1. This appeal arises from a suit brought by a zamindar for possession of an agricultural plot occupied by a person who is described by him as a trespasser and who was 'formerly his tenant. The suit was brought in the Court of the Munsif of Khurja, who acting under Section 271, Agra Tenancy Act (3 of 1926) remanded an issue to the Assistant Collector for the determination of the question whether the defendant was or was not a tenant of the plaintiff. The Assistant Collector returned a finding that the defendant was a trespasser, and the Munsif decreed the suit in favour of the plaintiff. This finding was affirmed in appeal by the Sessions and Subordinate Judge of Bulandshahr.
2. Neither of the Courts below appear to have considered the question as to whether this was a suit which under the new Tenancy Act can be tried in a civil Court. The facts were as follows: The plaintiff obtained a decree for ejectment against the defendant, who was then his tenant, on 26th May 1927. Under Section 94, Agra Tenancy Act, delivery of possession in execution of that decree had to be obtained prior to 30th June 1927. The plaintiff failed to obtain delivery of possession by that date, but he obtained a 'dakhalnama' giving formal possession on 14th July 1927. It does not appear that the defendant actually vacated possession. During the succeeding year other litigation was engaged in by the parties, and the upshot was that even after the commencement of the following agricultural year, that is in July 1928, the defendant was still in physical possession of this plot, and it was on 1st September 1924 that the plaintiff brought the present suit.
3. It appears to us that the dakhalnama' of 14th July 1927. either operates as a break in the tenancy of the defendant or it does not. If it does not, the defendant is still a tenant and there is no question that proceedings against him must be taken in the Revenue Court. If on the other hand the 'dakhalnama' does operate as a break in the tenancy and determines the tenancy, then the defendant is a person who has taken possession of the plot without the consent of the landholder and in contravention of the provisions of the Tenancy Act, and he is liable to ejectment on a suit by the landholder in the Revenue Court. In either case the civil Court has in our opinion no jurisdiction to determine the dispute between these parties. It is a matter for regret that a dispute of this nature should have been hanging on for no leas than five years; but we find ourselves unable to remedy this grievance. All that we can do is to return this plaint for presentation in the Revenue Court. We do not consider that this is a case in which either party should be made to pay the costs of the other. We allow the appeal, set aside the orders of the Courts below and direct the plaint to be returned for presentation in the Revenue Court. The parties to bear their own costs throughout.