1. The appellant sued in a Revenue Court for the ejectment of the respondent from plots Nos. 659 and 661. The Assistant Collector decreed the claim as regards No. 661 but dismissed it as regards No. 659 on the ground that the respondent had acquired a right of occupancy therein. The appellant appealed to the Commissioner who, after holding that the land had been originally let at a light runt for pasturage, and had only recently been cultivated by the respondent, ruled that the suit did not lie in a Revenue Court for the ejectment of a tenant from such land, and that the appellant's proper course was to give the respondent notice to quit, and, if he did not comply with it, to sue him in the Civil Court. The appellant then brought in the Court of a Munsif the suit out of which this appeal has arisen. The Munsif dismissed it on a ground which; I am unable to understand. His decision was confirmed by the Additional Subordinate Judge of Bareilly, who appears to have been of opinion that, whether the land was originally let for pasturage or not, it is now, and was, at the date of the institution of this suit, being cultivated by the respondent, and is therefore, a holding within the meaning of the Tenancy Act from which the respondent must be ejected, if at all, by suit in the Revenue Court. It might perhaps be sufficient to say that, as it was on the respondent's own plea that the Commissioner held that the suit could not be maintained in the Revenue Court, the respondent cannot say that the suit is not maintainable in the civil Court. But apart from that I am if opinion that this appeal should be allowed.
2. In this plaint the appellant stated that the land was originally let for pasturage, that the respondent did not attempt to plough it up till after the settlement of issues in the previous case, when the appellant pleaded that a right of occupancy could not be acquired in pasture land and that in that suit the respondent himself admitted that he had ploughed up the land after the issues had been settled. The respondent in his written statement did not even evasively deny the appellant's allegations. All that he said was that the land was under cultivation. Under these circumstances the allegations of the appellant must be taken to have been admitted (see Order VIII, Rule 5.)
3. The respondent does not dispute the correctness of my decision in Mohib All v. Surat Singh 15 Ind. Cas. 743, that a suit for the ejectment of a tenant from pasture land is cognizable by a Civil Court. That decision is in accordance with several decisions of the Board of Revenue of which it is sufficient to mention that of Chowdhury Muhammad Mahmud Khan v. Ganga Ram Selected Decisions No. 6 of 1910. In the last resort, the respondent contends that as the land has been under cultivation for some years it must be taken that the appellant has consented thereto, and the land has now become a holding within the meaning of the Act, whether it was so or not before. It is sufficient to say that the appellant has for some years been trying to eject the respondent from the land, and even if it could be shown that he had accepted rent from the respondent since the land was brought under cultivation, I should hold that the appellant was still entitled to contend that it is not a holding within the meaning of the Act.
4. For the above reasons I allow this appeal, set aside the decrees of the Courts below and decree the appellant's claim with costs in all three Courts.