JUDGMENT : Burkitt, J.:— This is an appeal against an order of remand under section 562 of the Code of Civil Procedure, passed by the learned Judge of Jaunpur. The suit, in which the order was passed, was one for ejectment preferred by the plaintiffs-appellants against the defendant, on the allegation that the latter was a trespasser. Before entering into the facts of this appeal I would refer to certain previous litigations which took place between these parties. In April, 1896, the plaintiffs applied to a Rent Court for dispossession of the defendant, alleging that he was their tenant. The defendant resisted their application, denying that he was a tenant and asserting that he was the owner of the fields, the subject of the notice. The Assistant Collector gave the plaintiffs an order for ouster of the defendant, but on appeal to the Collector that order was set aside as to the fields Nos. 1168 and 1166. The Collector found that the defendant was either the owner or a rent-free tenant of many years' standing. The plaintiffs apparently submitted to the order of the Collector, but afterwards they made an application to have rent assessed on the two plots, Nos. 1166 and 1168, mentioned above. This application was refused by the Assistant Collector who found the defendant to be in adverse possession of those two plots. The present suit was instituted in January, 1903. It prays that the defendant, Ranjor Singh, be ejected from possession of the two fields Nos. 1166 and 1168 and also from some other fields. The Court of first instance dismissed the suit. On appeal the learned District Judge for reasons which commended themselves to him has apparently confirmed the judgment of the first Court as to the fields Nos. 1166 and 1168, but remanded the record under section 562 as regards the other fields. Now, as to this order of remand, I may at once say, it is bad and cannot stand. In the case of Banwari Lal v. Samman Lal : [1889] I.L.R., 11 All. 488, it has been distinctly laid down that section 562 of the Code of Civil Procedure authorises a remand only where the entire suit, and not merely a portion of it, has been disposed of by the Court below on a preliminary point. That decision has been followed in several subsequent cases in this Court and in other Courts. 488, it has been distinctly laid down that section 562 of the Code of Civil Procedure authorises a remand only where the entire suit, and not merely a portion of it, has been disposed of by the Court below on a preliminary point. That decision has been followed in several subsequent cases in this Court and in other Courts. We have no doubt that it is a correct exposition of the law. Applying it therefore, to this case, it is clear, that the remand order made by the learned Judge, is a bad order, and it must be set aside. 2. As to the merits of the case, the learned Judge, after setting out at length the previous litigation, continues thus:— “It has been urged on behalf of the defendant that the two decisions of the Rent Courts, alluded to above, bar the present suit under section 13 of the Code of Civil Procedure, and also that the plaintiffs having more than once admitted that the defendant was their tenant, cannot now turn round and say that he was a trespasser.” 3. Now in this view of the law, I am of opinion that the learned District Judge is in error. Section 13 of the Code of Civil Procedure, as has been frequently laid down by this and other Courts only applies in cases where the Court, whose decision is cited as a res judicata, was competent to try the second case. 4. This suit being a suit in ejectment for dispossession of a trespasser is one which no Rent Court could try; It follows therefore that no decision of a Rent Court can, as a res judicata, bar the hearing of this suit. 5. The cases cited by the learned District Judge are in no way in point. The case he cites is that of Baldeo Singh v. Imdad Ali : I.L.R., 15 All., 189. The facts in that case are very different from this. In that case the plaintiffs served notices on the defendants under section 36 of the Rent Act and treated them as their tenants. So far, therefore, as the plaintiffs and the defendants were concerned, the relation existing between them was stated by the plaintiffs to be that of landlords and tenants. In that case the plaintiffs served notices on the defendants under section 36 of the Rent Act and treated them as their tenants. So far, therefore, as the plaintiffs and the defendants were concerned, the relation existing between them was stated by the plaintiffs to be that of landlords and tenants. In the course of the proceedings in the Rent Court, it was held by that Court that the defendants in that case were occupancy tenants, that is to say, that the Rent Court, the only Court empowered in that behalf, made the declaration that the defendants were the occupancy tenants of the plaintiffs. It is in this respect that that case differs from the one now before us. In that case the plaintiffs did not submit to the order of the Rent Court but instituted a suit in a Civil Court. That suit was practically nothing more or less than an appeal from the decision of the Rent Court, as it prayed Civil Court to eject the defendants as trespassers. It was held in the case just cited that a Civil Court had no power to touch a matter in which the Rent Court alone was the competent tribunal. In the present case, however, it is different. The plaintiffs have submitted to the decision of the Rent Court, accepting its finding that the defendant is not a tenant, and they have now come to the Civil Court, asking that Court to eject him as a trespasser. In this way this case differs in toto from the case in Indian Law Reports, 15 Allahabad. Here we have the plaintiffs accepting the order of the Rent Court and asking further relief from the Civil Court in pursuance of that order, while in the case in 15 Allahabad we had a plaintiff attempting to contest in the Civil Court an order which the Rent Court alone was empowered to pass. The two cases are in no way similar. I have no hesitation in ruling that neither that case nor section 13 of the Code of Civil Procedure has any bearing on the present case. The two cases are in no way similar. I have no hesitation in ruling that neither that case nor section 13 of the Code of Civil Procedure has any bearing on the present case. I must hold that the District Judge was entirely wrong in deciding that a portion of the claim in this suit was barred by res judicata, Therefore, setting aside the decree of the lower Court and the order of remand, which is manifestly an improper order, I would decree this appeal and direct the record to be returned through the District Judge to the Court of first instance to be replaced on the file of pending suits and decided on the merits. I think the appellant is entitled to his costs of this appeal. Blair, J.:— I concur. It is ordered that this appeal be allowed, that the order of remand of the lower appellate Court be set aside and that the record be remanded under section 562 of the Code of. Civil Procedure through the lower appellate Court to the Court of first instance to be replaced, in its original number on the file of pending suit's and decided on the merits. The defendant-respondent must pay the costs of this appeal. The other costs will follow the event.