JUDGMENT Rafique, J. - One Lachhmi Rai was the owner of an occupancy holding and died some time ago leaving him surviving a widow of the name of Kali Kuari. She executed a deed of relinquishment in respect of the said holding on the 21st March, 1918. in favour of the zemindars. On the 11th December, 1918, the zamindars brought a suit in the Revenue Court u/s 58 of the Rent Act for the ejectment of one Kashi Rai describing him as a subtenant. The latter pleaded that be was the principal tenant and that Musammat Kali had no right to execute a deed of relinquishment in respect of the holding in question, nor could such a deed convey any interest to the zamindars. The Revenue Court tried the case ex parte as Kashi Rai did not defend the suit and the claim of the zamindars was decreed and Kashi Rai was ejected. On the 21st March, 1919, Kashi Rai brought a suit in the Court of the Munsif of Azamgarh for a declaration that be was the chief tenant of the occupancy holding in question, that Musammat Kali had no right or interest in the said holding and could not execute a deed of relinquishment in respect of the holding in question. He based his claim on the allegation that ho was a cousin of the deceased husband of Musammat Kali and was joint with him in cultivation. The claim was brought against Musammat Kali and the zamindars. The defendants denied the allegations of Kashi Rai and the suit was tried on the merits. Both parties gave evidence in support of their respective statements. The Court of first instance dismissed the claim holding that none of the allegations made in the plaint had been made out. On appeal the judgment of the first Court was upheld. On the 9th September, 1920, the suit out of which this appeal has arisen was brought by the same Kashi Rai against the same defendants, namely, Musammat Kali and the zamindars for the possession of the occupancy holding on the allegations made in the former suit. The defendants resisted the claim on the pleas urged by them in the former suit and added that the present suit was barred by the principles of res judicata. This present suit came on for hearing before the same presiding officer who had tried the first suit. The defendants resisted the claim on the pleas urged by them in the former suit and added that the present suit was barred by the principles of res judicata. This present suit came on for hearing before the same presiding officer who had tried the first suit. He again recorded the evidence for the parties and gave his opinion on all the issues raised in the case. He came to the conclusion that the plaintiff Kashi Rai had failed to prove his allegation that he was joint in cultivation with the deceased husband of Musammat Kali or that he was the chief tenant of the occupancy holding in question. The learned Munsif further held that the present suit was barred u/s 11 of the Code of Civil Procedure. On appeal by Kashi Rai the learned Subordinate Judge agreed with all the findings of the first Court both with regard to fact and law, and dismissed the appeal. Kashi Rai in second appeal to this Court contends that his suit is not barred u/s 11 of the Code of Civil Procedure. The argument for him is that the former suit was one for declaration while the present suit is for possession. In the former suit it was not necessary for the Court to express any opinion on the merits of the case as the claim of the plaintiff-appellant would have failed on the ground that he could not sue for a mere declaration only while he was out of possession. 2. I do not thick that the contention for the plaintiff-appellant is sound. The learned Munsif received evidence on all the issues raised in the former suit and gave his opinion upon them. Even if the former case could have been disposed of merely on the ground that a suit for a declaration was not maintainable inasmuch as the plaintiff was out of possession, the Court could and did decide all the issues raised in the case. The fact that the issues raised in the case were decided would have to be taken into consideration in discussing the question whether the present suit is barred by res judicata. I am of opinion that as the matters raised now in the present suit are the same as those raised in the former suit and were decided between the parties, the decision in the former suit operates as res judicata against the plaintiff. I am of opinion that as the matters raised now in the present suit are the same as those raised in the former suit and were decided between the parties, the decision in the former suit operates as res judicata against the plaintiff. But apart from the plea of res judicata, the fact remains that both the lower Courts have pronounced an opinion on the merits of the case against the plaintiff. Even were he to succeed on his objection that his claim is not barred by res judicata his appeal would still fail inasmuch as the findings of the Courts below on the merits are against him and he cannot challenge them in second appeal. The appeal fails and is dismissed with costs including fees in this Court on the higher scale.