1. In this case the plaintiff sued for ejectment of the defendants from two plots in the village. These plots had been originally in the abadi, but since the current settlement they have been included in the plaintiff's mahal. It was also in evidence that they are cultivated. The defence was that the plaintiff could not sue without joining other co-sharers, as the plots in suit were situated in the abadi which belonged to all the co-sharers in common. This plea was rejected by the trial Court, as it was found that according to the last settlement the abadi had been partitioned and the portion of the abadi containing the plots assigned to the plaintiff. There is no cross-appeal calling in question this finding. The trial Court found that the plots had of recent years been cultivated and were consequently land within the meaning of the definition of that word as used in the Tenancy Act. It further held that under Section 34, Tenancy Act, the plaintiff could treat the defendants as tenants for the purpose of suing them for ejectment. Accordingly it decreed the suit.
2. In first appeal the District Judge of Cawnpore held that either the plots were situated in the abadi and were held by the defendants as appurtenant to their houses in the abadi, or else they were held by them as mere trespassers. There being no contract of tenancy, the plaintiff could not sue for ejectment of the defendants as tenants. He held that Section 34 read with the definition of 'tenant' could not be invoked to justify the plaintiff in treating the defendants as tenants, because under Section 34, rent is only payable by a trespasser, if rent has been paid by some one else in the previous year, or if the rent has been fixed by the Collector.
3. In this appeal it is urged that the terms of Section 34, read with the definition of 'tenant,' allow a zamindar to treat a trespasser as tenant notwithstanding that no rent may have been paid for the land in the previous year or fixed by the Collector. It is also urged that assuming the trespasser could not be treated as a tenant, under Section 197, Tenancy Act, the District Judge was bound to dispose of the appeal as if the suit had been instituted in the civil Court and eject the defendants as trespassers.
4. The view that a person occupying land otherwise than under a contract of tenancy can be regarded as a tenant by invocation of Section 34 is based on the decision of Bali v. Naubat Singh  9 A. L. J. 771. The reasoning in the decision is that because the trespasser is under Section 34 liable to pay the rent payable in the previous year, he becomes a person by whom rent is payable, and thus becomes a tenant. He is, therefore, liable for rent as a tenant and for ejectment as a tenant. It appears to me that decision is open to question. No doubt if a landlord in virtue of Section 34 receives rent from a trespasser, the relationship of landlord and tenant is created from the time that he receives rent. The act of paying and taking rent constitutes a contract of tenancy, But the ruling has been invariably followed by this Court, and it is too late now to call it in question. At the same time if this decision is studied it is clear that it will not apply to the case of a trespasser, who though liable to be assessed to rent, is not under an immediate obligation to pay rent. No authority has been shown to me for holding that the decision of Bali v. Naubat Singh has been extended in this way. The District Judge would, therefore, appear to me to have been correct in holding that the defendants could not be regarded as tenants for the purpose of ejectment. The District Judge seems to have held that the defendants could also rely on the plea of occupying the land as appurtenant to their abadi. This was not so. Assuming that the plots originally came into the possession of the defendants as appurtenant to their residential plot in the abadi, their right to retain possession free of rent ceases upon their employment of the plots for the purposes of cultivation. Such a use of the land was inconsistent with the license or grant of it for the purposes of residence.
5. The District Judge, however, in effect held that the suit was bad on the ground of want of jurisdiction by a revenue Court. In this ha erred. Clearly under Section 197 he should have proceeded to treat the suit as if it had been brought in the civil Court. It is open to this Court in second appeal to treat the suit in the manner that the District Judge should have done. Accordingly I hold that the plea that the District Judge should have upheld the decree for their ejectment on the ground that he was entitled to decree their ejectment as mere trespassers is, in my opinion, good. For the above reasons, I allow this appeal with costs and restore the decree of the trial Court.