1. This is a reference under Section 267 of the Agra Tenancy Act (Act 3 of 1926) and arises out of a suit brought in the Munsif's Court, Fatehpur, by Manohar Singh to eject the defendant Sheo Saran. The plaintiff's case was that he was the proprietor of the land, which was in the occupation of a tenant Ram Sahai, who died on the 20th June 1926 without leaving any heir, with the result that the tenancy reverted to the plaintiff. He alleged that the defendant had no right to occupy the land, but he took wrongful possession as a trespasser at the beginning of the rainy season preceding the suit. The defendant on the other hand pleaded that he was a tenant of the plaintiff, that from him rent had been accepted, and that under Section 44 of the new Tenancy Act (Act 3 of 1926) the suit was not entertainable in a civil Court. The learned Munsif considered that the question of law whether the civil or the revenue Court was the correct forum, was one of difficulty and has accordingly made this reference. The allegations in the plaint make out a case of trespass, pure and simple. A trespass on land amounts to an infringement of a civil right and a remedy prima facie should be sought in a civil Courts Unless, therefore, the new Act expressly ousts the jurisdiction of the civil Court to try such civil cases, it would be difficult to hold that the Munsif has no jurisdiction to entertain the suit.
2. The contention on behalf of the defendant is that a suit for ejectment of a trespasser comes under Section 44 of the Act, and in view of the provisions of Section 230 read with the Fourth Schedule, such a suit is exclusively triable by the revenue Court. On the other hand, reliance is placed on behalf of the plaintiff on the provisions of Section 273 and on the judgment in the case Debi Sahai v. Daulat : AIR1927All346 . decided on the 17th of January 1927 by a learned Judge of this Court. The last mentioned case, though it should have been decided by a Bench of two Judges, does contain an expression of opinion in favour of the plaintiff on the main ground that on a contrary view Section 273 would become superfluous. It was a case under the Act of 1926, though by a slip the Act of 1901 was mentioned.
3. We have to see whether the intention of the legislature was to oust the jurisdiction of the civil Court completely in respect of suits relating to agricultural land, or whether the object merely was to remote the uncertainty as to which tribunal the aggrieved party should go. If it be held that as regards all agricultural land, the civil Court has no jurisdiction to entertain any suit the consequences may be far reaching. Part of an area may be agricultural land and another part of it non-agricultural. Are two separate suits to be necessarily instituted in the civil and the revenue Courts, neither of which can be stayed under Section 10, Civil P.C., and in both of which the same question of title may have to be fought out? Similarly apart from contests between rival claimants to the proprietary interest there may be a defendant denying the plaintiffs title and pleading jus tertii. Can the jurisdiction of the civil Court be barred as regards all such cases? Under Section 34 of the Old Act a person occupying land without the consent of the landholder was liable to pay rent. There was no express provision in the section that he could be ejected. The Courts used to treat him as a tenant from year to year and eject him under Section 58. Section 44 of the new Act cures the omission to a certain extent by expressly declaring that such a person is liable to ejectment. The words 'and in contravention of tie provisions of this Act' are also new and cause some difficulty by implying that a mere trespasser has taken possession in contravention of the provisions of the Act. Probably these words mean nothing more than that such possession is unauthorized by the Act, Another material difference between the new and the old sections is that instead of liability to pay rent there is now a liability to ejectment and to pay damages, but a maximum limit of four times the annual rental value is fixed for the damages. In view of the express provisions for ejectment it is not now absolutely necessary to say that the plaintiff must treat the defendant as a tenant, although the expression 'on the suit of the landholder' supports such a view, for a landholder under Section 3, Sub-clause (6) can be only such person to whom rent is, or but for a contract express or implied would be, payable. If, therefore, it be the case of both parties that the defendant is a trespasser, it would be difficult to describe the suit as one by a landholder. The important point to consider, however, is that there is a maximum limit prescribed for the amount of damages which can be claimed, whereas no such limit can be fixed for mesne profits. The plaintiff in a suit under Section 44 cannot claim more than four times the annual rental although if he were suing in a civil Court, he might under special circumstances get mesne