The suit was not barred by res judicata and was remanded to the trial Court for further proceedings.

( 1 ) THIS is plaintiffs' second appeal.

( 2 ) THE plaintiffs' suit for possession of 8 survey numbers mentioned in the plaint and for account has been dismissed by the trial Court as well as by the first appellate Court. Hence this second appeal. 2-A. Anandi Prasad and Ranjit Singh were tenants of survey numbers mentioned in the plaint. They granted a Patta to defendants 1, 2 and 3 who were members of joint Hindu family. The question involved in this suit is : whether the Patta creates sub-tenancy in favour of the defendants. The plaintiffs' contention is that it was not sub-lease but merely a partnership. Hence sub-tenancy was not created.

( 3 ) THE Zamindari in Madhya Bharat was abolished on 2-10-1951. The defendants made application before the revenue authorities, on 27-4-1953 stating therein that tenancy right has been acquired by them under S. 38 of that Act. The plaintiffs' case is that there had been a partition between Anandi Prasad and Ranjit Singh. The name of Anandi Prasad was mutated in the revenue records on 19-3-1948. The suit lands fell to the share of Anandi Prasad, who alleged himself to be a disabled person entitled to lease his land. On 12-11-1954, Tehsildar found that partition had taken place and further that Anandi Prasad was a disabled person. The application of the defendants was, therefore, dismissed. The S. D. O. also dismissed the appeal, but the Second Appeal preferred therefrom by the defendants was allowed on 2-4-1958. Anandi Prasad died on 26-5-1958. His legal representative Brijdevi filed a revision before the Board of Revenue which was allowed, but on 19-7-1963 re-hearing on review application was done and the revision was dismissed on 15-1-1964. A writ petition (M. P. No. 17/64) was, filed against that order which was dismissed. It is reported in Brijdevi v. Manakchand, 1969 Jab LJ 556: 1969 RN 290.

( 4 ) A notice was given by the heirs of Anandi Prasad on 23-11-1967 and the present suit was filed on 29-4-1968.

( 5 ) THE defendants asserted that they have acquired that status of the Bhumiswami. The suit is barred by constructive res judicata and is also barred by limitation. The plea of constructive res judicata as well as of limitation prevailed with both the Courts below. Hence this appeal.

( 6 ) THE first contention of Shri Sanghi, the learned counsel for the appellant, is that only the Civil Court has jurisdiction to decide whether the Patta creates any sub-tenancy. Even, on a proper construction of Patta it would be clear that no sub-tenancy was created. Findings given by the Revenue Courts were not binding on the Civil Courts. Further submission of Shri Sanghi is that under S. 38 (2) of the Zamindari Abolition Act, the revenue authorities had no jurisdiction to decide title of the parties and, therefore, the decision of the High Court in the writ petition would also be deemed to be one arising out of those proceedings only. It is further submitted that the question of limitation being a mixed question of law and fact would require evidence of the parties and it was an error on the part of the Courts below to hold that the suit was barred by limitation. Learned counsel also submitted that the question whether the amount deposited by the respondents for acquiring the right under S. 38 was proper evidence would be necessary as it is a disputed question of law and fact. Further the question regarding the interpretation of the terms of the Patta as well as disability of Anandi Prasad would require evidence. Lastly it is submitted that the Courts below should have held that the suit was maintainable and within limitation.

( 7 ) THE argument of Shri Sanghi is that under S. 86 (4), M. B. Land Revenue and Tenancy Act, Samvat 2007 which came into force on 6-6-52. Order passed in mutation proceedings shall not debar any person from establishing such right in any land as he may claim by a regular suit in a competent Civil Court. It is similar to S. 111 of the M. P. Land Revenue Cod