Rampini, A.C.J. and Sharfuddin, J.
1. This appeal arises out of a suit brought for ejectment of the defendant.
2. The facts are these according to the allegations of the plaintiff. The defendant was the tenant of the plaintiff on a plot of land of 8 bighas. The plaintiff sued the defendant for rent in 1900. The defendant denied that the relationship of landlord and tenant existed between the plaintiff and himself of the plaintiff withdrew his suit. In 1901 the plaintiff sued again for rent; and the defendant again pleaded that he was not the plaintiff's tenant. The suit was tried out. It was found that the defendant was not the plaintiff's tenant and the suit was dismissed. The plaintiff now sues for ejectment of the defendant, and the defendant denies the plaintiff's title. He is not very specific in setting up his own title; but he does not allege that he is the plaintiff's tenant. The District Judge has therefore held, upon the authority of the case of Nil Madhab Bose v. Ananta Ram Bagdi (1898) 2 C.W.N. 755, which was followed in the case of Fayj Dhali v. Aftabuddin Sirdar (1902) 6 C.W.N. 675, that the defendant is now in the position of a trespasser and is liable to be ejected.
3. The defendant appeals; and on his behalf the case of Srimati Mattika Dassi v. Makham Lal Chowdhry (1905) 9 C.W.N. 928 has been cited; and the pleader for the appellant very candidly admits that he cannot distinguish the facts of this case from those in the case of Fayj Bhali v. Aftabuddin Sirdar (1902) 6 C.W.N. 675. Now, the learned Judges who deoided the case of Srimati Mallika Dassi v. Makham Lal Chowdhry (1905) 9 C.W.N. 928 do not expressly say that the cases of Nil Madhab Bose v. Ananta Ram Bagdi (1898) 2 C.W.N. 755 and Fayj Dhali v. Aftabuddin Sirdar (1902) 6 C.W.N. 575 have been wrongly decided. If they had been of that Opinion, it would have been their duty to refer the matter to a Full Bench. We understand that they distinguished the facts of these two cases from those in the case of Srimati Mallika Dassi v. Makham Lal (1905) 9 C.W.N. 928; and as we think, and the pleader for the appellant admits, that the facts of this case cannot be distinguished from those of the case of Fayj Dhali v. Aftabuddin Birdar (1902) 6 C.W.N. 575, it is clear that we are bound to follow the decision in that case and affirm the decision of the lower Appellate Court.
4. We may mention that another case has been Cited by the pleader for the respondent, namely, that of Ramgati Mohurer v. Pran Hari Seal (1905) 3 C.L.J. 201, in which the cases of Fayj Dhali v. Aftabuddin Sirdar (1902) 6 C.W.N. 575 and Nil Madhab Bose v. Ananta Ram Bagdi (1898) 2 C.W.N. 755 have been followed. It appears to us that the plaintiff in this case has no option now but to treat the defendant as a trespasser and to sue him for ejectment. It has been decided in the last case, that is, the suit of 1901, that the defendant is not the plaintiff's tenant; and if the plaintiff now sues him as tenant he will be met by the plea of res judicata.
5. The pleader for the appellant also says that it has been found by the first Court that the defendant has been in possession of the land for more than 12 years. That is so. But the Munsif never held that the defendant had been in adverse possession for more than 12 years, but merely in possession of the land, and during part of that time he must have been a tenant; and that would seem to be the case, because the first occasion on which he repudiated the relation of landlord and tenant was in the course of the suit of 1900.
6. There is no reason, therefore, for our differing from the judgment of the lower Appellate Court; and we dismiss this appeal with costs.