1. This is a second appeal by the defendants against concurring decree of the two lower Courts granting the plaintiffs possession of four plots. The lower appellate Court modified the decree of the Court of first instance only by refusing to grant the plaintiffs damages. The plaintiffs are admittedly zamindars, and the suit was brought under Section 44, Agra Tenancy Act, 3 of 1926, against defendants 1 to 13, as trespassers. The defendants claimed that they were in possession as mortgagees of a certain person called Subhag, who had, according to the plaint a grant rent-free for services, The mortgage in question has been produced dated 28th June 1893. Subhag died on 27th January 1925. The plaintiffs sued for possession of these four plots on the ground that the defendants are mere trespassers. The suit has been resisted and the appeal has been argued on a number of grounds. The lower appellate Court found as a fact that the grant was for services and not as the appellants argue a. grant rent-free without service. The appellants argued that the grant came under Section 186(1)(c), as a grant which had been; held rent-free for 50 years preceding the commencement of the Act and by the successors-in-interest to the original grantee.
2. Learned Counsel referred for this proposition to the wajibularz of 1840 which stated that all the muafi in the possession of muafidara will continue to be muafi without any interference on the part of the zamindars. At that period in 1840 the record was that the corresponding number which is No. 406 was the muafi of Bhikhari Batfarosh. This word corresponds to 'bhat,' that is, bard, and the claim of the plaintiffs is that the muafi was granted to the family bard in service tenure. The settlement of 1880, recorded the plot, then No. 911, as muafi khidmati of Kashi Rai and Bhikhari Rai, and there was a reference to a case No. 786 decided on 16th October 1882, in which this plot No. 91 along with two other plots was held to be muafi khidmati. In the wajibularz of 1880 there is a reference to the word 'khidmati' also and to this case No. 786, decided on 16th October 1882. The lower appellate Court therefore had evidence on which it could come to the finding that the land in question was held on service tenure. The grant therefore did not come under Section 186 as that section in Sub-section (1)(c), states that land held for services does not come under that sub-section. The grant on the other hand comes under Section 188(1)(b), a grant for the purpose of some specific service, religious or secular, which the landlord no longer requires. As the grant comes under that section and is not a grant coming under Section 185 or Section 186, the grant comes under Section 187 and also under Section 190, and as the grantee is liable to have rent assessed he shall be deemed to have bean a tenant from the date of the grant. As the grantee is deemed to be a tenant he therefore has not got a power to transfer, and the mortgage to the appellants on 28th June 1893 is an invalid mortgage. The appellants therefore are in the position of trespassers and the decree for possession from them was correct. The first question in the grounds of appeal was a technical question of procedure expressed as follows:
Because the question of proprietary title being involved in the case and the Court not having proceeded under Section 271, Tenancy Act, the decree is ultra vires.
3. The only claim to proprietary right is contained in para. 11 of the written statement and that claim was that as the rent-free grant had been held for more than two generations by Subhag Bhat and his ancestors and for more than 50 years, Subhag Bhat had therefore acquired proprietary right to it and was not an occupancy tenant. The determination of a question of this nature under Section 186, Agra Tenancy Act, is one specially for the Be-venue Court. The argument was made that it should have been referred to the Civil Court in accordance with the provisions of Section 271. It is to be noted that in Section 271(a), the sub-section which refers to Section 44, the question is to be referred when the defendant pleads that he has a proprietary right. Defendants 1 to 13 did not plead that they had a proprietary right, but they pleaded that Subhag had acquired a proprietary right under the provisions apparently of Section 186(1)(c). That is not a question which should have been referred to the Civil Court, and I do not think that the Revenue Court made an error in deciding that question. The proposition of the learned Counsel for the appellants was that assuming that the Revenue Court had made such an error, then the District Judge could not decide the appeal under Section 272. I shall deal with this question in general. The argument is that Section 272, Agra Tenancy Act, opens with the words:
If any such question of proprietary right has been determined by a Revenue Court and is a matter in issue in appeal in the Court of the District Judge or the High Court, etc.
4. Learned Counsel states that these words only mean that the question of proprietary right has been determined by the Revenue Court in accordance with Section 271, that is, if the Revenue Court has made a reference to the Civil Court. I do not find that the language in Section 271 supports this proposition. It is no doubt true that in the corresponding Section 199 of Act 2 of 1901, there was a right given to the Revenue Court in Sub-section 1(b) to determine the question of title itself and that right does not now appear in Section 271, but the language of Section 272 has been taken practically word for word from the language of Section 200 in the former Act. If it was intended that the alteration in the language of the preceding section should have an effect on the following section, then I consider that the language in the following section would have been altered. Moreover there is a difficulty in the argument of learned Counsel. In Section 272 the opening words are:
If any such question of proprietary right has been determined by a Revenue Court.
5. Now, he states that this means 'determined in accordance with Section 271.' But in Section 271 there is no provision for the determination of such a question by a Revenue Court. On the contrary in Section 271(1) it is provided that the question of proprietary right shall be decided by the Civil Court, and in Sub-section (3) that the Revenue Court shall then proceed to decide the suit accepting the finding of the Civil Court on the issue referred to it. The language therefore is in Section 271 that the Civil Court shall decide the issue of proprietary right and in Section 272 the case is mentioned where the Revenue Court has decided that issue or question. Therefore I hold that in Section 272 the opening words do not refer to a case where the Revenue Court has made a reference to the Civil Court, but to a case where it has not made such a reference, but has proceeded to decide the issue itself. Against this learned Counsel argued that there was no provision for such an appeal lying to the District Judge except the provision in Section 271(4)(a). This however is incorrect. In Section 242(3)(a) there is a provision for an appeal to the District Judge where a question of proprietary right has been in issue between the parties claiming such right in the Court of first instance and is in issue in appeal. Learned Counsel objected that this will not apply to the present suit as the sub-section excepts suits under Chap. 11. But the present plaint is not brought under Chap. 11, but was brought under Section 44, Chap. 5. It is true that the Court of first instance stated that the plaintiffs might avail themselves of the provisions of Section 192, but that does not alter the suit into one under Chap. 11, and further the suit so far as it concerns the ejectment of the appellants cannot be under Chap. 11 but must be under Section 44. For these reasons I consider that the decree of the lower appellate Court is correct, and I dismiss this second appeal with costs.