1. This is an appeal by the plaintiffs in a suit brought by the zamindar in the Revenue Court under Section 44, Agra Tenancy Act, for the ejectment of the defendants on the allegation that they were trespassers and for the recovery of Rs. 302: as damages. The Assistant Collector decreed the suit for ejectment and for the recovery of Rs. 253-10-0 as damages. Some of the defendants appealed to the Court of the District Judge and the learned District Judge has allowed the appeal and has dismissed the suit. The land in question is an occupancy holding of which one Sheonandan Lal was the tenant in the year 1883. On 1st June in that year Sheonandan. Lal had executed a usufructuary mortgage in favour of Bhawani Dayal Singh, a predecessor in title of the principal contesting defendants-respondents. In the year 1892 proceedings for ejectment were taken by the zamindar against the mortgagor and the mortgagee. In these proceedings there was a compromise on 16th May 1892 by which the defendants in these proceedings agreed to pay enhanced rent and the zamindar agreed to allow the mortgagee to remain in possession. On 14th June 1893 Mahanand Lal, who was Sheonandan Lal's successor in interest, executed a fresh usufructuary mortgage in favour of the predecessor-in-title of the contesting defendants and the mortgagee has continued in possession of the occupancy holding. On 4th October 1933, the persons who had succeeded to the occupancy holding as tenants executed a deed of relinquishment and surrendered the holding to the zamindar. The zamindar in his turn executed, on 5th October 1933, a lease in favour of two persons, Hira Lal and Indu Bhushan Lal, purporting to confer on them occupancy rights. The suit out of which this appeal' arises was then filed by these three persons, namely the zamindar, His Highness the Maharaja of Benares, Hira Lal and Indu Bhushan Lal. The first three defendants were the representatives of the mortgagee and the remaining defendants were their sub-tenants. The allegation of the plaintiffs was that the defendants were trespassers and were in occupation of the land without the plaintiffs' consent. The representatives of the mortgagee contested the suit and, besides taking other pleas, they pleaded that the Revenue Court had no jurisdiction to hear the suit and that in view of the provisions of Section 32(2), Agra Tenancy Act, the plaintiffs were not entitled to eject them. The Court of first instance remarked on the first point that it had been conceded in arguments before, it that the suit was cognizable by the Revenue Court and therefore decided that it had jurisdiction. On the second point it held that the contesting defendants were not entitled to claim the benefit of the provision of Section 32, Tenancy Act. In appeal before the lower Appellate Court, the point of jurisdiction was again raised by the defendants-appellants. The lower Appellate Court entertained the appeal and held that the defendants were entitled to the benefit of the provisions contained in Section 32(2), Tenancy Act, and dismissed the suit.
2. It has been contended by the learned Counsel for the plaintiffs-appellants before us that no appeal lay to the District Judge and that therefore the decree passed by him is without jurisdiction. It is argued that a suit under Section 44, Tenancy Act, is included in Group B of Schedule 4, Tenancy Act, and that appeals from decrees in such suits lie to the Commissioner. Section 242(3), Tenancy Act, provides that an appeal shall lie to the District Judge from the decree of the Assistant Collector of the First Class in all suits in which a question of jurisdiction has been decided and is in issue in the appeal. The argument of the learned Counsel is that as the counsel for the defendants conceded in arguments before the Revenue Court that it had jurisdiction, the Revenue Court cannot be said to have decided any question of jurisdiction and that the defendants had no right to raise that point again in appeal and that the point could not therefore be in issue in the appeal. We are unable to accept this contention. The plea that the Revenue Court had no jurisdiction to entertain the suit had been clearly taken in para. 15 of the written statement of defendant 1 and it had been alleged in that paragraph that the plaintiffs had taken collusive proceedings in order to oust the jurisdiction of the Civil Court. The Assistant Collector had framed an issue on the point, being Issue 3, in these words: 'Is the suit cognizable by the Revenue Court?' In his judgment the Assistant Collector has dealt with Issue 3 in these words:
It has been frankly conceded in arguments that the suit is cognizable by the Revenue Court. I therefore answer this issue in the affirmative.
3. It seems to us that there can be no doubt that the question of jurisdiction was decided by the Assistant Collector. It is true that it was decided in favour of the plaintiffs and it was held that the Revenue Court had jurisdiction because the counsel for the defendants conceded that he wag unable to press the point. Whatever may be the ground on which the Court decided the issue, there can be no doubt that the Court did decide it. In their memorandum of appeal to the lower Appellate Court, the defendants raised the question again in their first two grounds of appeal. In ground No. 2 it was alleged that any admission made by counsel on a point of law was not binding on the appellants. There can therefore be no doubt that the point was put in issue in the appeal. Thus all the requirements of Section 242(3)(b), Tenancy Act, were satisfied. We are therefore of opinion that the appeal lay to the District Judge. The next argument advanced by the learned Counsel for the appellants is that the defendants are not entitled to the benefit of the provisions of Sub-section (2) of Section 32, Tenancy Act. That Sub-section is as follows:
Where at the time o E the extinction by surrender or abandonment of the interest in a holding of a tenant whose interest is not transferable, there is in existence a valid sub-lease or mortgage of the whole or of a portion of the holding executed before first day of January 1902 all covenants binding and enforceable as between the tenant and the sub-tenant or mortgagee, as the case may be, shall, subject to Sub-section (4), be binding and enforceable as between the tenant's landholder and the sub-tenant or mortgagee for the remainder of the term of the sub-lease or mortgage, or for the lifetime of the tenant, or for 10 years, whichever period may be the shortest.
4. The contention of the learned Counsel is that as the mortgage in favour of the contesting defendants provides that redemption was to take place in the month of Chait in any year, it must be taken that no term is fixed in the mortgage and that therefore it is a mortgage 'from year to year,' We cannot accept this contention. The mortgage deed fixes no term. It is dated 14th June 1893 and has not yet been redeemed. The mortgage therefore is subsisting and is in force and no question of the term or 'the remainder of the term of the mortgage' having expired arises. The tenants who have executed the deed of surrender in favour of the landlord are admittedly alive, and the deed of surrender having been executed on 4th October 1933, lit, is obvious that 10 years have not yet expired. The mortgagees defendants are therefore clearly entitled to rely on Sub-section (2) of Section 32, Tenancy Act. The plaintiffs are therefore not entitled to eject them, and their suit has been rightly dismissed by the lower Appellate Court. For the reason given above, we dismiss this appeal with cost.