1. We think that this case must go back to the lower Appellate Court for a re-hearing of the appeal.
2. The plaintiff sued for recovery of possession of the disputed land on declaration of his title thereto. His allegation was that he had let out the property to the defendant and was in possession by receipt of rent from him, but that in a rent-suit the defendant having denied the plaintiff's title, the rent-suit was dismissed. This suit was thereupon brought for establishing his title.
3. Now the Court below has held that as the plaintiff failed to prove the existence of the relationship of landlord and tenant in the rent-suit, it must be held that the appellant (sic) had been holding the land as a trespasser and farther that the plaintiff was not entitled to prove that the defendant was a tenant under him. The learned Subordinate Judge has evidently held that the plaintiff is precluded from showing that there was a relationship of landlord and tenant between him and the defendant.
4. It is contended before us, first that the decision in the rent-suit operated as res judicata only for the period covered by that 'suit, and that it is still open to the plaintiff to show that there was relationship of landlord and tenant for the period prior to the rant suit; and secondly, that the defendant is precluded by the remand order by which it was held that the plaintiff was not stopped from showing that the relationship of landlord and tenant existed between him and the defendant.
5. It is unnecessary to consider the first point because it is clear, having regard to the provision of Section 105, Civil Procedure Code, that the defendant is precluded from disputing the correctness of the remand order, which clearly held that the decision in the previous rent-suit did not create any estoppel in the plaintiff's way and did not preclude the plaintiff from showing that there was relationship of landlord and tenant between him a ad the defendant.
6. That being so, the decree of the lower Appellate Court cannot stand and must be set aside and the case sent bask; to that Court in order that the appeal may be re-heard according to law.
7. Coats to abide the result.