1. This is an appeal by the plaintiffs who object to the procedure adopted by the trial Court in sending the record to the Revenue Court for a finding under Section 273, Agra Tenancy Act, Local Act 3 of 1926. The facts are that the plaintiffs brought a suit for a declaration that a certain plot was owned by them and that the defendants had no concern with it who who might be ordered to remove certain trees and constructions on the same. The defendants alleged that their house stood on a portion of the land in question for a very long time and in another portion nim, jack-fruit, kela, babul trees, bamboo clumps and rubbish heaps stood and in a portion of the land vegetables, etc., were grown. They stated that the plaintiffs' plea, that on the land in question the house of one Ganesh Ahir stood and the said Ganesh Ahir had planted certain jackfruit trees and bamboo clumps with the permission of the zamindar but the defendants recently without theconsent of the zamindar took possession of the land and made certain, other constructions was incorrect; on the contrary the defendants had been in possession of the said land for a number of years on payment of rent. No plea was taken that the suit related to an agricultural tenancy and the defendants were the tenants thereof;, it was not said that the record should, be sent to the Revenue Court for the decision of the issue as to whether the defendants held land as the tenant of the plaintiff. One of the defendants was examined under Order 10, Rule 10, Civil P.C., and therein also he said, that the land was taken for the purpose of tethering cattle, building; houses, planting trees and growing: vegetables. He said that he had planted an orchard, that on a portion of the land cowdung cakes were prepared and on a certain portion vegetables and chillies were grown. He ended by saying that the land had not been taken for agricultural purposes and no grain had been sown on the same.
2. The Court of first instance was irk some doubt as to whether Section 273, Tenancy Act, applied or not and it therefore on 2nd May 1931 passed an order to the effect that:
the pleader for the defendants should show by Monday whether he pleaded tenancy or not and whether any issue regarding it be sent to the revenue Court or not because the written statement is not quite clear on this point.
3. The defendants on 4th May 1931 stated that a portion of the disputed plot was sown with vegetables and on a portion there was a bela (a place for tethering cattle) of the defendants, and on a portion there were trees and bamboo clumps. It was said that the defendants were the tenants of the plaintiff and Section 273 was applicable. It seems that in the Court below proper' attention was not paid to the fact that before Section 273 could be applicable the. suit must relate to an agricultural holding, and it was thought that in order to make that provision applicable all that is necessary was that the defendants should plead that they were tenants of the plaintiffs. In this the trial Court was wrong. The position that was taken by the defendants was that they were tenants but they admitted that the land was not taken for agricultural purposes. Under these circumstances even if I were not to look at the report of the Commissioner appointed by the Revenue Court, which goes to show that no vegetable cultivation was goint on on the plot, it is not possible to hold that the dispute related to agricultural holdings. That being so, the entire procedure adopted by the trial Court was irregular. I have not gone into the other evidence in the case but I do not agree with the lower appellate Court that:
the plot of land is an agricultural land in view of the admissions made by the defendants.
4. It is however contended by Mr. Upadhia on behalf of the respondents that the Courts below on the evidence have found that the defendants are the tenants, of the plaintiff qua this plot on payment of rent which has been paid by them regularly for a number of years and the plaintiffs' suit for ejectment and for declaration would not therefore succeed. That may be so, but I must set right the procedure adopted by the trial Court. The record should not have been sent to the Revenue Court, but on the pleadings of the parties the civil Court should have proceeded to determine the controversy between them. It may be that the civil Court might still come to the conclusion that the plaintiffs are not entitled to any relief because of the fact that they had let out the land to the defendants for the purposes mentioned by them, and the defendants have in no way acted in contravention of the on poses for which the land was let out to them.
5. For the reasons given above, I allow this appeal, set aside the decrees of the Courts below and remand the case through the lower appellate Court to the Court of first instance for disposal on the merits. As I have decided only a preliminary point, the remind should be deemed to be under Order 41, Rule 23, Civil P.C., and he appellants will be entitled to a return of court-fees. Costs here and heretofore will abide the event. I sic to file an appeal by way of Letters Patent is granted.