1. This appeal raises a question of jurisdiction depending mainly on the pleadings of the parties. The plaintiff alleges that he is the proprietor of certain land and that the defendants were in possession of the same as cultivators, but never had any proprietary right therein. In the course of certain Settlement proceedings the plaintiff tried to get an enhanced rent determined as payable by the defendants, and the defendants defeated his claim before the Settlement Court by pleading that they were in possession as proprietors. The plaintiff alleges that, whatever the defendants may once have been, they are now in wrongful possession of this land as trespassers. On this allegation he sues in the Civil Court for their ejectment. At the same time he claims an alternative relief; he says that, if it be found that the defendants are holding as tenants of the land in suit, the Court may make a declaration to that effect.
2. I think the suit is maintainable. It has been thrown out by both the Courts below, the lower Appellate Court relying on the decision of Ram Sukh v. Gokul Chand 21 A. 143 : A.W.N. (1898) 213. Another case referred to in support of the decision of the Courts below is that of Narain Singh v. Gobind Ram 9 Ind. Cas. 1022 : 8 A.L.J. 431 : 33 A. 523. I think it may be conceded at once to the respondents that the mere fact that a tenant denies the existence of a tenancy and claims title in himself does not ipso facto terminate the tenancy. If the Court, in going into the issues of fact raised by the pleadings in this case, were to find that the defendants at one time held this land as the tenants of the plaintiff, it would probably also find that they did not case to be tenants merely because they set up title in themselves. These considerations, however, seem to me by no means decisive as to the maintainability of the suit. Prima facie the plaintiff is suing to eject trespassers from his land, which he has a right to do in a Civil Court, in the alternative, he says that he is a person with a proprietary title to the land in suit upon which a cloud has been cast by the action of the defendants, and he asks the Court to make that title clear. Prima facie such a suit is maintainable under Section 42 of the Specific Relief Act. The question is whether this suit is barred by the provisions of Section 167 of the Agra Tenancy Act (Local Act II of 1901). As was rightly laid down in the case on which the lower Appellate Court has relied, so long as the provisions of the Tenancy Act are available to give a plaintiff the relief sought by him the suit must be filed in the Revenue Court, and the jurisdiction of the Civil Court cannot be invoked to determine any dispute or matter in respect of which a suit or application under the Tenancy Act might be brought or made. With regard to the first relief sought, the suggestion for the respondents is that the plaintiff might obtain appropriate relief by moving the Revenue Court to eject the defendants as tenants and with regard to both the reliefs sought, it is suggested that the plaintiff could obtain appropriate relief by suing for a declaration under Section 95, Clauses (b) and (o) of the same Act. It is clear from the written statement put in by the defendants in this case that any such suit on the part of the plaintiff in the Revenue Court would be resisted by the defendants on the allegation that they were in proprietary possession of the land in suit. The question whether there is or is not tenancy in existence between the parties calls for determination in some Court or other. Strictly speaking, on the pleadings as they stand in the case now before me, the existence of a tenancy is denied by both parties. The plaintiff says that, whatever they may once have been, the defendants are now mere trepassers. The defendants say that they are in possession as rightful owners. It is conceivable that the Court, after trying out the issues of fact and examining the evidence produced by both parties, might come to the conclusion that the plaintiff's allegations as to the determination of the tenancy were based upon an error of law and that, as a matter of fact, the defendants were in possession as tenants. If so, I think, the plaintiff is entitled to a declaration. The case is not covered by Section 95, Clause (6), of the Tenancy Act, which refers back to Section 6 of the same Act in which the different classes of tenants are specified. In any declaration, which the Court may make it should certainly be ^careful not to trespass on the jurisdiction of the Revenue Court by declaring the class of tenency, but I think it is competent to give a declaration as to the existence or non-existence of a tenancy in accordance with the definition of a tenant in Clause (5) of Section 4 of the Tenancy Act. There is plenty of case-law on the side of the plaintiff. I may refer to the case of Zubeda Bibi v. Sheo Charan 22 A.W.N. (1899) 189 and Chauharja Singh v. Sarabjit 15 Ind. Cas. 303 : 10 A.L.J. 85. See also on the question of a declaration the case of Rayaslam v. Moti Begam 4 A.L.J. 253 (Notes.), decided on the 20th of June 1907.
3. For the reasons I set aside the decision of the Courts below dismissing the suit and remand the case through the lower Appellate Court to the Court of first instance for trial on the merits. Costs of this appeal will be costs in the cause.