JUDGMENT Piggott, J.
1. The plaintiffs in this case sued for a declaratory decree to the effect that they were jointly entitled to possession as co-sharers in certain cultivatory holdings together with an-injunction to restrain certain defendants from interfering with their joint cultivation. In the alternative, a decree for joint possession was asked. The question in dispute on second appeal has narrowed itself down and now relates only to certain particular plots which the Courts below describe as those shown in list (B). In respect to these plots, the case for the defendants is that the plaintiff's suit is barred by the principle of res judicata. It has been shown that as recently as June the 21st, 1906, the defendant Baladin obtained as against the present plaintiffs a decree for exclusive possession of these particular plots together with mesne profits. The present suit is clearly intended to annul the effect of that decree so far as these particular plots are concerned. In reply to the plea of res judicata, which was accepted by the Court of first instance, the plaintiffs pleaded that the decree of 21st June 1906, can have no effect as res judicata, because the Court which passed it, the learned Munsif of Jaunpur City, had no jurisdiction to make any such decree. It is, therefore, contended that under the provisions of Section 44 of the Indian Evidence Act, the plaintiffs are entitled to show, and that they have in fact shown, that the judgment and decree, pleaded by the defendant Baladin under Section 40 of the same Act, was delivered by a Coust not competent to deliver it. The learned Disirict Judge has held, first, that the decree of the 21st June 1906 amounts to a division of the tenant-holding and is in contravention of the provisions of Section 32 of the Tenancy Act of 1901 secondly that it was, therefore, a decree passed without jurisdiction and one which can have have no operation as res judicata. I am unable to concur in either of these findings. The plaint in the suit decided on the 21st June 1906, is not on the record. Like the learned District Judge, I can only refer to the judgment and decree of the Munsif of Jaunpur City in order to ascertain the nature of that suit. It appears from the decree that the relief sought was simply exclusive possession of certain part cular plots described as being a fixed rate holding and that the ejectment of the defendants in that suit (present plaintiffs) was sought as in an ordinary action in ejectment against trespassers. The Munsif of Jaunpur City was a Court of competent jurisdiction to entertain a suit for the ejectment of trespassers in wrongful possession of fixed rate holding in question, supposing the plaintiff to be able to prove that he was himself the rightful tenant of these fields and entitled to possession of the same. The judgment shows that the case was defended but that no plea of want of jurisdiction on the part of the Court by reason of the operation of Section 32 of the Tenancy Act was raised. It is also clear, however, as remarked by the learned District Judge, that the plaintiff Baladin relied upon a certain award according to which he claimed that the plots then in suit had been assigned to him while certain other plots had been assigned to the opposite party. From this fact the learned District Judge has presumed that the suit was in effect one to enforce an agreement under which a certain occupancy holding had been divided and was, therefore, not main-" tainable in any Court by reason of the provisions of Section 32 of the Tenancy Act. In support of this view, reliance is placed on the decision of this Court in Achey Lal v. Janki Prasad A.W.N. (1906) p. 274 : 3 A.L.J. 735. I may refer also to the later case of Najibullah v. Gulsher Khan 31 A. 848 : 6 A.L.J. 343 : 1 Ind. Cas. 594, in which this decision was considered and explained, though it seems to me that the head-note goes somewhat too far in noting it as having been overruled. It seems to me sufficient with regard to the point immediately in issue before me to say that it is really not proved by the evidence on the record that the effect of the award, relied on by Baladin in the suit of 1906, was in fact to split up a particular holding and not, for instance, to apportion different occupancy holdings amongst different members of the same family. I may add that it is, also not proved that the landholder concerned was not a consenting party to the arrangement whatever may have been effected under the award relied on by Baladin in the suit of 1906. Passing on to the second of the points indicated by me above, I have to consider what would have been the position of the present plaintiffs if they had resisted the suit of 1906 on the ground that it was in effect a suit for division of a holding and calculated to defeat the provisions of Section 32 of the Tenancy Act. I have shown that if this point had been taken, evidence might have been offered by Baladin to satisfy the Court as to the nature of the suit and as to its being distinguishable from the case of Achey