- (1.)THIS writ petition filed by Jodhan, which has been referred to us for decision at the instance of S.N. Singh J., challenges a decision given by the Board of Revenue on 30 -5 -1961 in a second appeal arising out of a suit under Sec. 176 of the Zamindari Abolition and Land Reforms Act, confirming the appellate decision of the Additional Commissioner. Gorakhpur, dated 2 -12 -1960.
(2.)THE plots in suit were originally held by one Ghulaman, who left two sons, Salik (father of the petitioner Jodhan and O. P. 6 Natha) and Lochan (father of O. P. 4 Ramdhari). On Ghulaman's death the property was recorded in the name of Lochan alone; and when Lochan and Salik died a dispute arose between their sons, Ramdhari (son of Lochan) claiming to be the sole tenant, while Jodhan and Natha (sons of Salik) claimed that they were entitled to half share in the plots in question. On 20 -3 -1957 Jodhan and Natha filed this suit for partition under, Sec. 17ft of the Zamindari Abolition and Land Reforms Act, which was decided in their favour by the Assistant Collector First Class on 16 -8 -1960.
Meanwhile Ramdhari on 18 -7 -1957 had filed a suit in the Civil Court for a permanent injunction to restrain Jodhan and Natha from interfering with his possession of the disputed plots (and in the alternative for possession of the plots) and that suit was dismissed, in respect of the plots with which we are at present concerned, by the First Additional Munsif of Deoria on 11 -1 -1960, with the finding that the plaintiff Ramdhari was not the exclusive sirdar of these plots. Ramdhari filed no appeal against the Munsif's decision, which therefore, became final between the parties. He did however, appeal against the decision of the Assistant Collector in the partition suit and that appeal was allowed on 2 -12 -1960, in respect of the plots now in dispute, by the Additional Commissioner, who held that the plots in question belonged exclusively to Ramdhari and that Jodhan and Natha had no share therein. The suit for partition filed by Jodhan and Natha thus stood dismissed; and this decision was confirmed by the Board of Revenue by means of the impugned second appeal order dated 30 -5 -1961.

(3.)THE contention now advanced by the petitioner Jodhan (which was also taken by him. before the Commissioner and before the Board of Revenue) is that the defence of Ramdhari in the partition suit to the effect that he was the sole sirdar of the disputed plots was barred by the principle of res judicata, in view of the earlier decision Riven against him by the First Additional Munsif of Deoria on 11 -1 -1960, which had become final between the parties. This plea was repelled by the Board of Revenue on the ground that the Civil Court had no jurisdiction to try the subsequent suit for partition of the holding and consequently the Civil Court judgment could not operate as res judicata under Sec. 11 C. P. C. 4. The fundamental question that calls for determination in this case therefore is whether a decision given by a Civil Court in a civil suit can operate as res judicata in a revenue suit subsequently decided by a Revenue Court, in which the same matter is directly and substantially in issue. Sec. 11 C. P. C. is couched in the following terms:
"11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigation under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

It is clear that in the case that we are now considering the conditions demanded by this Sec. are not satisfied, for the civil Court which gave the earlier decision did not have the jurisdiction to try the subsequently decided revenue suit. Consequently, on a strict application of the terms of Sec. 11, the decision in the earlier civil suit could not operate as res judicata to bar the trial of the subsequent suit in the Revenue Court. It is argued on behalf of the petitioner, however, that in a situation like this the restricted rule enunciated by Sec. 11 C. P. C. should not be applied but the subsequent revenue suit should be held to be barred by the earlier Civil Court decision on the basis of the general principles of res judicata.