1. This is a first appeal from order brought by a defendant against an order of remand by the lower appellate Court. The plaintiffs and defendant are both tenants in a certain village, mauza. Birsingnpur, and the question is whether-the civil Court has jurisdiction to entertain the plaint. The plaint set out in para. 1 that the father of the plaintiffs-took a lease from the zamindars of the village for planting a grove, on 7th October 1911, of two plots 138/2 and 138/4 in, patti No. 1, and in para. 2 it was set out that the defendant was an occupancy tenant of plots Nos. 134 and 137. The patties in which defendant's plots are situated were not specified in the plaint as in the written statement, but by affidavit it has been stated that plot No. 134 is in patti No. 2 and plot No. 137 is in four patties, Nos. 1, 2, 3 and 4. It is further set out in the affidavits that the zammdars of patti No. 1 are Tribeni Sahai and Gomti Sahai and the zamindar of patti No. 2 is Mt. Bari, widow of Gokul Prasad, and of patti No. 3 Brij Behari Lai, Mathura Prasad, Sundar Lal, Lal Bahadur and Mohan, and of patti No. 4, Tribeni Sahai and Gomti Sahai. It has not been shown whether Mt. Bari is the widow of any one connected with Tribeni Sahai and Gomti Sahai; nor has it been shown whether the allegation in the plaint that the zamindars of the village granted the perpetual lease to the plaintiffs is incorrect. Learned Counsel for the plaintiffs now desires to resile from that statement and to argue that this perpetual lease shows that it was only the zamindars of patti No. 1 who granted the lease. This however will be a matter for the Courts below to determine and the lease is not on the record and has not been produced before us.
2. The plaint further proceeds to set out in para. 6 that the cause of action arose on 1st August 1933 when a suit for demarcation of boundaries between the plots of the plaintiffs and the plots of the defendant was decided. The declaration asked for is a declaration that a certain portion of land, 6 yds. by 34 yds. in area, which was included by the revenue Court in the defendant's plot No. 134, and an area of land, 6 yds. by 22 yds. which was included by the revenue Court in the defendant's plot No. 137, really appertain to the grove of the plaintiffs, and that the defendant should be dispossessed therefrom and possession given to the plaintiffs. Now the Court below has held that jurisdiction lies in the civil Court and the Court has assumed that the question is merely between the zamindars of the particular plots in question. But on the allegation in the plaint that the plaintiffs are tenants of the zamindars of the village, this theory would be incorrect. We are of opinion that the question of jurisdiction is determined by Sections 99 and 121, Agra Tenancy Act, and the lower appellate Court must see whether the suit will or will not lie under those sections. Those sections provide that the revenue Court has jurisdiction for a suit by any tenant ejected from or prevented from obtaining possession of his holding or any part thereof by any person claiming through the landholder.
3. If therefore the landholders of the defendant are some of the zamindars of the village who granted the perpetual lease to the plaintiffs, Section 99 will apply. If on the other hand the landholders of the defendant or their predecessors did not join in granting the lease to the plaintiffs Section 99 will not apply. In other words, if the landholders of the parties are different then the civil Court has jurisdiction. If on the other hand the landholders of the parties are the same the revenue Court has jurisdiction. Accordingly we set the order of the lower appellate Court aside and we direct the lower appellate Court to re-admit this first appeal to its file and to dispose of this first appeal according to law in view of the directions which we have given. Costs here and hitherto incurred will abide the result. An opportunity will be given to the plaintiffs to produce the lease in question and the parties will be at liberty to produce any further evidence as to who are the zamindars of the parties.