JUDGMENT
1. This is an appeal from an order of remand passed under the following circumstances: The plaintiff-respondent is the lessee of the zemindar and the defendants-appellants are persons who were agricultural tenants in this village. The plot in dispute is plot No. 450/3. Some years ago, the plaintiff sued the present appellants for arrears of rent on account of his holding in the Revenue Court. Plot No. 450/3 is entered in the papers as one of the plots held by the appellants. The suit for rent was decreed. The plaintiff then brought a suit in the Revenue Court for ejectment of the appellants and he entered plot No. 450/3 as one of those from which he sought to eject. The defendants pleaded that they did not hold No. 450/3 as agricultural tenants. The Court of first instance held against them and decreed the ejectment. The defendants appealed and on appeal their plea succeeded and it was held that they did not hold this plot as agricultural tenants and, therefore, the Revenue Court had no jurisdiction to eject them. The plaintiff then brought the present suit in the Civil Court. He set forth the history of the case and stated that he had originally granted this plot for agricultural purposes and gave the details of the litigation in the Revenue Court. He also set forth that the defendants had done various other acts such as erecting cattle troughs and utilising the land for other purposes and he claimed to eject the defendants and he placed in possession. The defendants pleaded that on the plaintiffs' own allegations the suit was not cognizable by the Civil Court and also pleaded that since the plaintiff had obtained a decree for arrears of rent in respect of this land in the Revenue Court, he was not competent to bring a suit to eject them in the Civil Court. He further pleaded that the plaintiff had sued for ejectment in the Revenue Court and that so long as that decision stood, it operated as res judicata. The result was that the Court of first instance, holding that the suit was not cognizable by the Civil Court, returned the plaint for presentation to the proper Court. On appeal, the learned Judge allowed the plaint to be amended with the following words: "The defendants are in wrongful possession of the plot in dispute without any right." This was in paragraph 6 of the plaint, and the word "wrongful" was also added in paragraph 7 after the word 'illegal;' and in paragraph 8, the following words were added: "It being held that the possession of the defendants is wrongful and without right." He then set aside the order of the first Court and directed it to hear and decide the suit. The defendants come here on appeal and urge (1) that the Civil Court had no jurisdiction by reason of the rent Court decision and (2) that the lower Appellate Court acted illegally in allowing the plaint to be amended so as to alter the nature of the suit. In our opinion, neither of these two pleas has any real force. In the suit for ejectment brought in the Revenue Court, the defendants pleaded clearly and distinctly that they were not the agricultural tenants of this plot and that the Revenue Court had no jurisdiction to eject them. The Revenue Court rightly or wrongly held that they were not agricultural tenants and dismissed the suit. This was subsequent to the decision in the rent suit. The defendants cannot be allowed, when the plaintiff has brought his suit in the Civil Court, which is the only Court where the suit can be brought, to plead that they are agricultural tenants and that the suit is not cognizable. As a matter of fact when a suit is brought in the Civil Court and the defendant pleads that he is an agricultural tenant, it is the duty of the Court to refer him to the Revenue Court for a decision of the point, which decision would be binding on the Civil Court. In the present case, the Revenue Court has, as a matter of fact, decided the point between the parties and to refer them again would be a mere waste of time.
2. It was, therefore, no longer open to the defendants to take up this position. We do not think that the decision in the rent suit can affect the case at all. We are not concerned with the question of notice at this stage of the suit. The defendants do not set up a title in themselves as owners of the land. They admit holding the land as tenants of some sort. It has been finally decided between the parties that they are not agricultural tenants. The plaintiff, therefore, has only one Court to which he can go to secure, if possible, the ejectment of the defendants. There may be good grounds why the suit should fail or should not fail. With those, we are not concerned. The amendment made does not materially alter the nature of the suit. The order of remand is a perfectly good order. The appeal is dismissed with costs.
3. It is, moreover, doubtful that an appeal lies to this Court from the order of the Court below.