profits much larger in amount. Could it have been the intention of the legislature to take away the civil right of a proprietor to claim the full amount of mesne profits from a trespasser who has entered upon his property wrongfully? We are of opinion that no such intention in the mind of the legislature can be inferred. Section 44 was probably enacted in order to allow facilities to an owner of agricultural land in seeking a speedy remedy through the revenue Court if the defendant has taken possession without his consent and if he is prepared to accept damages up to the maximum prescribed. Section 230 corresponds to the old Section 167, It confers, exclusive jurisdiction on the revenue, Court as regards suits and applications of the nature specified in the Fourth Schedule in respect of which adequate relief can be obtained in that Court. It certainly follows that where a suit is expressly provided for as being cognisable by the revenue Court, the civil Court would have no jurisdiction to try it. The fourth schedule, however, contains a heading, which is undoubtedly a part of it, showing that the jurisdiction both original and appellate specified in each group is subject to the provisions of Sections 241, 271 and 273. A suit under Section 44 falls in group B (serial No. 2) and is, therefore apparently subject to the provisions of Section 273. That in our opinion means that the original as well as appellate jurisdiction of the revenue Court to try a suit under Section 44 is subject to the provisions of Section 273.
4. Now Section 273 corresponds to the old Section 202 and provides that if any suit relating to an agricultural holding instituted in a civil Court the defendant pleads that lie holds such land as the tenant of the plaintiff or of a person in possession holding from the plaintiff, the civil Court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue Court for the decision of that issue only. Under the old law the defendant used to be called upon to institute a suit in the revenue Court. Now an issue only is to be sent. Section 273 really contemplates a suit filed in a civil Court, which relates to an agricultural holding, but in which the plaintiff does not admit that the defendant is his tenant and the defendant pleads that he is the plaintiff's tenant, and in which, therefore, the plea of tenancy is to be determined by the revenue Court. If it were to be held that all suits relating to land over which the defendant has obtained possession without consent, fall under Section 44, and that Section 230 confers exclusive jurisdiction in respect of it on the revenue Court then the provisions of Section 273 would become altogether superfluous, for it would be difficult to imagine any case, which would be covered by this section and would not fall under Section 44. No doubt the word 'holding' in the section is an unhappy expression, because under its very definition it implies a parcel or parcels of land held under one tenure or one lease, engagement or grant. If the plaintiff does not admit the defendant to be his tenant, he certainly does not admit that the land is held by him under one tenure, lease, engagement or grant. This word is, however, borrowed from the old Section 202 and the same technical difficulty arose even under the old Act. But in all cases where the property in dispute was agricultural land and the civil Court found that it was so, it used to pass an order under Section 202, although the plaintiff did not admit that the defendant was holding the land from him. When the legislature has copied out part of the language of the old section, it may be presumed that it accepted the interpretations put upon those expressions by the Courts under the old law. Section 273 would, there fore, be applicable to a case where though the plaintiff does not admit that the defendant is holding under any tenure, lease, engagement or grant from him, and the defendant is pleading that he is the plaintiff's tenant, the Court is satisfied that the property in dispute in the case is an agricultural holding, that is to say, a parcel or parcels of land let or held for agricultural purposes. When the civil Court is satisfied that the property is of this kind, it has no option but to frame an issue on the defendant's plea of tenancy and refer the same to the revenue Court. The jurisdiction of the civil Court to refer such an issue is expressly provided by Section 273, and is not intended to be barred by the provisions of Section 230.
5. On this interpretation of. Section 273 we are of opinion that the present suit clearly falls within its four corners, and that the civil Court has jurisdiction to entertain it. But if it is satisfied that the suit relates to an agricultural holding, it must frame an issue on the defendant's plea of tenancy and submit the record to the appropriate revenue Court for the decision of that issue only and ultimately decide the suit accepting the finding of the revenue Court on the issue so referred.
6. This is our answer to the reference.