SATISH CHANDRA, J. :- This appeal arises out of a suit for ejectment of the respondent Bir Sahai under Section 180 of the U. P. Tenancy Act.

2. It appears that the colonization plot No. 12 was settled with Bir Sahai in 1951 by the Administrative Officer, Colonization Department, District Nainital. According to Bir Sahai, plot No. 12 consisted of revenue plots Nos.

101 and 105. Disputes arose between Bir Sahai respondent and Man Singh appellant in regard to a portion of plot No. 105. The appellant claimed to be hereditary tenant of 15 Bighas and odd area of plot No. 105. On 2nd November, 1957, Bir Sahai filed a suit No. 279 of 1957 in the Court of the Munsif, Nainital, for an injunction. He arrayed the Administrative Officer, Colonization Department and the appellant as defendants to the suit. The prayer was that the defendants be restrained from forcibly dispossessing the plaintiff from Colonization Plot No. 12. The appellant contested the suit. According to him, a 15 Bigha area of plot No. 105 was not part of colonization plot No. 12 and on 20th November, 1957, this area of plot No. 105 had been allotted to him by the Administrative Officer Colonization Department, and he was the rightful hereditary tenant of this area.

3. The learned Munsif held that Colonization plot No. 12 included the entire area of plots Nos. 101 and 105. The lease in favour of the plaintiff included the entire area of plot No. 105. The Administrative Officer had no power to lease out any part of plot No. 105 to the defendant Man Singh. The allotment in his favour was invalid. Plaintiff Bir Sahai was found to be in possession of the land in dispute. On these findings the suit was decreed. Man Singh preferred an appeal. The learned District Judge confirmed the findings on merits and dismissed the appeal on 8th July, 1959. The appellate decision became final between the parties.

4. Shortly thereafter on 27th October, 1959 the appellant Man Singh filed the present suit under Section 180 of the U. P. Tenancy Act in the Revenue Court for ejectment of the respondent. One of the pleas raised in defence was that the previous decision in the civil suit operated as res judicata. The present suit was confined to the 15 Bigha area of plot No. 105 which alone was claimed by the plaintiff as his hereditary tenancy. In defence it was pleaded that the plaintiff had no right in the land as the area in dispute had been allotted to him by the Administrative Officer.

5. The Revenue Court held that Section 288 of the U. P. Tenancy Act provided that when an issue of tenancy right arises in a civil suit, the Civil Court should refer it to the revenue court for findings. The learned Munsif had no jurisdiction to decide that issue himself. The decree passed by him was without jurisdiction and hence did not operate as res judicata. Going into the merits of the case the Assistant Collector held that the allotment in favour of the defendant did not include the area claimed by the plaintiff appellant. On these findings the suit for ejectment of Bir Sahai from plot No. 105, measuring 15.3 Bighas was decreed. This decree was maintained in appeal as well as in second appeal. Aggrieved, Bir Sahai instituted a writ petition in this Court. A learned single Judge held that the decision of the Civil Court in the previous suit operated as res judicata under the doctrine of res judicata. It was also observed that since the appellant could raise this point in the previous case but for reasons best known to him he did not raise this point he could not be allowed to raise it in the present case. It was held that the non-reference of the issue to the Revenue Court was merely an irregularity which did not affect the jurisdiction. On these findings the writ petition was allowed and the decree was set aside. The matter was sent back to the Board of Revenue for decision in accordance with law. Aggrieved, the plaintiff Man Singh has come up in appeal.

6. Learned counsel for the appellant has made t