1. This appeal arises out of a suit brought by the plaintiffs-appellants for a declaration that the sale deed, executed by the legal representatives of one Mr. John Lemaistre in favour of the defendant-respondent on 25th July 1925 is null and void as against the plaintiffs, who are the proprietors of the land to which the aforesaid sale deed relates and for recovery of possession with mesne profits and perpetual injunction restraining the defendant from cutting down trees standing on the land. The land in dispute consists of Nos. 2781 and 2783/1, measuring 5 bighas 10 biswas and 1 bigha 15 biswas respectively, situate in patti Jasso in the town of Bijnor. It is not disputed that the plaintiffs-appellants are the owners of the plots in dispute which are mixed up with plots 2783/2 and 2782/3, belonging to certain proprietors, who are not parties to this case, as also with Nos. 2782 and 2784, which belonged to Mr. John Lemaistre himself. There is a kothi on a portion of the land to which, all these khasra numbers refer. Parties are not agreed as regards the exact situation of the kothi. In the view of the case we are inclined to take, it is not necessary to locate it with reference to the exact khasra number.
2. The plaintiffs case, as stated in their plaint, is that Mr. John Lemaistre was an occupancy tenant of the land claimed by them and that his successor-in-title transferred it to the defendant by the sale deed dated 25th July 1925, though as occupancy tenants they had no right to do so. Accordingly it is alleged that the defendant is a trespasser. It should be noted that the heirs of Mr. Lemaistre, who, if the plaintiffs allegations are true, should now be considered to be occupancy tenants, have not been made parties to the case. The suit was resisted on a variety of grounds, including the plea that the civil Court has no jurisdiction to entertain a suit on the allegations to be found in the plaint. It is pleaded that the land in suit had been leased to Mr. Lemaistre some time before 1849 by the then proprietors thereof in perpetuity and for building purposes, that the successors-in-interest of John Lemaistre had a transferable right and that by the sale dated 25th July 1925 the defendant stepped into the shoes of his transferors. A number of other pleas were also raised and have been decided by the lower Court. It is however not necessary to mention them in detail for the purposes of the present appeal. The learned Subordinate Judge dismissed the plaintiff's suit, holding against the plaintiffs on the main question raised by their plaint.
3. We are clearly of opinion that on the allegations contained in the plaint, the suit was rightly instituted in the civil Court. The question of jurisdiction must, in the first instance, be decided on the statement of facts to be found in the plaint. The plaintiffs have not impleaded the tenants themselves, who, according to them, had no right to transfer. If this is so, transfer of their tenancy land was void and conferred no right on the transferee (defendant), who is accordingly a trespasser. A suit for ejectment of a trespasser lies in the civil Court. Reference has been made to Section 31(2), Agra Tenancy Act (2 of 1901), which was in force when the suit was instituted and provided that when a tenant has made any transfer, the landholder may sue for the cancellation of the sale, or for the ejectment of the tenant and the sub-lessee or other transferee, or for both. Section 167, read with Schedule 4. Group B, No. 18, makes a suit of the character contemplated by Section 31(2) cognizable exclusively by a Revenue Court. That section however applies to a suit (a) for the cancellation of the transfer, or (b) for the ejectment of the tenant together with the transferee, or (b) for both the reliefs (a) and (b). The plaintiffs have not sued for the ejectment of both the tenant and the transferee. In case (b) above it is only if the object of the suit is to terminate the tenancy and to eject the tenant and his transferee that Section 31(2) can apply. The ejectment of the transferee, assuming he is only a trespasser, will not necessarily imply extinguishment of the right of the tenant. In this view, the present suit, so far as it is for ejectment of the defendant, is cognizable by a civil Court. Whether on facts found the civil Court can grant the relief of ejectment is another matter. The initial jurisdiction is determined by the allegations made in. the plaint which merely seeks the ejectment of an alleged trespasser. It is not necessary to decide the further question whether the relief of declaration, claimed by the plaintiff in respect of the sale deed of 25th July 1925, can be granted by the civil Court.
4. As regards the exact nature of Mr. John Lemaistre's right in the land in dispute, there is a good deal of obscurity. The land was acquired by him, according to the defendant, before 1849 and, according to the plaintiffs, after 1871. No written grant has been produced by either party. It is not suggested by any of them that the original entry of Mr. Lemaistre on the land in dispute was otherwise than under an oral arrangement. The terms; of the tenancy must therefore be gathered from the conduct of the parties and the apparent use which has been made of the land ever since the grant. (After considering the evidence his Lordship came to the conclusion that the plaintiffs-appellants have failed to establish that the land in dispute was held by Mr. John Lemaistre as an agricultural tenant). No less than three commissioners were appointed by the lower Court to ascertain whether the kothi or any part of it stood on the land in dispute. They arrived at different conclusions.
5. In our opinion, it is wholly unnecessary to determine that question. If the land in dispute, or any part of it, is covered by I the kothi, the presumption will be that it was let for building purposes, and there can be no doubt that the lessee of land let for building purposes has a right of transfer. If, on the other hand, no part of the land in dispute forms site of the kothi and is merely appurtenant to it as part of its compound and, was let as such, the lessee should be deemed to possess a right of transfer of the nature described in Section 108(j), T.P. Act (No. 4 of 1882) which merely enacts pre-existing law. It was not argued before us, though the question was put to the learned advocate for the plaintiffs-appellants, that the law before 1882 was in this respect different from that contained in the Transfer of Property Act (4 of 1882). Unless the land in dispute was held by Mr. Lemaistre as an agricultural tenant, in which case different considerations may apply, he must be deemed to be a lessee subject to the general law governing landlord and tenant, and not that applicable to agricultural holdings. In that view the heirs of Mr. John Lemaistre had every right to
'transfer absolutely or by way of mortgage or sublease the whole or any part of their interest in the property and any transferee of such interest or part may again transfer it : Section 108(j). The lesees shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease': ibid.
6. It is not necessary to determine for the purpose of this case whether Mr. John Lemaistre had-rights in perpetuity, nor is it necessary to ascertain other terms of the grant under which he held. It is enough for the purpose of this case to find that ha and his successor-in-interest did not hold as tenants, having no right of transfer. The plaintiffs' suit was rightly dismissed, and on our findings this appeal must also fail. It is accordingly dismissed with costs.