed the same opinion.
7. In his judgment now under appeal Chandrasekhara Aiyar, J., agreed with Venkataramana Rao, J.
8. As it was decided that the title to land was in Government and not in the zamindar, with great respect, we consider that it is very unfortunate that the suits which the zamindars filed in 1921 were not dismissed in their entirety. As Ramesam, J., admitted that this course was the logical conclusion of the Court's decision with regard to title, it is difficult to understand why the suits were not dismissed. The fact that the learned Judges suspected that there was collusion between some of the tenants and the zamindars does not appear to us to have any bearing. The failure to dismiss the suits has led to a very difficult situation and has given rise and will continue to give rise, to further litigation. The decision cannot, however, be ignored and we must decide whether by reason of it the present holders of the estate are entitled to bring a rent suit against the defendant on the basis that he holds the lands under a darmilla inam.
9. We consider that Venkataramana Rao, J., came to the correct conclusion. As it had been finally decided that the title to the lands was in the Government no suit for rent would lie in a Revenue Court. The plaintiffs could only have sued for rent if the title was in them and it was not. A person holding a patta from Government is entitled to say to the plaintiffs ' I am not your tenant and therefore you have no right to sue me for rent'.
10. It is said on behalf of the plaintiff that the decrees passed in the previous rent suits against the defendant in themselves operate as res judicata. This contention is manifestly fallacious. As the Revenue Court had no jurisdiction to entertain those suits the decrees passed therein must be treated as nullities and the same remark applies to the decree of the District Judge in the appeal from the decree of the Revenue Court in S.S. No. 223 of 1934. An appellate decree confirming a decree which is passed without jurisdiction can have no more validity than the decree of the first Court. The fact that the decree in S.S. No. 90 of 1937 was passed ex parte also makes no difference.
11. It follows that we agree with the decision of Chandrasekhara Aiyar, J. and the appeal must be dismissed with costs.
12. We wish to make it clear that our judgment is only intended to apply to the case of a tenant who appealed to the Subordinate Judge from the District Munsiff 's decree and was a party to the subsequent second appeal, which is the case here. Where the zamindars obtained possession under the decree passed by the District Munsiff or the tenant in consequence of the decree surrendered possession to him the position is quite different. In the course of the arguments the Court was told that in such cases the zamindars have been recognised by the Government as the pattadars. The ryots who have accepted tenancies from the zamindars will be bound to fulfil their obligations as tenants, but, of course, the zamindars will not be entitled to treat the tenancies as being tenancies within the meaning of the Madras Estates Land Act and therefore will not be able to sue them for arrears of rent in a Revenue Court. The Civil Court alone will have jurisdiction.