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Judgment
Sadasiva Aiyar, J.—The 3rd plaintiff is the appellant, he being the Zemindar of Nuzvid. The defendants in these suits claimed to hold what
are called "" Banjar "" lands as parts of their respective jeroyiti holdings. The plaintiff''s case is that these banjar lands are not parts of these
defendants'' jeroyiti holdings but had been in their occupation on temporary grazing leases, and that on the date of the suits the defendants were in
possession as mere trespassers. The suits were brought on the strength of Section 103 of the Estates Land Act (Act I of 1908) in the Civil Court.
Both the lower Courts found as a matter of fact that these banjar lands were jeroyiti lands, that they were treated by the Zemindar from time
immemorial as parts of the respective holdings of the defendants which contained other lands admitted to be jeroyiti and that the defendants were
not trespassers. But the plaintiff argued that by reason of the decisions in certain prior suits brought by the plaintiff (or, rather the person who then
represented the interests of the plaintiff) for the enforcement of pattas for a former fasli, the question whether the defendants were entitled to hold
these particular lands as ryots must be decided against them as res judicata. For this contention the language of Section 189 Clause 3 of the
Estates Land Act is relied on. It is admitted that the matter is not res judicata. Clause Section 11 of the Civil Procedure Code, or if the principle
embodied in Section 11 can alone be relied upon in argument because the present suits in ejectment are not cognizable by the Revenue Court
which tried the former suits. Hence the appellant was constrained to rely in support of his argument upon what he contended was the true meaning
of Section 189(3) of the Estates Land Act.
Now, where Revenue Courts and Civil Courts are thus exercising jurisdiction in dispute between the same parties (one kind of Court in certain
matters and the other kind in some other matters) it is desirable that the Legislature clearly sets out in detail the particular matters over which each
set of Courts is intended to have jurisdiction and also provides clearly and definitely what has to be done when conflicts arise between the opinions
of the two sets of Courts on the same question vhen they are dealing with the separate matters within their respective jurisdictions. I shall just quote
a few passages from the judgment of Sheo Narain Rat v. Parmeshar Rai ILR (1896) All. 270 (such conflicts having apparently arisen in the United
Provinces frequently). "" As it is not conceivable that the Legislature could have intended that there should be of its own creation two sets of Courts
in these provinces each having jurisdiction to determine the same questions of title to land let to agricultural tenants and neither having any power to
compel the other to accept its decision by revision or other procedure or by process, we must assume that in all cases in which it is clear that for
the purposes of adjudicating upon an application or making a decree in a suit, it was the intention of the Legislature that the decision on the
question of title of the Court which was given the exclusive jurisdiction to entertain the application or the suit should subject to such rights of appeal
as was allowed by the statute be final between the parties unless the contrary intention was expressed."" Then in another part of the judgment (at
page 280) the learned Judges say ""It may be inferred from a long series of decisions... that the opinion was entertained by all the Judges who in
these Provinces or in the Lower Provinces of Bengal have considered the question that questions of proprietary title to land and of title to tenancies
between rival claimants, but not questions as to the status of a tenant of agricultural land, are questions which should be determined by the Civil
Courts and not by the Courts of Revenue in the more or less summary proceedings of the latter Courts."" Then they consider the particular
provisions of the Act which had to be considered in that case and arrive at the conclusion that on a particular point, the decision of the Revenue
Courts should be treated as final. The defficul-ties which the learned Judges felt in arriving at their conclusion are indicated by other passages in the
judgment (at page 275) as follows :--""It frequently happens that a Court of Revenue and a Civil Court come to different conclusions on the same
question of title litigated between the same parties in reference to the same lands. In such case which decision is to prevail? Is that decision to
prevail which was first given, or is that decision to prevail which was given in the proceeding or suit first instituled or is the time of one of such
Courts to be taken up in arriving at a decision which when pronounced will not be binding on the other Court and will be for all practical purposes
a brutum fulmen? How is such decision to be enforced ? It is clear that, unless a question of title arising in proceedings in ejectment under Act No.
