JUDGMENT Sir John Stanley, Knight, C.J. and Banerji, J. - The suit out of which this appeal has arisen was brought by Duli Chand, now represented by the appellants, for possession of certain agricultural lauds. It appears that the parties were co-sharers in certain zamindari, and under an arbitration award the zamindari was partitioned. The lands in question fell to the share of Duli Chand. He brought a suit in the Civil Court for proprietary possession of those lauds and for ejectment of the defendant. The Subordinate Judge in whose court the suit was instituted, by his decree, dated the 10th of November, 1902, granted to Duli Chand a decree for proprietary possession of the land. The defendant appealed to the District Judge and "contended that the land had been his air land before partition, that he had acquired the rights of an ex-proprietary tenant in regard to it and that he could not be ejected from it by a decree of the Civil Court. The learned Judge was of opinion that the decree of the first court only granted to the plaintiff proprietary possession of the laud, and that it could not be determined in that suit whether the defendant had acquired the rights of an ex-proprietary tenant. The learned Judge observed, however, in his judgment that, as there was an exchange between co-sharers, the defendant could not under any circumstances claim the rights of an ex-proprietary tenant. This view of the learned Judge was in our opinion right. By section 10 of the Tenancy Act where there is a transfer by private alienation no rights of ex-proprietary tenants accrue if the alienation is by gift or by exchange between co-sharers, Here there was evidently an exchange between co-sharers, and therefore, under the provisions of section 10, no rights could accrue to the defendant as an ex-proprietary tenant in respect of land held by him as sir. Holding the view which we have mentioned above, the learned Judge dismissed the appeal of the defendant. The decree obtained by Duli Chand was put into execution and he obtained possession of the property. It is admitted that he took actual possession of it; whether he obtained it by execution of the decree or subsequently is immaterial. Holding the view which we have mentioned above, the learned Judge dismissed the appeal of the defendant. The decree obtained by Duli Chand was put into execution and he obtained possession of the property. It is admitted that he took actual possession of it; whether he obtained it by execution of the decree or subsequently is immaterial. The defendant on being dispossessed brought a suit in the Revenue Court u/s 79 of the Tenancy Act for recovery of possession alleging himself to be the ex-proprietary tenant of the land. His suit was decreed. Hence the present claim for possession. 2. The court of first instance decreed the claim, but the lower appellate court dismissed it, holding that the decision of the Civil Court in the former suit brought by the plaintiff operated as res judicata. This view of the learned Judge is, in our opinion, erroneous; and the learned vakil for the respondent has not tried to support it. In the former suit, as we have pointed out above, the appellate court clearly abstained from determining whether defendant was liable or not to be ejected from the land. Therefore the decision in the previous suit cannot operate as res judicata in this case. 3. As, however, the suit related to agricultural land and the defendant pleaded that be held such land as the tenant of the plaintiff, section 202 of the Agra Tenancy Act applied and the court in which the suit was brought was bound to require the defendant by order in writing to institute within three months a suit in the Revenue Court for the determination of the question whether" defendant was the plaintiff's tenant or not. This the court of the first instance did not do. 4. Mr. Baldev Ram, for the respondent, contends that the decision of the Revenue Court in the suit brought by the defendant to recover possession is res judicata between the parties, and the procedure laid down by section 202 need not be adopted. We express no opinion on the question whether when a suit is brought in the Revenue Court by the defendant in accordance with the provisions of section 202, the decision in a former suit brought in the Revenue Court would or would not have the effect of res judicata. We express no opinion on the question whether when a suit is brought in the Revenue Court by the defendant in accordance with the provisions of section 202, the decision in a former suit brought in the Revenue Court would or would not have the effect of res judicata. We think the court of first instance was bound to follow the procedure laid down in section 202, and this must now be done. We accordingly discharge the decrees of both the courts below and remand the case to the court of first instance with directions to re-admit the suit under its original number in the register and adopt the procedure laid down in section 202 of the Agra Tenancy Act. The appellant will have the costs of this appeal. All other costs will follow the event.