John Edge, Kt., C.J., Knox, Blair, Banerji, Aikman and Blennerhassett, JJ.
1. The plaintiffs alleged in their plaint that they were the tenants at fixed rates of a cultivatory holding; that at the settlement the settlement officer had entered the defendants as the tenants at fixed rates of the holding and had entered the plaintiffs simply as mortgagees, and they asked for a decree for maintenance of possession 'invalidating the proceeding of filling up the columns at the recent settlement.' We may observe that there was a party who had considerable interest in the determination of this question, namely, the zamindar, who was not made a party to the suit. He certainly would be entitled to be heard on the question as to who was and who was not his tenant of the holding and indeed on the further question as to whether, if the plaintiffs were tenants of the holding, they were tenants at fixed rates. He has not been made a party to the suit. However we do not dispose of this appeal on the ground of his absence.
2. The plaintiffs brought their suit in the Court of the Munsif of Ghazipur who gave them a decree. The defendants appealed. The Subordinate Judge in appeal confirmed the decree of the first Court, and from that decree the defendants have brought this appeal, ft has been referred to the Full Bench.
3. At the settlement the settlement officer, rightly or wrongly, entered the defendants in the khasra as the tenants at fixed rates of the holding in question, and he entered the plaintiffs simply as mortgagees of that holding.
4. The preliminary question which we have to decide is whether the Court had any jurisdiction to entertain this suit. The object of the suit was to obtain a direct or indirect declaration that the plaintiffs and not the defendants were the tenants at fixed rates of the holding in question and that the plaintiff's title was not that merely of mortgagees.
5. Now ordinarily the Civil Court is the Court which has the jurisdiction to grant declarations of title. The Court of Revenue no doubt has in certain cases jurisdiction to grant what is in effect a declaration of title, that is, as to the status of a tenant in cases arising under Section 10 of Act No. XII of 1881. Under Section 11 of the Code of Civil Procedure the jurisdiction is conferred upon Civil Courts of hearing and determining all civil suits, except in those cases which are removed by Acts of the Legislature from the cognizance of Civil Courts. We pointed out in a recent judgment the inconvenience, to say the least of it, of the Legislature allowing any doubt to exist as to the jurisdiction of Courts created by the Legislature, and we also indicated the evils which had arisen and still exist from the uncertainty as to whether the Civil Courts or the Courts of Revenue have the exclusive jurisdiction in certain cases relating to title. We need not go again over that ground.
6. It appears to us in the first instance that if a Civil Court exercised jurisdiction in this case by declaring that the plaintiffs were, and the defendants were not, the tenants at fixed rates of the holding in question, it would be exercising a jurisdiction which Section 241 of Act No. XIX of 1873, has prohibited the Civil Courts from exercising. If we declared that the plaintiffs were the tenants at fixed rates of this holding and that the defendants were not the tenants at fixed rates of the holding, we should be determining that the plaintiffs held a certain class of tenancy in the holding and that the defendants held no class of tenancy in the holding. The Act is rather obscurely worded. Take for example a case which might arise in which a Civil Court had the rival claimants to a holding before it, the plaintiffs alleging that they were tenants at fixed rates and that the defendants had nothing to do with it, the defendants on the other hand alleging that the plaintiffs were trespassers without any title, and that they, the defendants, were tenants at fixed rates. In that case, if the Civil Court had jurisdiction to entertain the suit, it would he necessary, the entire status of each side being denied by the other, for the Civil Court to ascertain, if it were to give the plaintiff a decree at all, what was the status of the plaintiff with regard to the holding. The Civil Court if satisfied, for example, that the plaintiff was an occupancy tenant whose right of occupancy had arisen, not under Section 6 of Act No. XII of 1881, but under Section 8 of that Act, could not make a declaration that the plaintiff, although the tenant of the holding, was, what he claimed to be, the tenant at fixed rates of the holding. In that event if the Civil Court interfered at all, it would be dealing with a subject for the Court of Revenue or the settlement officer and excluded from the cognizance of the Civil Court.
7. Looking at the case from another point of view, we have also arrived at the same conclusion that the Civil Court has no jurisdiction in this case. It is quite clear that either of the parties, plaintiffs or defendants, or both, in this suit, would be entitled to make an application under Section 10 of Act No. XII of 1881, to have the class of their tenancy determined. It is true that within the four corners of the Act there is no provision in such a case for bringing several rival claimants to such a determination before the Court of Revenue. The landlord would of course be a necessary party to any application under Section 10. However, by Section 211(i) of Act No. XII of 1381, the Local Government is empowered to make rules consistent with the Act as to the procedure to be followed on all applications under Section 95 of the Act. Under these powers the Local Government did make a rule by which the procedure prescribed by Chapter VI of the Act should be followed as far as it could be made applicable in all applications. Section 112A is in Chapter VI of that Act, and under that section the Court of Revenue in a suit may add the name of any person, as a plaintiff, if such person consents, and consent or no, as a defendant, whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon all questions involved in the suit. The effect of that rule appears to us to be that if these plaintiffs, for example, had made an application under Section 10 of Act No. XII of 1881, to the Court of Revenue, the Court of Revenue, if it was aware that the defendants were adverse claimants, might make an order adding these defendants as respondents to the application. What the Legislature intended should be the result, or bow that result should be dealt with, if a fraudulent and collusive application on the part of a person not a tenant, but whom the zamindar was willing to have as a tenant, were made in a Court of Revenue, and the Court of Revenue in ignorance that there was trial claimant made an order determining that the applicant, who in such case presumably had no title, was a tenant at fixed rates or any other class of tenant, we do not know.
8. It appears to us that Section 95(a) of Act No. XII of 1881, also prohibits the Civil Court from taking cognizance of this suit. It is to be hoped that the Legislature may at an early date by legislation remove the doubts which have hitherto existed as to the jurisdiction of Civil Courts and Courts of Revenue, on questions of this nature, and lay down a clear line of demarcation between the jurisdiction of Civil Courts as Courts of original jurisdiction and Courts of Revenue. We allow this appeal and dismiss the suit with costs in all Courts.
9. I have considerable hesitation in accepting the view adopted by my learned colleagues in this case; but having regard to the desirability of legislation of the nature suggested in a recent Full Bench case (S.A. No. 543 of 1893, supra, p. 59), I do not deem it proper to record a dissentient judgment. I therefore agree in the decree proposed.