XII of 1881 had been determined the parties by a reference to a Civil Court u/s 204 of that Act or in a suit instituted in accordance with an order
of a Court of Revenue made u/s 208 A of that Act, the Court of Revenue would not be bound by the finding as to title of a Civil Court. The
decision of an issue as to title by a Civil Court would not operate as res judicata u/s 13 of Act No. XIV of 1882 as to the same question of title in
proceedings under Sections 36 and 39 of Act No. XII of 1881, although between the same parties and relating to the same land ; and similarly a
decision of a Court of Revenue u/s 39 of Act No. XII of 1881 adverse to the application under that section contesting the liability of the person
upon whom a notice of ejectment had been served would not operate as res judicata u/s 13 of Act No. XIV of 1882 in a suit of ejectment in a
Civil Court between the same parties, the Court of Revenue not having jurisdiction to try a suit to eject a trespasser and a Civil Court not having
jurisdiction to try an application u/s 39 of Act No. XII of 1881 contesting liability to ejectment."" At page 273, they say "" This is one of that class of
cases which exemplifies the mischief which arises when the jurisdiction of Courts created by the Legislature is not plainly and explicitly and sharply
defined. That mischief is intensified when, as in these provinces, there are two sets of Courts, the Courts of Revenue and the Civil Courts, each
having in some matters exclusive jurisdiction, whilst as to other matters the question as to which of such Courts has exclusive jurisdiction depends,
not upon plain and explicit leaguage of the legislature but upon inferences to be drawn from a painstaking examination of a variety of sections in an
Act and upon general principles of jurisprudence upon which it is assumed that the legislature has acted.
Having made the above quotations to indicate the difficulties created by the legislature, I shall approach the con-sideration of this case with
reference to certain general principles of jurisprudence. Civil Courts have got unlimited jurisdiction over civil rights except when such jurisdiction is
expressly taken away and conferred upon another kind of court. Hence provisions of statutes taking away or restricting the jurisdiction of civil
courts ought to be strictly construed. Further it is the duty of special courts having restricted jurisdiction to respect and follow the decisions of
ordinary civil courts on matters of title to land and on such important questions as questions relating to status and rights even though the former
courts have jurisdiction to decide such important questions incidentally when dealing with special matters which have been placed by the
Legislature within their exclusive jurisdiction. That duty is recognised expressly by the Legislature in the Provincial Small Cause Courts Act and in
the Possession Chapter of the Criminal Procedure Code. The duty has been enforced by the decision of this High Court in cases arising under the
Maintenance Chapter of the Criminal Procedure Code. Section 213, Clause 3 of the Estates Land Act also recognises that general principle, No
doubt in the absence of a decision of a Civil Court on a question of title, the principle embodied in Section 11, C.P.C. though not that section itself,
(because that section is not one of the sections made applicable to the revenue courts expressly by Section 192 of the Estates Land Act) would
apply and a revenue court deciding a subsequent suit ought to accept the findings (even incidental but necessary findings) of the same court in a
former suit. See Bayyan Naidu v. Suryanarayna I.L.R.(1912) Mad. 70 and Venkata-chalapathi v. Krishna ILR (1889) Mad. 287. But (1) if a
question of title arises in a revenue court for the first time in that court incidentally, and is decided in one way ; (2) if it then arose in a civil court and
was decided in the opposite way ; and (3) if it again arose in the revenue court in a third suit exclusively cognizable by that court, the revenue court
in my opinion should on this third occasion respect the decision of the civil court given on the 2nd occasion and not follow its own finding in the first
suit. I have carefully considered the several relevant sections of the Estates Land Act, Sections 40, 51, 57, 153, 163 and 213 besides the section
directly in question, (viz.; 189) and have come to the conclusion that Section 189(3) was not intended to go beyond Section 11, CPC and to
constitute the decisions on issues arrived at in the revenue court in suits cognizable exclusively by the revenue courts binding on a civil court as res
judicata even though the subsequent suit brought in the civil court could not be brought in a revenue court. That principle seems to me to follow
from the observations found in Subbanna Achariar v. Gopalakrishna Achariar (1916) 341. C. 364 Chidambaram Filial v. Muthammal (1914) 15
M.L.T. 340 Ghouse Moidin Sahib v. Muthialu Chettiar (1913) 14 M.L.T. 523 and also Second Appeal No. 1002 of 1916. I do not think it
necessary to elaborate the matter because I am glad to find that the question was considered so recently as last week in S.A. No. 769 of 1919 by
a Division Bench of this Court (Ayling and Coutts Trotter, JJ.). The learned Judges held that the decision of a revenue court on the question
whether the relationship of landlord and tenant existed or not was not res judicata in a subsequent suit in a civil court as this subsequent suit was
not cognizable by a revenue court. Section 189, Clause 3 was quoted before the learned Judges but they held that it did not extend the scope of
the doctrine of res judicata in favour of the decisions of revenue courts beyond what was enacted in Section 11, C.P.C.
