1. This is an appeal against a judgment of a learned Judge of this Court and the only question for the decision is what is the legal effect of the decision said to have been given under Section 42, Land Revenue Act
2. The facts which have given rise to this appeal, briefly, are as follows: One Mahesh Prasad was recorded in the revenue papers as the occupancy tenant of certain holdings. He was a first cousin of the plaintiff Kashi Prasad and his brother Bindeshri Prasad. In the lifetime of Mahesh Prasad his sister's three sons, Ambika Prasad, Bhagwati Prasad and Kedar Prasad who were the first three defendant in the suit, out of which this appeal has arisen, made an application to the revenue Court to have their names recorded along with that of Mahesh Prasad, on the ground that they were Mahesh Prasad's sister's sons and were joint in cultivation with him. Bindeshri Prasad, defendant 4 in the suit, who is the elder of the two brothers, namely himself and Kashi Prasad, filed an objection in the revenue Court. Before any decision could be arrived at Mahesh Prasad died. Then the question arose as to whose name should be recorded in the revenue papers in place of Mahesh Prasad. The case of Bindeshri Prasad was that Mahesh Prasad was only nominally a tenant, but as a matter of fact, Bindeshri Prasad and his brother Kashi Prasad were the tenants of the holding and they alone were in possession of the same. On behalf of Ambika Prasad and his brothers, the contention was that they, as the nephews of Mahesh Prasad and as persons who were jointly cultivating the holding, should be entered in the revenue papers. The zamindar, a lady, Roshna Khatun was made a party to the proceedings. It appears that she, to start with, denied that either of the parties was entitled to be entered in the village papers in place of Mahesh Prasad, but, later on she received a nazrana of Rs. 100 from Ambika Prasad and his brothers and she agreed to the entry of these persons' names in the village papers. The Assistant Collector took up the matter and came to the conclusion that Mahesh Prasad was the real tenant of the holding and that Bindeshri Prasad and Kashi Prasad were not the tenants. He also held that although Bindeshri Prasad and Kashi Prasad were collateral relations of Mahesh Prasad they could not succeed to him because they were not in joint cultivation during the lifetime of Mahesh Prasad. As regards Ambika Prasad and his brothers the Assistant Collector was of opinion that they too could not succeed. They were not among the heirs enumerated in Section 22, Tenancy Act of 1901, although they were cultivating the holding jointly with Mahesh Prasad. In the result, the Assistant Collector, having found that Ambika Prasad and his brothers were actually in possession, directed that their names should be recorded as non-occupancy tenants, holding for a period of one year. He rejected the application of the zamindar that Ambika Prasad and his brothers should be recorded as occupancy tenants of the holding.
3. After this litigation in the revenue Court, Kashi Prasad filed the suit in the civil Court and he prayed for the following reliefs. He asked that it might be declared in favour of himself and his brother defendant 4 that they were the tenants of the several holdings in suit. Failing this declaration he asked for possession of the holdings jointly with his brother Bindeshri Prasad. Lastly, he asked for costs.
4. The defence raised by Ambika Prasad and his brothers was that the holding belonged to Mahesh Prasad alone and that the suit was barred as res judicata owing to the decision of the revenue Court. The zamindar is no party to the suit. The Munsif dismissed the suit.
5. On appeal by the plaintiff, the learned Subordinate Judge who heard the appeal came to the conclusion that the decision of the revenue Court was a bar to the maintenance of the present suit. But the learned Judge held, on the merits, that as regards one holding, namely No. 142, it was the property of the plaintiff's father Madho Prasad, although the name of Mahesh Prasad alone had been recorded in the revenue papers. In the result the appeal failed on the point of law and it was dismissed.
6. The matter came up before a learned single Judge of this Court on plaintiff's appeal and the learned Judge had decided that the decision on the point of law arrived at by the learned Subordinate Judge was correct.
7. Before us this decision has been assailed. The judgment of the revenue Court is on the record. The Assistant Collector gave his decision on 25th March 1925. There was an appeal to the Collector, but his judgment is not on the record. There was a second appeal to the Commissioner, and he dismissed the second appeal on 27th August 1925 on the ground that the finding of the Assistant Collector was a finding of fact and therefore no second appeal was maintainable.
