1. The facts out of which this appeal arises are these: Behari Singh was the occupancy tenant of a certain plot. He was succeeded as occupancy tenant by Jodha Singh. Jodha Singh alone was occupancy tenant of that plot. No one shared in his cultivation. He introduced Parbat Singh and Mohan Singh as his sub-tenants. Afterwards he left the village. A considerable number of years after he had left the: village, Parbat Singh, Khub Singh and Tikam Singh obtained the entry of their names as occupancy tenants, and in a suit under Section 95 of the Tenancy Act, secured a decree as against the Zemindar to the effect that they were occupancy tenants of the plots. Parbat Singh and Mohan Singh continued to cultivate the plot and paid the rent, according to their allegation, to the Zemindar. In, the suit out of which this appeal arises, Khub Singh, and Tikam Singh have sued to eject Parbat Singh and Mohan. Singh in the Revenue Court. Khub Singh and Tikam Singh asserted that they were the occupancy tenants of the plot and that Parbat Singh and Mohan Singh were their sub-tenants. The written statement which was filed by the defendants is as follows:
1. The plaintiffs are, not competent to bring the suit. The claim is liable to be struck off.
2. The relation of landlord and tenant does not exist between the parties.
3. The suit is not cognizable by a Revenue Court.
4. The defendants are occupancy tenants on behalf of the Zemindar.
2. The Assistant Collector decreed the suit. The District' Judge dismissed it. The plaintiffs appeal here. The first question that arises is whether the District Judge had jurisdiction to hear the appeal. No question of proprietary title was raised this being a dispute as to which side were tenants,--see the case of Niranjan v. Gajadhar 30 A. 133 : 5 A.L.J. 71 : A.W.N. (1908).
5. I have now to consider whether a question of jurisdiction has been decided within the meaning of Section 177(f). The leading case upon this subnet is Gokaran Singh v. Ganga Singh 52 Ind. Cas. 779 : 42 A. 91 : 17 A.L.J. 1072 : U.P.L.R. (A) 130 (F.B.). That is the decision of a Full Bench. There had previously been some difference of opinion in this Court as to the meaning of the words 'a question of jurisdiction has been decided.' As I understand the Full Bench decision, the criterion laid down was this. In order to make a question of jurisdiction which could be decided, there must be a plea that the suit as brought is not cognizable by a Revenue Court. In other words, there must be a plea that, assuming the allegations made in the plaint to be true, a Revenue Court has no jurisdiction to entertain the plaint, and unless there is such a plea, there is no question of jurisdiction which can be decided. It would not be sufficient for the defendants to say, 'I deny the allegations in the plaint. I put forward counter-allegations. On the counter-allegation which I put forward the suit is not cognizable by a Revenue Court.' The plea must consist of a challenge that the Revenue Court has no jurisdiction, even assuming that the allegations in the plaint are correct. I am not as clear as I should like to be as to the interpretation of the Full Bench decision, but reading the words of Banerji, J., at page 94, Pages of 42 A.--[Ed.] 'But, in my opinion, the view which was adopted by my brother Piggott in the case of Ewaz Singh v. Umrai Singh 49 Ind. Cas. 732 : 41 A. 270 : 17 A.L.J. 189 seems to be the right criterion in a case of this kind,'--a view which was accepted by Rafique, J.,--and the remarks of Piggott, J., at pages 96 Pages of 42 A.--[Ed.] and 97 Pages of 42 A.--[Ed.] commencing, 'I take these words to mean a plea,' and ending, 'or to grant the relief therein sought.' I propose to apply the criterion as I have stated it. Now applying that criterion, what is the meaning of the written statement? The plaint said that the plaintiffs were tenants-in-chief and that the defendants were subtenants. Obviously, if that were the case the plaintiffs could eject the defendants in a Revenue Court, The written statement said 'the defendants are themselves occupancy tenants; the suit is not cognizable by a Revenue Court.' It is true that they inverted these two pleas, but the point is clear. They said that there was no relationship of landlord and tenant and that they were themselves occupancy tenants. I read this as a plea that on these counter-allegations the suit was not cognizable by a Revenue Court. I do not understand the allegations possibly to mean that, assuming that the plaintiffs were tenants-in-chief and the defendants sub-tenants, the suit was not cognizable by a Revenue Court. Therefore, I would hold that there was no question of jurisdiction, within the meaning of Section 177 as interpreted by the Full Bench decision, on winch the Assistant Collector could decide. Such being the case, the appeal did not lie to the District Judge but to the Commissioner. I accordingly pass the following order. I set aside the decree of the learned District Judge and remand the case to that Court with directions to return the memorandum of appeal to the defendants-appellants for presentation to the proper Court having jurisdiction to entertain it. Costs here and hitherto will be costs in the cause.