S.S. Dhavan, J. - (1.) THIS is a Plaintiff's second appeal from the decree of the II Civil Judge Meerut dismissing a suit for a declaration of his tenancy rights and for a permanent injunction to restrain the Defendant -Respondent from interfering with his possession. The Plaintiff alleged in his plaint that prior to the abolition of zamindari system in this State he had been a cultivator of the plots of land in dispute; that the Respondent Kammo filed a suit for his ejectment under Section 180 of the U.P. Tenancy Act which was decreed in 1952 -the decree being ultimately confirmed by the Board of Revenue in 1954; that in spite of the decree the Plaintiff continued in possession of the land and was also recorded as in possession In the Khasra and Khatauni of 1356F; that on the date of vesting he became an adhivasi and subsequently sirdar; that hence he was not liable to be ejected in the execution of the decree for ejectment; that the Defendant was attempting and threatening to dispossess the Plaintiff; hence the suit.
(2.) THE Defendant resisted the suit and denied that the Plaintiff had acquired any adhivasi rights in the land. He further pleaded that the plea of adhivasi had been taken by the Plaintiff before the Board of Revenue in his appeal from the decree for ejectment and was rejected by the Board, therefore, it could not be raised again in the present suit being barred by the principle of res -judicata and Section 11 of the Code of Civil Procedure Code. A number of other pleas were taken in defence which need not be considered as neither the Appellant nor the Respondent has referred to them in this appeal. The question whether the Plaintiff had become an adhivasi of the land in dispute on the date of vesting was referred to the revenue court which found that the Plaintiff had not become an adhivasi on the material date. Accepting this finding the learned Munsif held that the Plaintiff had not become an adhivasi of the plots. On the question of res -judicata, the learned Munsif held that the present suit was not barred under Section 11 CPC. The reasons for this finding are detailed in the judgment of the earned Munsif and need not be repeated here. But the learned Munsif held, in view of the finding of the revenue court, that the Plaintiff had not become an adhivasi of the land, and dismissed the suit with costs. On appeal by the Plaintiff the learned Civil judge held -in act, this point was conceded on behalf of the Defendant Respondent -that the -Plaintiff having been recorded as an occupant in the record of 1356F should be held to be an adhivasi and sirdar, but as the learned Judge disagreed with the trial court on the question of res judicata he held that the Plaintiff's claim to be regarded as an adhivasi having been urged before the Board of Revenue in second appeal and rejected by that court, the plea could not be raised again in the present suit because of the bar of Section 11 CPC. In the result the learned Judge, for reasons of his own, confirmed the decree of the trial court. The Plaintiff has come to this Court in second appeal.
(3.) MR . Asif Ansari urged the following points in support of this appeal. First, the finding of the lower appellate court that the Plaintiff Appellant had acquired adhivasi rights in the land entitled him to a decree for a declaration of his rights; secondly the question of adhivasi was not barred under Section 11 Code of Civil Procedure and the learned Judge has misapplied the law on this point.;