1. This is a defendant's appeal arising out of a suit for possession of properties specified in the plaint and for the recovery of mesne profits. The question raised in the appeal is a short and simple one. The facts may be briefly stated. Defendant 2 on 18th September 1924 executed a simple mortgage deed by which he mortgaged his one quarter share of Mauza Kakarghata to the plaintiff. The plaintiff brought a suit on the footing of the mortgage and obtained a decree on 12th May 1928. The decree she put into execution. The mortgaged property was auctioned and purchased by the plaintiff herself on 21st November 1928. Prior to the auction-sale, namely on 20th April 1928, the mortgagor and his co-sharers executed a theka whereby they leased the property in suit and the shares of the other cosharers for a period of twelve years to defendant 1. Following upon the execution of this theka defendant 1 obtained mutation in respect of the entire property leased in his favour.
2. The plaintiff filed the present suit in which she prayed for possession of the property which was mortgaged and which formed part of the property which was leased under the lease of 20th April 1928 and the sum of Rs. 234-10-9 in name of mesne profits. The learned Subordinate Judge has held that the plaintiff must have recourse to the Revenue Court for possession of property purchased by her and for the mesne profits due to her. He has, however, granted a declaration in favour of the plaintiff that the lease of 20th April 1928 is not binding upon the plaintiff by virtue of the provisions of Section 52, T.P. Act.
3. It appears from the judgment of the learned Subordinate Judge that the question as to whether the lease was void in respect of the mortgaged property under the provisions of Section 52, T.P. Act, was referred to the revenue Court for decision. The revenue Court held that the theka of 20th April 1928 was a transfer of property affecting the rights of the plaintiff within the meaning of Section 52, T.P. Act, and as such was void against the plaintiff. Learned Counsel for the appellant advanced two arguments in appeal. He contended in the first instance that the learned Subordinate Judge was not entitled to grant a declaration that the lease of 20th April 1928 was not binding on the plaintiff, inasmuch as there was no prayer for such a declaration in the plaint. Prayer (d), however, may be taken to include such a declaration. This prayer is as follows:
Besides or in place of the reliefs sought, any other reliefs that may be deemed beneficial by the Court may be granted to the plaintiff.
4. The learned Counsel for the appellant contended in the second place that the learned Subordinate Judge had no jurisdiction to grant the declaration that the lease was not binding upon the plaintiff. The proper forum, he contended, to decide the validity of the lease in question was the revenue Court. The revenue Court, he maintained, alone could grant possession and award mesne profits. Before, however, the revenue Court could pass a decree awarding possession and mesne profits, it would in the first place have to come to the decision that the lease was void so far as the mortgaged property was concerned. Since it was within the competency of the revenue Court to decide incidentally that the lease was invalid to this extent, learned Counsel maintained that the jurisdiction of the civil Court was inferentially excluded. In support of this argument learned Counsel referred to the cases in Sher Khan v. Debi Prasad 1915 37 All 254 and Fateh Singh v. Gopal Narain 1925 23 ALJ 941. It appears from a consideration of the decisions referred to that there is a difference of opinion in this Court as to the extent of the jurisdiction of the civil Court under Section 52, T.P. Act. In the earlier case cited, namely Sher Khan v. Debi Prasad 1915 37 All 254, it is clear from the judgment of Chamier, J. that his view was that the civil Court had jurisdiction to declare a lease invalid under the provisions of Section 52, T.P. Act.
5. In that case, however, he did not dissent from the decision of Piggot, J., because he took the view that the earlier decisions formed a cursus curiae to the effect that the revenue Court alone could grant such a declaration. In Aziz Fatma v. Makund Lal 1932 ALJ 572, Pullan and Niamatullah, JJ., held that the civil Court could grant a declaration that a lease was void in the circumstances similar to those which obtain in the present case. Upon a consideration of the authorities, we are inclined to follow the decision in the latest case which was decided by Pullan and Niamatullah, JJ. It appears to us that the general power which the civil Courts have, to give effect to the provisions of Section 52, T.P. Act, cannot be inferentially cut down, because the revenue Court in a suit for a declaration and mesne profits may have to record a decision as to whether a lease is invalid in view of the provisions of Section 52, T.P. Act. Apart from that, however, in the present case we have no difficulty in holding that the learned Subordinate Judge had jurisdiction to grant the declaration which he has given. The plaintiff's remedy against defendant 1 in the revenue Court could only be under Section 44, Agra Tenancy Act. Section 44 is in the following terms:
A person taking or retaining possession of a plot or plots of land without the consent of the land-holder and in contravention of the provisions of this Act shall be liable to ejectment on the suit of the land-holder and also to pay damages which may extend to four times the annual rental value at the rates applicable to statutory tenants under Section 59.
6. Now in the present case defendant 1 can claim to be in possession with the consent of the land-holder inasmuch as the lease was granted not only by the mortgagor of the property in dispute but by his cosharers. In these circumstances whilst we indicate oar inclination to follow the decision in Aziz Fatma v. Makund Lal (1932) ALJ 572 we do not consider it necessary to decide the general principle which has been raised by learned Counsel for the appellant. We consider that in the circumstances the plaintiff was entitled to have recourse to the civil Courts for a declaration that the property which he purchased was not burdened with a lease, inasmuch as this lease was executed during the pendency of a suit in which the property leased was directly and specifically in issue. In the result we dismiss the appeal No. 114 of 1933. We have indicated our view that the plaintiff must have recourse to the revenue Court for possession of the property in suit and for mesne profits, and in these circumstances we dismiss First Appeal No. 115 of 1933. In the circumstances the parties will bear their own costs in both the appeals.