8. Now we proceed to examine the judgment of the learned Assistant Collector and to see what was the legal effect of that judgment. The Assistant Collector does not say under what section of the Tenancy Act, 1901 or the Land Revenue Act of the same year, he was investigating the claim. It has been, however, conceded by the learned counsel for the parties before us that the proceedings started under S.39, Land Revenue Act, on the death of Mahesh Prasad. The original application of Ambika Prasad and others for being entered as joint tenants with Mahesh Prasad fell through. Naturally, on the death of Mahesh Prasad, the question was, who was entitled to be entered in place of Mahesh Prasad as occupancy tenants of the several holdings. Although we gather from the judgment of the Assistant Collector that the zamindar appeared on the scene we do not find that he was taking any active interest in the matter beyond what we have already stated. The Court framed three issues, and they were as follows:
1. Are Ambika Prasad and his brothers the daughter's sons of Munna Lal and did they share in cultivation with him at the time of his death, and are they in possession of the land in suit with occupancy rights?
2. Did Bindeshri Prasad share in cultivation with Mahesh Prasad, the last occupancy tenant of the land in suit, as his nearest collateral and is he in possession of it with occupancy rights?
3. What should be the entries in the village papers?
9. It will be noticed that the Assistant Collector entirely misconceived the application of Bindeshri Prasad. Bindeshri Prasad never claimed to succeed to Mahesh Prasad. His claim was that he and his brother Kashi Prasad were the occupancy tenants of the holding and it was immaterial whether Mahesh Prasad died or was alive. Bindeshri Prasad never claimed as successor to Mahesh Prasad. The Assistant Collector, however, did go into the question of title and came to the conclusion that Bindeshri Prasad's ancestors and Mahesh Prasad's ancestors had separated and there was nothing in common. He came to the conclusion, as already stated, that Ambika Prasad and his brothers were sister's sons of Mahesh Prasad, but they had no right to succeed to the occupancy tenancy, although they were joint in cultivation with Mahesh Prasad. The Assistant Collector negatived the right of Bindeshri Prasad and in the result made the order already quoted.
10. It is claimed on behalf of the respondents, that this judgment operates as res judicata on the present controversy. In this Court, it has been over and over again held, that a suit between rival tenants is cognizable by the civil Court. It is to be remembered that the present suit was instituted before the Tenancy Act of 1926 came into force. It must, therefore, be taken for granted that the suit, as framed, and the suit to which the zamindar was not a party, was prima facie cognizable by the civil Court. Then, the question is, whether the decision of 25th March 1925 given by the Assistant Collector ousts that jurisdiction of the civil Court.
11. It is claimed for this judgment of the Assistant Collector that it was given under Section 42, Land Revenue Act, although there 13 no indication in the judgment itself that the Assistant Collector was proceeding under 8. 42. But we may assume that he did so. We are, however, of opinion, that the scope of Section 42 is vary much limited.
12. Section 39, Land Revenue Act of 1901, and Sections 40 and 42 are all to be read together. Section 39 starts with the procedure to be observed in the case of transfers and charges affecting interest in land other than those referred to in Section 34, This means that where the question of transfers and charges relating to non-proprietary rights, in respect of which a register under Clause (e), Section 32, is to be maintained, arises, this section indicates the procedure. Section 40 lays down that in case of a dispute regarding entries in the annual registers (which include the register under 01. (e) Section 32), the dispute shall be decided on the basis of possession. To start with therefore, possession and possession, alone is the criterion for entry of names in the revenue papers. Section 40 also lays down, although we are not concerned with this aspect of the case, that where possession cannot be ascertained, a summary enquiry would be held as to the person best entitled to the property and that person shall be put in possession. Now, a dispute having arisen on the death of Mahesh Prasad (for it does not matter whether Mahesh Prasad was really dead or alive) that dispute was to be settled on the basis of possession and possession alone. Then we come to Section 42. It runs as follows:
In case of any dispute respecting the class of tenure of any tenant, the Collector shall decide according to the principles laid down in the North-Western Provinces Tenancy Act, 1901, or the Oudh Rant Act, 1866, as the case may be.
