JUDGMENT Tudball, J.
1. This is a Letter Patent appeal arising out of a suit for rent. The facts are as follows: The defendant was a Zamindar, a Jat, in possession of certain lands which were in his cultivation. In the year 1910 be made a usufructuary mortgage of these lands to the present plaintiff. At the time of the mortgage the parties came to an agreement under which the defendant mortgagor was to continue cultivating the land as tenant (ex-proprietor) and was to pay a certain rent. As a matter of fact a kabuliat was drawn up. The properly mortgaged was in two villages and separate rents were agreed upon for each village. Apparently there was a considerable delay in applying for mutation of names, but in 1913 there was a mutation case which was finally decided by an order passed on the 5th of March 1913. The Assistant Collector, the Sub-Divisional Officer before whom the case came, passed what purports to be an order under Section 36 of the Land Revenue Act, in which he distinctly said: "I fix the rent at so much." There is a separate order for each separate village. Subsequently to this order a suit for rent was brought by the plaintiff against the defendant, but what the contentions of the parties were in that suit and what were the issues, we do not know, for the simple reason that the evidence is not before us. But that there was a suit is beyond question, and it ended in a decree for a certain sum of money in favour of the plaintiff. The present suit was then brought by the plaintiff to recover rent for 1328 Fasli. This suit was decreed by the Court of first instance. It was dismissed by the Court below and on appeal to this Court the appeal was dismissed by a Judge of this Court sitting singly; hence the present Letters Patent appeal. Two points are taken before UP. One is that the rent of these two holdings is res indicata by reason of the former decision inter-parties in respect to this land. The next point is that there is an order by the Assistant Collector under Section 36 of the Land Revenue Act which fixed the rent and that that order, having become final by reason of no appeal having been preferred, is binding on the parties and the Court cannot go behind it So far as the point of res judicata is concerned, we may point out that though it was raised in the Courts below and is raised before as, there is not before as any sufficient evidence to show that there was an issue as to the rate of rent in the former case, or what the decision of the Court was on that issue. If an appellant wishes a Court to hold a point to be res judicata between the parties, it is necessary for him to place before the Court all the material evidence to enable the Court to hold in his favour. The burden of proof is upon him, and in the absence of evidence the point must be decided against him In the present case there is no evidence before us on the basis of which we can hold that the point is res judicata. We, therefore, cannot allow this point.
2. As regards the other point, however, we think that there is considerable force in the appeal We may point out here that in the lower Appellate Court the Judge came to the conclusion that the annual rent, for which the suit had been brought, is about double the rent which would be fixed according to the principle laid down in Section 10 of the Tenancy Act. The lower Appellate Court, having found this as a fact, then said that the order of the 15th of March 1913. passed under Section 36, was a bad order inasmuch as it fixed an excessive rent on the basis of an agreement between the parties. It, therefore, held that it could go behind that order by holding it to be a bad one. It went on to say that no legal order under Section 36 had been passed and, therefore, the suit must fail in toto. The learned Judge of this Court before whom the appeal came, on this point remarked as follows:
Has the rent been paid legally here? The materials are scanty, but the question can be answered. There baa been no legal determination of the rant. The officer who conducted the mutation proceedings made no attempt to fix the rent. He recorded the rent entered in the kabuliat.
3. In other words, the Judge came to the conclusion that no order under Section 36 had been passed at all but merely the rent agreed upon between the parties had been ordered to be entered in the papers. But if we examine the order of the 15th of March 1913, we find that when the parties were before the Court, Khazan, the defendant, told the Court that he was willing to pay the rent and, therefore, the Court passed an order saying I hereby fix the rent of area so much at so much." It is not a mere order saying that as the parties have agreed upon a rent let that rent be recorded. It is a distinct and clear order, good or bad, legal or illegal, but it clearly says "I fix the rent at so much." It may perhaps have been wrong of the Assistant Collector to have accepted the rent agreed upon between the parties. Perhaps it would have been better if he had gone through the ordinary procedure and found for himself what the proper rent was. But as a matter of fact there is a clear and distinct order under Section 33 fixing the rent. The learned Judge of this Court is, therefore, wrong when he says that the officer who conducted the mutation proceedings made no attempt to fix the rent but "recorded" the rent entered in the kabuliat.
4. It is argued on behalf of the respondent that if an order passed under Section 36 fixing the rent was not passed strictly in accordance with law, it is open to the tenant in any subsequent suit, brought to recover the rent so fixed, to question the validity of that order and to ask the Court to hold that it was not binding and, therefore, to dismiss the suit for rent. Apart from the question of jurisdiction and fraud, if an order is passed by a Revenue Court under Motion 36, that order is binding between the parties unless and until it is upset by some superior Court. It is an order which is open to appeal and also perhaps to revision by the Board of Revenue. If the contention raised before us were correct, then it seems to us that this portion of Section 36 would be futile, for it would be open to every ex proprietary tenant, when sued for rent so fixed, to question the correctness of the order and in fact to practically ask another Court to set aside an order which it has no power whatsoever to set aside. Apart, therefore, from the question of jurisdiction or fraud we think that an order passed under Section 36 fixing the rent is binding on the parties and the Rent Court which hears the suit for rent so fixed cannot go behind that order. Clause 2 of the section distinctly says: "The rent so fixed shall be payable from the date the ex proprietary tenancy arose," etc.
5. We are asked to postpone the decision of this ease so as to enable the respondent to apply to the Board of Revenue and get the order of the 15th of March 1913 upset. The present litigation over this small sum of money has now lasted some four year. It must already have cost the parties much more than this amount in legal costs. The mortgage of 1910 is redeemable in the present year 1920. Three years' further arrears of rent have now accumulated and we thick that it would be far better for the parties that the present litigation should die. We, therefore, cannot see our way to postpone the case. We hold that the order of March 15th, 1913, passed under Section 36, Land Revenue Act, is binding and final. We must allow this appeal. We set aside the judgment of this Court and the Court below and restore the decree of the Court of first instance.