1. The plaintiff Musammat Sheokali sued a large number of zemindars, for a declaration that she was the tenant of a particular holding. The grounds of her claim were that her father was occupancy tenant, after whom her mother, his widow remained a tenant until 1328 Fasil when on her death the plaintiff took possession. It was further stated that the defendants had admitted her tenancy and allowed her to remain in possession. The trial Court of the Assistant Collector declared under Section 25 of the Tenancy Act of 1901 that the plaintiff was a non-occupancy tenant of the land in suit on behalf of the, defendant zemindar. She was not an heir under Section 22 of the Tenancy Act but some of the defendants favoured her and acknowledged her as tenant so the trial Court came to the conclusion that she was a tenant on behalf of the defendants. The defendant Gauri Rai who owns 13 annas out of a one rupee share in the zemindari of the village appealed to the Commissioner. In the written statement he had raised the plea that he took possession of the land in dispute on the death of the plaintiff's mother as zemindar. For this reason the Commissioner was of opinion that a question of proprietary title was raised in the trial Court.
2. The second ground of appeal to the Commissioner was that from the evidence on the record it had been proved that the land in suit was the khudkasht of the appellant Gauri Rai. This was the reason why the Commissioner came to the conclusion that a question of proprietary title was a matter in issue in the appeal also. He returned the petition of appeal which was thereupon filed in the Court of the District Judge. The District Judge decided that the woman did take possession of the land in suit on the death of her mother, but that the possession was unlawful and not that of a tenant; so he refused to grant her the declaration which she had sought. Curiously enough the District Judge failed to decide the point whether at the time of the institution of the suit the plaintiff was in possession or the defendant Gauri Rai. It seems hardly likely that the plaintiff could have been in possession because if she had been, there would have been no cause for her to seek the assistance of the Court. It is obvious that she was out of possession and the frame of the suit under Section 95 was the cleverness of some revenue agent to aviod the real tussle as to actual physical possession. A woman does not put herself to expense for the honour and glory of a declaration of which she has little understanding.
3. The decree of the lower Appellate Court is attacked here on two grounds:
(1) That he had no jurisdiction which really lay with the Revenue Court of Appeal.
(2) That he had wrongly applied the provisions of Section 194 of the Tenancy Act.
4. That the Civil Court had jurisdiction is most abundantly supported by a Full Bench ruling of this Court in Bindeshwari v. Gokul 22 Ind. Cas. 964 : 36 A. 183 : 12 A.L.J. 251. That judgment set at rest the previous conflict of authority in this Court. As was stated in that judgment whatever the legal quibbles may be, the importance of the case was to have a settled practice. The settled practice now is that even where both parties do not claim proprietary title over a plot of land and are not at issue as to who is the proprietor, the plaintiff or the defendant, the Civil Court jurisdiction will arise as soon as the defendant claimed to be in possession of the land as proprietor, i.e., as khudkasht holder. In the present case Gauri Rai has been proclaiming in every Court his claim of actual possession as khudkasht holder of the land in suit. Dr. Waliullah was of opinion that as the trial Court paid no attention to this defence the Civil Court jurisdiction did not arise. For one thing the first issue of the trial Court is truncated. Put down in full it ought to be not only 'Is Musammat Sheokali in possession of the land' but further 'Is the defendant Gauri Rai in possession of the land as khudkasht holder'? Apart from this the test of Civil Court jurisdiction is that the question of proprietary title should be in issue in the Court of first instance and should be a matter in issue in the appeal. It is not stated in Section 177(e) of the Tenancy Act of 1901 that the question of proprietary title should be attended to and decided by the trial Court before the Civil Court could have jurisdiction. The first plea in appeal must, therefore, fail.
5. Put shortly the argument of the District Judge is this. The defendant without any right as heir under Section 22 of the Tenancy Act took possession of the land in suit with the consent of only some zemindars and not of all. Some zemindars were not entitled to grant permission on behalf of all so the plaintiff was a trespasser and not a tenant. The argument is quite sound though personally I would be prepared to hold that the plaintiff was not in possession and that the possession was with the defendant as khudkasht holder. It often happens that petty proprietors are jealous of khudkasht cultivation by a proprietor holding a large share in the village because the small proprietors find in such a case considerable difficulty in recovering their share of profits. The smaller proprietors would prefer land to be cultivated by a tenant with a fixed and known rent of which they can claim a share. In the present case the petty proprietors have backed up the plaintiff to prevent Gauri Rai becoming sir holder of the land.
6. The argument of the District Judge even as it stands is not open to objection. Under the provisions of Section 194 of the old Tenancy Act every act should be done for the co-sharers jointly unless any local custom or special contract to the contrary is proved. Here there was no allegation of any special contract or local custom. It has been specifically held by the lower Appellate Court that the plaintiff did not take possession with it the consent of the defendants co-sharer, of a large portion of the zemindari, so the plaintiff cannot be considered to have been put into possession as a tenant.
7. The appeal fails and I dismiss it with costs.