1. This is an appeal by the defendants arising out of a suit for ejectment. In 1907 a usufructuary mortgage was executed by Daulat Earn of certain zamindari share including his sir plots. At the same time he exeouted a counterpart of a lease under a contract of tenancy taking over possession of the property as lessee until the mortgage was redeemed. Admittedly Daulat Ram retained actual possession of his properties, the usufructuary mortgagee being in constructive possession thereof. Subsequently Daulat Ram sold his equity of redemption to the defendants in the mortgaged property, at the same time executed what was called a deed of relinquishment in their favour under which he relinquished and surrendered his possessory rights as lessee or 4enant in favour of the defendants. The defendants obtained possession of these plots and remained in possession until the institution of the suit. The present suit was filed by the zamindars against the mortgagees under Section 44, Agra Tenancy Act, treating the defendants as persons who had either taken or retained possession of plots of land without the consent of the landholder and in contravention of the provisions of the Tenancy Act. One of the points raised in defence was that the defendants were proprietors. The trial Court, framed an issue as to the defendants being proprietors and referred the same to the Civil Court for decision. The learned Munsif found that the defendants were proprietors and returned his finding to the Revenue Court. The Revenue Court thereupon dismissed the suit of the plaintiffs altogether. The plaintiffs appealed to the District Judge and not to the Commissioner, and the first ground taken was that the finding of the trial Court that the land in suit was the sir of the defendants was not correct. There were other grounds taken which admittedly did not raise any question of proprietary title at all. The learned District Judge dismissed the appeal. On appeal to this Court it was allowed by a learned Judge and the plaintiffs' suit for possession was decreed with costs.
2. Two points arise for consideration in this Letters Patent appeal. The first is whether the appeal at all lay to the District Judge. There is no doubt that suits under Section 44, Tenancy Act come under Schedule 4, Group B, Serial No. 2, in which case an appeal would ordinarily lie to the Commissioner and not to the District Judge. Section 242(3) however provides for an appeal to the District Judge in a case where a question of proprietary right has been in issue between the parties and is in issue in the appeal or where a question of jurisdiction has been decided and is in issue in the appeal. No question of jurisdiction arose in this case, but it has been argued on behalf of the respondents that a question of proprietary right was raised in the first ground of appeal before the District Judge which has been quoted above. Sections 270 to 273 lay down the procedure when a question of proprietary right is raised in the Revenue Court. Expln. 2 to Section 271 however lays down that:
A question of proprietary right does not include the question whether land in the actual possession of a proprietor thereof is held by such proprietor as his sir or khudkasht or as a tenant or subtenant.
3. It follows that where the lands were the sir plots of the defendants or where they were their tenancies, it would not be a question of proprietary right within the meaning of the section. Accordingly the requirements of Section 242 were not fulfilled; and therefore no appeal lay to the District Judge at all. The appeal should have been filed in the Court of the Commissioner.
4. On the merits also it seems to us that the suit was totally misconceived. Section 44 applies to a case where a person has taken possession of the landholder's land with, out his consent and in contravention of the provisions of this Act. In such a case the landholder can treat the occupier as a mere trespasser and sue him in the Revenue Court for his ejectment. Where however the land had been validly let out to a tenant who was in lawful possession thereof and the latter has transferred the same to another person, there is a special Section 82 which is made applicable and in such a case Section 44 would not apply. Under Section 82, if a tenant transfers his holding or any portion thereof contrary to the Act, any person who thus obtained possession is liable to ejectment at the suit of the landholder. Sub-section (2) provides that to every such suit both the tenant and the person in whose favour the illegal transfer purports to have been made shall be made parties. If we were to apply the provisions of Section 44 to a case where a lawful tenant has unlawfully transferred his holding to another person, we would be nullifying the express provisions of Section 82(2) under which it is necessary that both the tenant and the transferee should be made parties. In a case of this kind, the proper course for the landholder is to bring his suit under Section 82, because it is the illegal act of his tenant which gives him the cause of action and it is not the occupation of the land by the transferee which amounts to an infringement of his right, because previously the landholder was not entitled to immediate possession of the land at all. Section 34 makes it quite clear that every transfer made by a tenant in contravention of the provisions of this Act shall be void.
5. It has been argued before us that the deed of relinquishment was really not a deed of transfer at all but was a mere surrender of the exproprietary rights of the tenant and not a transfer of his possessory right to the defendants. The position at that time was that the original mortgagor was lessee from the usufructuary mortgagee. If he had merely surrendered his rights and abandoned his holdings, the surrender would enure for the benefit of the mortgagees and other co-sharers in the mahal and the tenants would not possess to pass any interest to the defendants. On the other hand, in the deed of transfer it was the intention of the tenant to surrender and relinquish his rights of possession in favour of the defendants and not to the general body of co-sharers. Possession was also admittedly delivered to the defendants. The transfer itself was illegal and void, but we cannot but treat the transaction as a transfer of the holding, though unlawful, by the tenant to the defendants. Section 82 of the Act therefore applies.
6. We accordingly allow this appeal and setting aside the decrees of this Court and the lower Appellate Court, direct that the lower Appellate Court should return the memorandum of appeal filed in that Court to the plaintiffs for presentation to the proper Court. It appears that the two points on which the appeal has been allowed were not in this form pressed before the learned Judge of this Court. We accordingly order that the parties should bear their own costs in this Court.