JUDGMENT

Agarwal, J - This second appeal arises out of a suit brought by the plaintiff for a declaration that he was in possession of the four plots in question, viz., Nos 440, 441, 776 and 777, under a mortgage deed dated 16th August 1929 and was not a tenant of the defendants 1 and 3. Defendant 2 Ghafurul Nisan executed a possessory mortgage of these four plots in favour of the appellant on 16th August 1929. She executed another mortgage deed in respect of these very plots in favour of Najju Khan father of defendant 1 on 12th August 1930. Defendant 3 is a transferee from defendant 1 under a deed dated 27th June 1936. Najju Khan filed a suit for arrears of rent against the present plaintiff in respect of plots Nos. 440 and 441 alleging that he was a tenant. That suit was decreed. He also brought a suit for arrears of rent against Mt. Jogdei who was in possession of the other two plots and that suit too was decreed.

2. Both the lower Courts have dismissed the suit in regard to plots Nos. 440 and 441 but decreed it in respect of plots Nos. 776 and 777. They held that the decision of the revenue Court that the plaintiff was a tenant barred the present suit in respect of plots Nos. 440 and 441. They also held that Jagdei had been paying rent to the plaintiff in spite of the decree obtained against her by the defendant and so the plaintiff was entitled to the declaration sought in respect of the two plots Nos. 776 and 777. It is contended in appeal on behalf of the plaintiff that the decision of the Courts below that his suit in respect of plots Nos. 440 and 441 was barred by res judicata is wrong. The defendants have filed a cross-objection and urged that the plaintiff was not entitled to a decree in respect of plots Nos. 776 and 777.

3. The first point which we propose to consider is whether the plaintiff's suit in respect of plots Nos. 440 and 441 is barred on account of the decision of the revenue Court holding the plaintiff to be a tenant of the second mortgagee. The learned Civil Judge who decided the appeal was of the opinion that the decision of the revenue Court that the plaintiff was not a prior mortgagee but a tenant was beyond the jurisdiction of the revenue Court and therefore that decision was not binding on the plaintiff. He however found himself bound by certain decisions of this and other Courts. He has relied on Bajrang Bahadur Singh v. Beni Madho Bakhsh Singh, A.I.R. 1932 Oudh 199 it was held in that case that Section 11, Civil P.C., does not exhaust the law of res judicata and the decisions of Courts possessed of exclusive jurisdiction had the effect of res judicata irrespective of the limitation that the first Court must be competent to decide the subsequent suit. It has to be seen whether the revenue Court had exclusive jurisdiction to try the matter in question. It undoubtedly had jurisdiction to decide a suit for arrears of rent but it had no jurisdiction to decide a question of title, that is whether or not the plaintiff was a mortgagee in possession. The following observation is made in Mulla's Code of Civil Procedure, 11th Edition at page 75.

A decision of a revenue Court on a question of title is no bar to the trial of the same question by the ordinary civil Courts unless the revenue Court is empowered by the Legislature to determine questions of title so as to constitute it pro tanto a civil Court. The reason is that Courts of revenue are generally Courts of jurisdiction limited to adjudicate on questions of rent, tenure, etc.

4. This observation was cited with approval in Mt. Harnam Kuar v. Mt. Narain Singh, A.I.R. 1935 Lah. 739. The learned Civil Judge has relied on three cases reported in Dilawar Khan v. Mt. Kulaum Bibi, A.I.R. 1926 Oudh 205, Har Nath Singh v. Sriram, A.I.R. 1926 Oudh 348 and Debi Prasad v. Baij Nath, A.I.R. 1926 Oudh 506 In DILAWAR KHAN V. MT. KULAUM BIBI, A.I.R. 1926 OUDH 205 the plaintiff had issued a notice of ejectment against the defendant treating him as her sub-tenant. The d