1. This second appeal arises out of a suit brought by the plaintiffs-respondents for ejectment of defendants from certain lands alleged to be part of village Darweshpur which admittedly belongs to the plaintiffs-respondents. The defendants-appellants are fixed rate tenants in an adjoining village named Sultanpur which belongs to certain other persons not interested in this litigation. The defendants claim the lands in dispute as part of their fixed rate tenancy denying the plaintiffs' proprietary rights with respect to them on the ground that they lay within the boundary of village Sultanpur with which the plaintiffs-respondents have no concern. The Court of first instance found in favour of the plaintiffs on the merits of the case, but dismissed it on a technical ground, namely, that the suit is barred by the provisions of Section 23, Rule 1(3) inasmuch as a previous suit of a similar character had been withdrawn in 1918 by the plaintiffs-respondents without obtaining the leave of the Court to bring a fresh suit. It should be noted that the present suit was for ejectment of the defendants with effect from 1st July 1924. On appeal by the plaintiffs the learned District Judge held that the suit was not barred by Order 23, Rule 1(3), Civil P.C. and decreed the suit directing the ejectment of the defendants who have preferred this second appeal.
2. Two questions have been argued by the learned Counsel for the defendants-appellants in support of the appeal. Firstly, it is maintained, that Order 23, Rule 1(3), Civil P.C. bars the suit as held by the Court of first instance. I am of opinion that this contention is untenable. Order 23 Rule 1(3), Civil P.C., provides:
Where the plaintiff withdraws from a suit... without the permission referred to in Sub-rule (2)... he shall be precluded from instituting any fresh suit in respect of such subject-matter....
3. It seems to me that the subject-matter of a suit for ejectment of a year to year tenant, with effect from a certain year is not the same as his ejectment with effect from a subsequent year. The right of the landlord in such a case is a recurring right and so long as the tenancy subsists he can always maintain an action for ejectment. To hold that, because the landlord once abandoned his attempt to eject his tenant by withdrawing his suit without obtaining permission to institute another suit, a subsequent suit is barred, is tantamount to holding that a year to year tenant became a perpetual lessee in consequence of such withdrawal. Order 23, Rule 1(3) can only bar a second suit for ejectment instituted after the withdrawal of the first without the necessary permission of the Court if the object of both suits is to eject the defendant with effect from the same year. The learned District Judge has referred to a, case of this Court, namely, Mt. Kumari v. Adit Misir : AIR1926All34 , which supports the view taken by me in agreement with the learned District Judge. It is next contended that the learned District Judge had no jurisdiction to hear the appeal preferred by the plaintiffs, as the question of proprietary right arising in the case had been abandoned by the respondents previous to the hearing of the appeal on the merits. This argument has no force. Section 177, Ten. Act 2 of 1901, provides that
an appeal shall lie to the District Judge from the decree of an Assistant Collector of the first class in any of the suits... in which a question of proprietary title has been in issue in the first instance and is a matter in issue in appeal.
4. The forum of appeal is determined by the nature of the questions which arise before the Court of first instance and which are raised in the memorandum of appeal. If a controversy relating to proprietary right exists at the time when the appeal was filed, subsequent abandonment of a plea by the respondent before the District Judge, which makes it unnecessary for the question of proprietary right being decided does not deprive the District Judge of jurisdiction to hear the appeal. It cannot be disputed that the appeal did originally lie to the District Judge. The appellant who was the respondent before him could not divest him of that jurisdiction by withdrawing his objection as regards the plaintiff's proprietary right in the land in dispute so as to make the commissioner's Court the proper forum of appeal from that stage. For these reasons I hold that the learned District Judge had jurisdiction to hear the appeal which had been rightly preferred to him.
5. In view of my findings on the two questions raised in appeal it must fail and is dismissed with costs.