Lal v. Janki Prasad A.W.N. (1906) p. 274 : 3 A.L.J. 735. Suppose now that an issue had been raised on this point and that after considering the pleadings of the parties and the evidence if any adduced by them, the learned Munsif had come to the conclusion that the suit was not in its nature obnoxious to the provisions of Section 32 of the Tenancy Act, would the defendants in that case have been entitled to submit to. the decree resulting from such finding but to treat it hereafter as a nullity on the ground that they would be entitled in any future proceeding to raise again, in virtue of the provisions of Section 40 of the Indian Evidence Act, the very point which had been decided against them? I concede not, and on this point I am content to refer to the cases of Kelililamma v. Kalappan 12 M. 228, Sardar Mal Jaganath v. Aranvayal Sabhapathy 21 B. 205 and the decision of this Court in Nathu Ram v. Kalian Das 26 A. 522. This being so, I am unable to hold that the present plaintiffs are in any better position because they made no attempt in the suit of 1906 to set up a defence based on the provisions of Section 32 of the Tenancy Act but appear on the contrary to have asked the Court to examine carefully the effect of the award relied on by Baladin and to give judgment in accordance with its terms. For these reasons, I accept this appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance. The plaintiffs must pay all costs in this and in the lower appellate Courts including in this Court fees on the higher scale.
Tudball, J.
2. This appeal was argued before Mr. Justice Piggott, who delivered the above judgment but without signing it prior to his retirement from this Court. The case has been re-argued before me and I find myself in accord with all that Mr. Justice Piggott has said above. In respect of the lands in list B, which alone are in dispute in this appeal, the defendants-appellants brought a suit to eject the plaintiffs-respondents as trespassers. The lands were held as a fixed-rate tenure from the landlord. Admittedly at some time past, it belonged to the common ancestor of the parties and the latter separated at the latest in 1899, after which there was a dispute which was submitted to arbitration and the arbitrators, in part at least, partitioned the tenure. There is nothing to show whether this occurred prior to the first of January 1902 when the Tenancy Act came into force or subsequently thereto. There is nothing to show whether or not the consent of the zemindars was obtained to this partition. Be that as it may, in 1906 the defendants-appellants came into Court alleging that they were the sole owners of the tenure in so far as these plots were concerned. The plaintiffs-respondents met them by pleading that some of the plots belonged exclusively to themselves and one was still joint and undivided. The Court held as against them that the plots were the exclusive property of the then plaintiffs, the present appellants, and gave them a decree for possession and mesne profits. The decree has been executed. The plaintiffs-respondents now come into Court alleging that this decree was null and void because the Court had no jurisdiction to entertain any such suit. This plea was based upon the provisions of Section 32, Clause (6), of the Tenancy Act. It is clear that if the decree was made in a suit of such a nature that no Court, Civil or Revenue, could entertain it, it would be null and void, and no decision therein could operate as res judicata between the parties. The only materials before the Court are the judgment and the decree, and there is nothing on the face of them to show that the suit as brought was one in which the Court had no jurisdiction. The partition may have been carried out prior to the first of January 1902 or may even have been made with the sanction and approval of the zemindar. The burden, therefore, lay on the plaintiffs to show that that decree was passed without jurisdiction. They have failed to place any materials before the Court in order to enable it to arrive at such a conclusion. Presumably the decree was one made with jurisdiction, and it was for the plaintiffs to show the opposite if they wished to treat it as a nullity. Partition of a holding made by the co sharers thereof with the sanction of the landlord is not an illegal act, and if once made, could be maintained in a suit brought in a Civil Court for possession in case of dispossession by either party and it could not be said that a decree for possession in such a suit would be one made without jurisdiction. There being insufficient materials to enable the Court to hold that the former decree was passed in a suit the entertainment of which by the Court was forbidden by law, the Court is bound to hold that the, former decision operates as res judicata between the parties. I, therefore, fully agree with the decision arrived at by Mr. Justice Piggptt. I accept the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance.
3. The appellants will have their costs in this and in the lower appellate Court.