13. It will be noticed that it is only in the case of a dispute of a particular kind that the Collector is directed to proceed to decide in accordance with certain principles mentioned therein. That dispute relates to 'the class or tenure of any tenant.' On a natural reading of the words, this means that where the question is, who is the tenant, Section 42 has no application at all. Given the tenant, the question must be, what is the class to which he belongs, or what is the nature of his tenure? The word tenure' is not defined in the Land Revenue Act, 1901. We have looked into Murray's New English Dictionary and we find the following meaning given in it:
The conditions of service etc, under which a tenement is held of a superior.
14. The 'class' shows whether a tenant is a fixed rate tenant or an occupancy tenant or a non-occupancy tenant. The 'tenure' would indicate the terms under which a particular tenant holds land. It might be that he is holding under a service tenure or for a particular term of years or as a permanent lessee and so on. The scope of Section 42, therefore, is very limited and is limited to the case of a dispute relating to class and tenure. We need not repeat that and consequently where the question is; Who is the tenant Section 42 has no relation to such a dispute. It is only in the case of a named tenant that the question of his class or tenure would arise. It would be a mistake to read into Section 42 all the provisions of Section 95, Tenancy Act 1901. Section 95 Tenancy Act mentions six items as to which a declaration may be obtained either by the landholder or the tenant. Section 42 is confined probably to only two of these items. But in any case it excludes Clause (a) which relates to 'the name and description of the tenant of the holding.' 01. (b) will come under the word 'class' under Section 42 and the Clauses (c) to (f) may come under the word tenure,' namely the conditions of holding. But in no case 01. (a), namely name and description of the tenant can come under the provisions of Section 42.
15. This being our opinion, on the scope of Section 42, assuming that the judgment was given under that section, it seems to follow clearly that the Assistant Collector's decision, namely the plaintiff's brother or the plaintiff himself, was not entitled to the tenancy cannot operate is res judicata in the present proceedings. The Assistant Collector had to decide the case only on the basis of possession and he had no doubt that Ambika Prasad and his brothers alone were in possession. He gave effect to this finding by recording their names.
16. A large number of cases has been cited before us, but they were decided on the peculiar facts involved in them. The only case that has some bearing is the case of Sheomber Singh v. Sheomber Singh : AIR1927All780 , because it contains a mention of Section 42, Land Revenue Act. But that case is clearly distinguishable, inasmuch as it was a suit in the civil Court between the zamindar and the person declared to be the tenant whereas the present case is a suit between rival tenants. There may be, in this judgment some observations in the latter part of the case, with which we may find ourselves unable to be in agreement But for reasons already given we need not discuss the matter.
17. It was next argued that as the landholder was not a party to the present proceedings, he might take effectual steps to eject the plaintiff. On this ground it was further argued that this Court should refrain from making a decree which might be ineffectual or which might be disregarded by the revenue Court eventually. But we are not concerned at all with this aspect of the case. As already stated, in cases after cases, this Court has held that a suit between rival claimants to a tenancy is not cognizable by the revenue Court and we have no reason to decide otherwise. It would not necessarily follow that our judgment would be useless to the party in whose favour it would be pronounced.
18. In the result the suit should succeed partially. The lower appellate Court has found that the plaintiff and defendant 4 are the real tenants of the holding No. 142 only. Defendants 1 to 3 must be assumed to be in possession because their names have been entered in the revenue papers on the basis of possession.
19. In the result we set aside the decrees of the Court below, including the judgment of this Court and grant to the plaintiff a decree for possession over No. 142 jointly with defendant 4 Bindeshri Prasad. We grant a declaration to the plaintiff that the holding No. 29 belongs to him and defendant 4 jointly, their title to it being undisputed by the defendants. The rest of the claim stands dismissed. The appellant will have his costs of both of his appeals in this Court. As regards the costs in the. Court of first instance and the lower appellate Court parties will pay their own, as they have succeeded almost equally.