Oldfield, J.

1. I think that the learned Judge was right in his order of remand, because the previous judgment was not res judicata. In the previous proceedings defendants were, I hold, debarred from raising the question of plaintiffs title with reference to Section 116 of the Indian Evidence Act and neither authority nor reason has been shown for applying that provision only to tenants admitted to possession at the beginning of the lease and not to persons who are already in possession and continue in it. Vide also Madras Hindu Mutual Benefit Permanant Fund v. Raghava Chetti 19 M. 200. The appeal is dismissed with costs.

Tyabji, J.

2. This is an appeal from a decision of the learned District Judge who remanded the case for hearing on the merits on the ground that the matter now in issue between the parties was not res judicata. The matter in issue now between the parties is whether the defendant has title to the land referred to in the plaint. In the previous decision the plaintiff had sued the defendant for rent and had obtained a decree. The learned District Judge held that the District Munsif had somewhat studiously avoided considering and deciding the question of title" i