JUDGMENT Bennet, J.
1. This is a second appeal in which a Bench of this Court remanded an issue for finding by the lower appellate Court as to whether a certain plot in dispute was "land" as defined by the Agra Tenancy Act (2 of 1901) or not, and the finding of fact by the lower appellate Court is in the negative and is that the plot is a grove.
2. The appeal is by the defendants The plaintiff sued for possession of this plot as a grove and for recovery of damages on account of the produce appropriated by the defendants. It has been found that the defendants were zamindars and in possession of the grove in question and that they sold their zamindari and the grove in dispute to the plaintiff. The case for the defendants was that the grove was their sir and that by the sale they acquired exproprietary rights in it. In the Court of first instance, that of the Munsiff, at the instance of the defendants, the Munsif passed an order under Section 202, Agra Tenancy Act (2 of 1901), requiring the defendants to institute a suit within three months in the revenue Court for the determination of the question. The final decision of the revenue Court (the Commissioner) is to the effect that the land was sir and that by the sale defendants acquired exproprietary rights in it, and he directed that exproprietary rent should be assessed under Section 35, Land Revenue Act. The Munsiff accordingly dismissed the plaintiff's suit following the decision of the revenue Court.
3. The plaintiff appealed to the Court of the District Judge, and the lower appellate Court came to the decision that the Munsiff was wrong in making the reference under Section 202, Tenancy Act, because the land was a grove and not an agricultural holding. Accordingly, the lower appellate Court gave a decree to the plaintiff for possession of the disputed grove and for Rs. 30 on account of damages for the past three years.
4. The defendants have brought an appeal in this Court contending that Section 202, Tenancy Act, did apply to the case and that the judgment of the revenue Court that the relation of landlord and tenant existed was binding on the civil Court. When the matter first came in second appeal, the argument was advanced that the defendants did not have an opportunity of producing evidence to show in the civil Court that the land was agricultural land and that question was not before the revenue Court, because the order under 8. 202 rendered such a question unnecessary. Accordingly the case was remanded to the lower appellate Court on an issue whether the plot in dispute was land as defined in the Agra Tenancy Act, in order that the defendants might have opportunity of producing evidence on this point. The defendants did not produce any evidence, and the plaintiff tendered evidence on which the lower appellate Court came to the finding of fact that the land was a grove and not agricultural land.
5. It is now argued for the defendant-appellants that, even if the lower appellate Court is correct in holding that the land is not an agricultural holding and therefore the reference by the Munsiff under Section 202 was incorrect, still as that section directs the defendants to bring a suit in the revenue Court, such a suit is binding on the parties in the civil Court. The learned counsel stated that if his clients, the present defendant appellants, had instituted a suit for a declaration, under Section 95, Act 2 of 1901, such a suit, if decided before proceedings in the civil Court, would be binding on the parties and that it would not be open to the unsuccessful party to ask for a decision of the civil Court, that the decision of the revenue Court under Section 95 was incorrect on the ground that the land was a grove and not an agricultural holding. But, as pointed out by the learned counsel for the respondent, there is a difference in the procedure under Section 202. When the Munsiff passed the order under Section 202, the plaintiff did not have an opportunity of putting forward the plea in the revenue Court that the revenue Court had no jurisdiction to entertain the suit, and accordingly he did not put forward any such plea. If he had put forward such a plea, the revenue Court would have refused to entertain it, because there was the order of the civil Court under 8. 202, Tenancy Act, directing the defendants to file a suit in the revenue Court and that order not having been set aside then was binding on the parties.
6. Accordingly we consider that this circumstance makes a distinction between a suit brought in consequence of an order under Section 202 and an independent suit brought under Section 95. It is for this reason that we consider that it was open to the plaintiff to raise the question before the lower appellate Court as to whether the Munsiff was correct in making a reference to the revenue Court; and when the lower appellate Court came to the finding that the Munsiff was not entitled to make such a reference, then the lower appellate Court was not bound by Section 202(2) and need not dispose of the suit in accordance with the final decision of the revenue Court. We may refer to a somewhat similar case reported in Dhandei Kuar v. Chotu Lal A.I.R. 1922 All. 442. This was a first appeal to this Court from a decision by a Subordinate Judge in which the plaintiff had sued for possession of a number of villages, a market, groves and several houses. The defendant applied before the Subordinate Judge for a reference to the revenue Court under Section 202, Agra Tenancy Act, as he alleged that he was the tenant of the property in dispute. The Subordinate Judge made an order directing the defendant to institute a suit in the revenue Court for establishment of his right and decided the suit in accordance with what he considered to be the decision of the revenue Court. This Court in first appeal held that the Subordinate Judge was wrong in making a reference under Section 202, Agra Tenancy Act, and accordingly held that the decision of the revenue Court was rot binding on the civil Court. The matter had also been considered in a previous case between the same parties, reported in 39 All. 254.
7. Accordingly we consider that the lower appellate Court was entitled to grant the decree to the plaintiff, and we dismiss this second appeal with costs.