JUDGMENT : 1. In this case two plaintiffs sued two defendants for arrears of rent in respect of certain land. It is an admitted fact that the plaintiffs and defendants are all of them co-sharers in the mahal or patti to which this land appertains. Whether there are or are not other co-sharers as well is not equally clear but there is no distinct reference to the existence of any other co-sharer in the pleadings. The defendants replied that they did not hold the land in suit as tenants of the plaintiffs but that the land was their own sir. The Court of first instance found against the defendants on this point and decreed the claim as brought. The learned District Judge has reversed that finding on appeal but the question is whether his decision on this point is not based on an error of law. The judgment of the lower appellate Court begins by discussing the evidence on the record at some length. It appears that the land in suit was at one time the tenant holding of Thauna the father of the defendant, Moti. Against this Thauna the plaintiff, Bindraban took proceedings in ejectment under the provisions of the N.W.P. Bent Act of 1881. Although Thauna contested the notice of ejectment thus served on him the question was decided against him and he was ordered to be ejected. Bindraban then seems to have granted a lease of this land to certain other persons not concerned in the present litigation. But it is clear that these lessees either never obtained possession under the lease or abandoned such possession as soon as their right to it was contested by the descendants of Thauna. In view of the finding that Thauna was all along a co-sharer in the mahal along with Bindraban it could seem that whatever right Bindraban might have had to etc. Thauna from his possession as tenant it would not follow that Bindraban alone without the concurrence of Thanna or of other co-sharers in the mahal was entitled to grant a fresh lease of the land. In any case it appears that the land in suit some how or other passed into the separate cultivation of the two defendants Bulwant and Moti the latter of whom is a son of Thauna. 2. In any case it appears that the land in suit some how or other passed into the separate cultivation of the two defendants Bulwant and Moti the latter of whom is a son of Thauna. 2. The real question in issue is whether these defendants obtained this land and have continued to hold it under a contract of lease from the other co-sharers of the mahal or whether they took possession of it as khud kasht land in their capacity of co-sharers of the mahal. 3. The record shows that as long ago as 1904 the plaintiffs were again taking proceedings to eject the defendants from this land. These proceedings ended in a compromise which left the defendants in possession but subject apparently to some sort of an agreement on the part of the latter to pay rent for the same. After this the present plaintiff sued the present defendants for arrears of rent in respect of this land. That suit came up for hearing on 24th April 1903 and therefore its trial was subject to the procedure laid down under the former Code of Civil Procedure (Act 14 of 1882). When the suit came up for hearing one of the two defendants was present but no plaintiff appeared. The defendant who did appear denied the plaintiff's claim to recover rent and set up the same plea which has been raised in the present suit namely that the land in suit was the sir holding of himself and his co-defendant. The Court could not however under the circumstances proceed to try and determine this issue. Under the provisions of S. 102 of Act 14 of 1882 it was bound to dismiss the suit and the order which it proceeded to pass to that effect can only be regarded as having been passed under S. 102 aforesaid. The result of this was to preclude the plaintiffs from bringing a fresh suit in respect of the same cause of action that is to say for the recovery of the arrears of rent claimed in that suit. 4. I cannot however agree with the learned. District Judge that the dis missal of this suit can be regarded as involving a finding in favour of the defendants on the question of fact raised by their written statement or can operate as res judicata under Section 11 of the present CPC. 4. I cannot however agree with the learned. District Judge that the dis missal of this suit can be regarded as involving a finding in favour of the defendants on the question of fact raised by their written statement or can operate as res judicata under Section 11 of the present CPC. The Privy Council ruling in Chand Kour v. Partab Singh, [1839] 16 Cal. 98 : 15 I.A. 156 seems quite clear on this point and as I have already remarked the Court cannot be said to have determined any issue in favour of the defendants when all it could do by law was to take note that the plaintiffs did not appear that the defendant who was present did not admit any part of the plaintiffs' claim and thereupon pass an order dismissing the suit. I am equally clear that the provisions of Section 103 of the CPC of 1882 would not operate so as to prevent the plaintiffs from maintaining the present suit which is in respect of arrears of rent alleged to have accrued due subsequently to those claimed in the former suit and is not therefore based on the same cause of action. If the learned District Judge had said that he regarded the failure of the plaintiffs to prosecute the former suit as an important piece of evidence against them and that upon a review of the evidence as a whole (including this circumstance) he came to the conclusion that the defendants were not holding this land as tenants of the plaintiffs there would probably have been no second appeal at all. The District Judge has however treated this decision of 24th April 1908 as “conclusive” and as “binding against the plaintiffs. “I can only take him to mean that he was of opinion that this decision of 24th April 1908 was a determination on the merits of a point in issue between the parties and therefore operated as res judicata against the plaintiffs. Being unable to concur in this view I cannot accept the decision of the lower appellate Court as it stands. Although I have considered the question whether it might not be advisable for me to record a finding of fact on the evidence as it stands I am not disposed on the whole to adopt that course but prefer to remit an issue for determination by the lower appellate Court. Although I have considered the question whether it might not be advisable for me to record a finding of fact on the evidence as it stands I am not disposed on the whole to adopt that course but prefer to remit an issue for determination by the lower appellate Court. The point for determination is whether the defendants are holding the land in suit as tenants of the plaintiffs or whether they, took it into their cultivation and have continued to hold it since in their capacity of co-sharers in the mahal. I remit this issue to the lower appellate Court for determination within three months. In the event of either party desiring to tender fresh evidence on this issue the lower appellate Court is at liberty either to receive this evidence itself or to remand the case to the Court of first instance to record this evidence but it should record its own finding. On receipt of the finding ten days will be allowed for objections. 5. (On receiving the finding his Lordship delivered the following). JUDGMENT 6. In this second appeal an issue was remitted by me under my order dated 12th July 1913 in which the facts of the case are discussed at considerable length. A finding has now been returned on the issue thus remitted which is in favour of the defendant-respondent Moti and is conclusive of the appeal before me unless it can be disturbed or reversed upon some ground capable of being pressed in second appeal. The plaintiff-appellant has filed a petition of objection under O. 41, R. 26 of the CPC, and I have heard arguments in support of the same. I think the lower appellate Court was within its discretion in admitting a piece of documentary evidence namely a copy of the settlement jamabandi of the year 1873 on the last date fixed for hearing before the said Court. The finding recorded has been arrived at upon a review of the evidence as a whole and the only objection which can fairly be taken to it is that the learned District Judge has perhaps expressed himself loosely when he says that the compromises discussed in his order are no evidence against the defendant in the present case. The finding recorded has been arrived at upon a review of the evidence as a whole and the only objection which can fairly be taken to it is that the learned District Judge has perhaps expressed himself loosely when he says that the compromises discussed in his order are no evidence against the defendant in the present case. Reading his order as a whole his meaning seems to me to be sufficiently clear namely that by reason of the minority of the present defendants, these compromises are not binding upon them and therefore cannot be regarded as decisive of the question raised by the issue under consideration. 7. It is contended that the fact of such compromises having been entered into should have been considered as evidence for what it may be worth. But I think it sufficient to say that even admitting this argument to be deserving of some consideration the evidential value of these compromises under the circumstances of the case seems to me practically negligible. I accept the finding returned by the lower appellate Court and accordingly dismiss the appeal with costs including fees on the higher scale.