JUDGMENT Tudball, Ryves and Gokul Prasad, JJ.
1. The facts of the case out of which this appeal has arisen are as follows:
2. One Hulasi was recorded as an occupancy tenant of a certain holding for many years prior to 1300 Fasli (corresponding to A.D. 1893.) In 1301 Fasli there was a new settlement and the names of Pitai and Reoti, the sons of Dudha, were recorded as occupancy tenants of that holding, and the name of Hulasi was removed. Apparently the latter continued in possession, because in the year 1898 Pitai and Reoti issued a notice of ejectment against him, which ho proceeded to contest under Section 39, Act XII of 1881. The Revenue Court decided in favour of Hulasi that he was the occupancy tenant, and no appeal was preferred from that decision. In the year 1915, Ram Lal and Dudha, the sons of Pitai and Budha, son of Reoti, sued the present plaintiffs appellants and their brother Ghasi for arrears of rent. This suit was in respect of one of the plots (No. 851) which constituted Hulasi's holding. Budha, Mula and Ghasi are not the descendants of Hulasi, but are the sons of his brother, Nain Sukh. The claim was based on the allegation that these nephews of Hulasi were sub-tenants of the land, holding from the plaintiffs therein. The Assistant Collector of the first class in whose court the suit for rent was brought decided in favour of the then plaintiffs. In that rase the defendants pleaded that they were not the sub-tenants but that they were the actual occupancy tenants of the land itself. The case was decided on the 5th of May, 1916. An examination of the judgment shows that after Hulasi's death these persons, the nephews, claiming to be the heirs to his occupancy holding, took possession of it, that a suit for ejectment was brought against them by the landlord in 1914, that it was held that they had not inherited the occupancy rights and they were ejected. In view of this subsequent decision of 1914, and in view of the evidence before him given by the Patwari, the Assistant Collector held that they were the subtenants of the plaintiffs in that suit, and decreed the suit for rent. Thereupon, the present plaintiffs, two of the then defendants, brought the present suit in the Civil Court for a declaration that they were the occupancy tenants of the land, as against the defendants who were the plaintiffs in thereat suit. It is to be noted that the zamindar intentionally has not been made a party to this suit, although he is vitally interested in the matter. One of the three brothers did not join in the suit and was made a pro formed defendant. The suit relates to one of the plots, No. 851. The rest of Hulasi's holding is not in dispute, and in view of what we have said regarding the ejectment proceedings taken by the landlord, it could not be involved in this suit.
3. The court of first instance decreed the plaintiffs' claim. The lower appellate court has dismissed the claim. It has held that the decision of the 5th of May, 1916 is res judicata and it is not open now to the plaintiffs appellants to re-raise the point. We think the case is governed by the decision of this Court in Kishore Singh v. Bahadur Singh (1918) I.L.R. 41 All. 97. There can be no doubt whatsoever that in the present case an attempt has been made in the present suit to get round the decision of the rent court that the plaintiffs are the subtenants. In the reported case the previous suit in the Revenue Court was one in ejeetment, but we do not think that that cm make any difference to the principle applied, and we do not think that the Civil Court is empowered to go behind the rent court's decision or to set it aside. It will be noticed that the former decision of 1898 in favour of Hulasi had its full effect, but the subsequent decision was not contrary to the former decision of 1898. It was based on different facts and was decided in favour of the plaintiffs on the ground that the sons of Nain Sukh had not inherited the occupancy tenure of Hulasi. There is no necessity, therefore, to hold which of these two decisions is binding, for they do not clash. In our opinion there is no force in this appeal and the suit has been rightly dismissed. We, therefore, dismiss this appeal with costs.