1. This is a second appeal in a suit for ejectment of a non-occupancy tenant under Section 58 of the Agra Tenancy Act. The appeal has apparently been preferred to the civil Court because a question of proprietary right is involved. The real question in dispute is whether the land in suit is situated in Dewara Jadid in the Azamgarh District of which the plaintiffs-appellants are zamindars or in the village of Dewara Sabitpur in the Fyzabad District of which the defendant Babu Narendra Bahadur Singh is in charge. The other defendants are the persons actually cultivating the land and claiming to cultivate under Babu Narendra Bahadur. The dispute between the principal parties, the plaintiffs and Babu Narendra Bahadur Singh, was the subject of proceedings in the criminal Court under Section 145, Criminal Procedure Code. In these proceedings Babu Narendra Bahadur Singh was found to be in possession and an order was passed in his favour under Section 145(6). The plaintiffs thereupon filed the present suit for his ejectment and that of the persons cultivating under him. No reference was made in the plaint to Section 34 of the Tenancy Act, but there was also no reference to any agreement of tenancy between the parties and it was admitted that no rent had been fixed. Under the circumstances it must have been clear to all parties that the suit was filed with reference to Section 34.
2. The Assistant Collector dismissed the suit on the ground that it was barred by Section 145, Criminal Procedure Code. The learned District Judge appears to agree with this conclusion and ho also finds that there is nothing to show that the defendants are tenants of the appellants. On both these grounds he has dismissed the appeal.
3. It is clear at the outset that Section 145, Criminal Procedure Code, is no bar to the present suit and no attempt has been made to support the judgment of the Court below on this point. Section 145 (5) lays down that the party in whose favour an order is passed shall be entitled to possession of the land 'until evicted therefrom in due course of law.' The expression 'eviction in due course of law' is just as much applicable to ejectment in proceedings under Chapter 5 of the Tenancy Act as it is to ejectment under the decree of a Civil Court.
4. The learned pleader for the respondent supports the judgment of the Court below on the ground, first that there was no relationship of landlord and tenant between parties, and secondly that Section 34 of the Tenancy Act not having been pleaded in the plaint it is not open to the appellant to fall back on the provisions of that section. The two points are closely connected. If the plaintiffs-appellants are entitled to rely on Section 34 it is not necessary for the success of their suit that any contract of tenancy should have been entered into between the parties. Section 34 applies wherever agricultural land is occupied by the defendant without the consent of the land-holder. If the plaintiffs' assertion that the land is within their zamindari is correct, a point which has not yet been determined, the case falls precisely within the terms of Section 34. It is true that Section 34 was not specifically pleaded, but I am not aware that it has ever been laid down that this omission is necessarily fatal and, as I have said above, in view of the pleading and of the circumstances of the case it must have been perfectly clear to all the parties concerned that this was the provision on which the plaintiffs were relying for the success of the suit. If the matters were res integra there is, in my opinion, much to be said for the view that Section 34 was not intended to be made use of for the purpose of ejectment. The land-holder has the option either of treating the squatter as a tenant and claiming rent from him under Section 34, or of treating him as a trespasser and ejecting him through the civil Court. The contrary view was, however, laid down by Sir George Knox in Balli v. Naubat Singh (1912) 9 A.L.J. 771 as far back as the year 1912, and was re-affirmed by a Bench of this in Court in Jagadardeo Singh v. Ali Hammad (1918) 40 All. 300 in 1918. It has also been adopted by the Board of Revenue in a large number of cases. The matter must, therefore be regarded as settled and it is not open to me to dissent from these rulings. It is certainly an anomalous position that a dispute between two rival zemindars should be fought out by proceedings under the Tenancy Act, but this is what Section 34, as interpreted by this Court, allows, and it is open to the defendant to ask to have the question of proprietary right referred to Civil Court under Section 199 of the Act. The suit has been disposed of on a preliminary point and the real question at issue between the parties has not been determined by either of the Courts below. I, therefore, set aside the decrees of both the Courts below and remand the case through the lower Appellate Court to the Court of first instance for determination on the merits. Costs here and heretofore will abide the result. The same order will govern Appeal No. 153.