The legal principle established is that the status of a tenant of antiquity and the applicability of res judicata must be carefully analyzed based on the specific facts and issues involved in each case.

Mohiuddin, A J C—The plaintiff-respondent, who is the manager of the institution Shri Bala Saheb Sansthan, instituted this suit in 1922 against Cham pat for ejectment from fields Survey Nos. 2, 19, 58, 61, 82, 84 and 85 and for mesne profits. Plaintiff is the jagirdar of mauza Jamgaon and owner of the fields in suit. These fields, except 5as.4p share of Survey No. 19, are alleged to have been in the possession of defendant's maternal grandfather Sonba, who held them as an annual tenant. Sonba died in 1916 and Cham pat is in possession since 1916. In civil suit No. 58 of 1921 a decree for arrears of rent for three, years 1918-19 to 1920-21 was passed The defendant again failed to pay his rent, and a notice under Section 78, Berar Land Revenue Code, was given. He was also served with a notice to vacate the land by the end of March 1922 as required by Section 79, Berar Land Revenue Code, and as he failed to do so, this suit has been filed.

2. Champat denied plaintiff's right to take possession and stated that he was not an annual tenant. Ho stated in para. 3 of his written statement that Raoji and Sonba, joint brothers, were in possession of the field as ante jagir tenants paying uniform rent to the jagirdar at survey rates and that the predecessor-in-title of the plaintiff had claimed enhancement of rent and possession of six of the fields in suit in 1887, but that relief was not granted, and that the decision in civil Suit No. 214 of 1887 operates as res judicata.

3. The plaintiff's suit has been decreed in both the lower Courts, and the defendant has filed this second appeal, putting forward two grounds in his memorandum of appeal. The first ground is that the present suit is barred on account of the decision in suit No. 214 of 1887, and the second ground is that the defendant has been proved to be a tenant of antiquity.

4. I will take up the second ground first, and see if the appellant has been proved to be a tenant of antiquity and, therefore, protected from ejectment. The learned District Judge, in para. 8 of his judgment, has carefully traced the origin of the several fields in dispute, and has pointed out that the earliest year when Raoji came into possession of some of the fields in dispute, that is, Nos. 2, 58, 61,62, and 84 was in the year 1874. Other fields, that is, 82 and 85, came into his possession in 1876 and 1883. Field No. 19 was under cultivation of Udaji in 1873 and was entered as inam under the cultivation of the jagirdar from 1880 to 1895. The tenancy having commenced from 1874 and after that year, that is, only 48 years before the filing of the suit, is not such as is entitled to protection under Section 78(2), Berar Land Revenue Code. I, therefore, hold that the appellant is not a tenant of antiquity, and is liable to be ejected.

5. Exhibit D-3 is the copy of the proceedings in civil suit No. 214 of 1887, of the Court of Civil Judge, Amraoti, from 13th May 1887 to 30th July 1887, and Ex. D-4 is the copy of the judgment and decree, dated 30th July 1887, and these were filed by the defendant. The record of the original case is also in the file of this case. The suit was filed on 28th April 1887. No abstract of the plaint is given in the place meant for it in the record. It is, therefore, not possible to find out as to what was stated in the plaint. The judgment gives the substance of the plaint as follows: Plaintiff sued to eject defendant from Jamgaon fields Nos. 2, 57, 61, 82, 84 and 85 and recovery of Rs. 277-8-0, double the amount of rent, and Rs. 11-12-0 on account of cesses payable by defendant, on the ground that defendant had failed to execute kabuliyat (agreement) to pay rent desired by plaintiff. He stated that he had sent a notice to defendant on 8th May 1883 calling upon him to execute an agreement (kabuliyat) or to leave the field, stating that ha would be liable to pay double the amount of rent payable by him in case of noncompliance.

Proceeding of 30th June 1887 shows that Mr. Mudholkar m