As I said already, I think it is the duty of the Legislature to make the provisions in the Estates Land Act on those points more clear and definite. I
might even say that whenever the relationship of landlord and tenant is denied in a revenue court or a question of title which cannot be finally
decided by a revenue court is raised in that Court, provision ought to be made to stay the proceedings in the revenue court till that matter is finally
decided by a suit in a Civil Court. I shall just quote what the Allahabad High Court has said on this matter (modifying the language of the learned
Judges slightly because they were dealing with a different enactment). "" In our opinion whenever in suits... or applications exclusively cognizable by
a revenue court the relationship of landlord and tenant between the parties or between those through whom they claim had riot been admitted... it
should be compulsory on the court of revenue to pass an order staying the proceedings before it for a limited time within which the party denying
that the relationship of landlord and tenant existed might bring a suit in a civil court to determine the question of title. If no such suit should have
been brought within a limited time, the court of revenue should without further inquiry decide finally the questions of title against the party who had
denied that the relationship of landlord and tenant existed. If such suit were brought the court of revenue should be bound to accept the result; of
that suit as determining the question of title whether the suit was determined in the civil court by a dismissal for default or upon an adjudication on
the questions of title.
In the result I agree with the Lower Appellate Court''s conclusion of the question of res judicata argued before us and would therefore dismiss
these Second Appeals with costs.
Spencer, J.
In these suits there can be no doubt that no plea of res judicata u/s 11 of the CPC can be maintained as the revenue court which decided the
previous suits for acceptance of patta in 1909 was not competent to try the present suits for delivery of possession. But the plaintiff relies on
Section 189, Clause 3 of the Estates Land Act which declares "" the decision of a Revenue Court or of an appellate or revisional authority in any
suit or proceeding under this Act on a matter falling within the exclusive jurisdiction of the revenue court shall be binding on the parties thereto and
persons claiming under them, in any suit or proceeding in a civil court in which such matter may be in issue between them.
It is argued that suits to enforce acceptance of pattas u/s 56 are suits within the exclusive jurisdiction of revenue courts. With this argument I
agree. Similarly suits u/s 30 for enhancement of rent, Section 38 for reduction of rent, Section 40 for commutation of rent and Section 55 to obtain
a patta are suits exclusively cognizable by revenue courts.
Next, it is argued that since in such suits the Collector is bound by the provisions of Section 57 to first inquire whether the defendant is bound to
accept a patta and secondly whether the patta tendered is a proper one, and since in Section 51 the local description and extent of the land and all
special terms by which the parties are to be bound are some of the details to be contained in a patta, a civil court is precluded from going into the
question whether a ryot who was previously a party to suits for acceptance of patta has occupancy rights in any portion of the land in that patta. I
think the District Munsif has given the correct answer to this argument in para 11 of his judgment. He says ""in deciding the propriety of the terms of
a patta the question of the defendant''s occupancy rights does no doubt arise for incidental decision but itcannot be said that it arises so directly and
substantially for decision, that the decision thereon by a revenue court can be said to be res judicata in a subsequent ejectment suit in a civil court
where the question may again directly and substantially crop up.
I think that the intention of the legislature in framing Section 189 was that such questions as those relating to the fairness and propriety of the
rate of rent fixed by a revenue court which a Collector from his experience of the agricultural conditions and the rates and prices prevailing in his
district is in a position best fitted to settle should not be again agitated in a civil court after they have been once decided in suits instituted in revenue
courts under Sections 30, 38, 40, 55 and 56 of the Estates Land Act. In the present case, I am of opinion that the prior decision having been a
decision upon an incidental question as to occupancy rights and not a matter falling within the exclusive jurisdiction of a revenue court is not binding
on a civil court u/s 189(3), although it did arise in a suit to enforce acceptance of patta which was exclusively cognizable by a revenue court. This
view is supported by the opinion expressed in two unreported cases, S.A. 1002 of 1916 decided by Seshagiri Aiyar, J., and Napier J. and S.A.
No. 786 of 1919 decided by Ayling and Coutts Trotter, J]. I agree with my learned brother that this appeal should be dismissed with costs.