A decision in summary proceedings, which is not made final under the law, cannot operate as res judicata in a subsequent regular suit.

RANAWAT, J. :- This is an application under Art. 226 of the Constitution of India against the judgment of the Rajasthan Board of Revenue dated the 6th of October 1955, dismissing an appeal filed by the petitioner and upholding the judgment of the Additional Commissioner, Jaipur, of the 1st November 1954, by which he held that the suit brought by the petitioner in the Court of the Assistant Collector, Jaipur, was barred by the general principles of res judicata.

2. The facts leading to this petition are as follows :

3. The petitioner, Hanuman Prasad, made an application under S. 7 of the Rajasthan (Protection of Tenants) Ordinance (hereinafter referred to as the Ordinance) to the Anti-Ejectment Officer of Jaipur, which was allowed on the 29th January 1953, and he was ordered to be reinstated. A revision petition was filed in the Court of the Board of Revenue against the said order of the Anti-Ejectment Officer and it was allowed and the order of reinstatement was set aside on the ground that the petitioner Hanuman Prasad had failed to prove that he was a tenant. It was, therefore, held that he was not entitled to any relief under the Ordinance. Hanuman Prasad then filed a regular suit in the Court of the Assistant Collector of Jaipur on the 4th August 1953, for a declaration under Sch. I, Group B Item 30 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, that he is a Khatedar tenant of the land in question. A preliminary objection was taken by the opposite party that the suit was barred by the provisions of res judicata. The learned Assistant Collector repelled the preliminary objection and held that the decision under the Ordinance did not operate as res judicata. An appeal was preferred before the Additional Commissioner, Jaipur, against the said order of the Assistant Collector which was allowed on the 1st November 1954, and it was held that the decision of the Anti-Ejectment Officer under S. 7 of the Ordinance which was upheld by the Board of Revenue in revision operated as res judicata and the petitioner was not entitled to reagitate that he was a tenant in the subsequent suit which he had brought. A second appeal was filed to the Board of Revenue and the decision of the Additional Commissioner was confirmed. The learned members of the Board referred to Note No. 28 in Chitaleys commentary on Civil Procedure Code in coming to the conclusion that the general principles of res judicata applied and the decision under the Ordinance on the point that the petitioner was not a tenant operated as a bar against the plaintiff.

4. In this petition it has been contended on behalf of the petitioner that the view of the learned Members of the Board is not based on correct principles of law and is inconsistent with the observations of their Lordships of the Privy Council in the case of Bhagwan Din v. Gir Har Swaroop, AIR 1940 P C 7 (A). The decision, it is argued, under S. 7 (2) of the Ordinance is of a summary nature and the decision of the Privy Council in Bhagwan Din (A) directly governs this case. The relevant portion of S. 7 (2) of the Ordinance is as follows :

"On receipt of an application under sub-s. (1), the Sub-Divisional Officer or other officer of equal status, shall give a notice to the landlord and to the person, if any, in possession of such holding or part and shall, on being satisfied after such summary enquiry as he may consider necessary that the applicant was ejected or dispossessed as aforesaid, order that the applicant be reinstated in such holding or part thereof and that any other person in possession of it be ejected therefrom."

The provision of S. 7 (2) reproduced above expressly lays down that the nature of the proceedings of inquiry under S. 7 of the Ordinance is of summary character. The observations of their Lordships in AIR 1940 P C 7 (A) are as follows :

They hold that the decision of the District Judge under the Act of 1920 - a decision from which by S. 12 there is no appeal - is a