1. This appeal raises the vexed question of jurisdiction, viz., whether the civil Court or the revenue Court should take cognizance of this case. The plaintiff, who is the zamindar of the, entire village, brought the suit but of which this appeal has arisen in the Court of the Munsif of Etawah on the allegations that one Ram Din Brahman was the occupancy tenant of certain lands specified in the plaint, that he died without any issue and without having made any adoption, that defendants 2 and 3 set up defendant 1, son of defendant 2, falsely as the adopted son of Ram Din with the idea that the occupancy holding should go to those defendants and that as a matter of fact there was no such adoption. The plaintiff accordingly asked for a declaration that Ram Din died without having made an adoption and that the alleged adoption was a mere fiction. The defence was several and among these, one was that the suit was not cognizable by the civil Court, as defendant 1 was a tenant of the plaintiff. The first Court dismissed the suit on the merits holding however that the suit was cognizable by the civil Court. The plaintiff went in appeal, but the respondents contended in the appellate Court that the Munsif was wrong in taking cognizance of the suit. This argument found favour with the learned appellate Judge, and he by his decree dismissed the suit holding that it was not cognizable by the civil Court. We might point out here that if the learned Subordinate Judge was of opinion that the suit was not cognizable by the civil Court, the proper order to make was to return the plaint to the plaintiff for presentation to the proper Court and not to dismiss his suit.
2. The plaintiff has come in second appeal and his contention is that the learned Judge of the lower appellate Court was wrong in holding that the suit was not cognizable by the civil Court. The learned Subordinate Judge has cited the case of Jagannath v. Balwant Singh A.I.R. 1922 All. 372 and Section 122, Act 3 of 1926, as authorities for his opinion. When the suit was filed Act 3 of 1926 had not yet been placed on the statute book and it cannot therefore be said that the plaintiff was bound to follow the procedure laid down in Section 122 of that Act. Whether the suit was cognizable by the civil Court or not must be judged by the provisions of the N. W. P. Tenancy Act of 1901.
3. As regards the case quoted, it has no application whatsoever. In that case the plaintiff admitted that 'the defendant was his tenant, but all that he disputed was the class of tenancy. His contention was that the defendant was only a non-occupancy tenant and not an occupancy tenant as the defendant claimed to be. That case therefore does not govern the present case.
4. Coming to the provisions of the Act of 1901 we find that there is only one section which deals with a declaration as to the nature of tenancy and it is Section 95. It begins by saying, ' At any time during the continuance of a tenancy,' and goes on to provide that under those circumstances a landholder or a tenant may sue for obtaining certain declarations. The first thing that is required for the application of the section is that the tenancy should be in continuance. In this case the landholder asserts that the tenancy has come to an end on the death of Ram Din, and there being no successor, it has lapsed to him, the sole zamindar. In the circumstances it was not open to the landholder to go to the revenue Court and to ask for a declaration under Section 95 of the Act. There being no other provision, under which the plaintiff could go to the revenue Court, he was obliged to come to the civil Court, the only other Court available. We hold therefore that the plaint was cognizable by the civil Court.
5. There is one point and it is this. The defendant pleaded that he was a tenant of the plaintiff. The sole question that was raised by the suit whether the defendant by virtue of his alleged adoption became or not a tenant of the plaintiff in place of Ram Din. Section 202, Tenancy Act of 1901 and Section 273 of the Act of 1926 provide the procedure as to such cases. They both lay down that where a suit is instituted in a civil Court in respect of agricultural holding and that the defendant pleads that he is a tenant of the plaintiff, the prescribed rules are to be followed. Under Section 202 the procedure is that the civil Court would direct the defendant to institute in the revenue Court a suit within three months of the order to obtain a declaration as to his (defendant's) status as a tenant. Section 273 of the Act of 1926 directs that the Court shall frame an issue on the question of tenancy and shall remit that issue to the revenue Court for determination. The learned Munsif had the case before him before the Act of 1926 came into operation and should have followed the provisions of Section 202 when he came to frame issues. Now that we have to direct him to follow the proper procedure, and we have to follow the provisions of Section 273 of the Act of 1926, because it is a rule of procedure alone. It has been held in this Court on numerous occasions that after the Act of 1926 came into force, Section 273 should be applied and not Section 202 of the old Act.
6. Following this procedure therefore we set aside the decree of the Court below and also the decree of the Court of first instance and remand the suit to the Court of the Munsif. We direct him to follow the procedure laid down in Section 273 of Act 3 of 1926, to frame an issue as to the tenancy of the defendant and to send it to the revenue Court for determination. In subsequent proceedings he will follow the rule laid down in the same section. Costs here and hitherto will abide the result.