1. This was a suit in which the plaintiff, who is the appellant now before us, claimed a declaration and further relief by way of a perpetual injunction against two defendants under somewhat peculiar circumstance's. Defendant No. 1 is admittedly the proprietor of a certain village. Defendant No. 2 is a tenant at fixed rates of certain plots of land in that village, liable to pay an annual tent to defendant No. 1. The plaintiff's case; is that, by reason of a certain document of the 5th of August 1896, described in the plaint as a perpetual lease, the right to realize the rent due from defendant No. 2 to defendant No. 1 was transferred to one Wajid Ali Khan, who subsequently under a sale-deed of 4th November 1911 assigned it to the plaintiff. It is clearly alleged that the plaintiff had actually exercised this right, namely, the right of realizing rent from defendant No. 2, up to the date of the institution of the suit; but the cause of action is founded upon certain transactions between the two defendants which, according to the plaintiff, have cast a cloud upon his title. As a matter of fact defendant No. 1 had sued defendant No. 2 in the Rent Court for arrears of rent on account of this fixed-rate holding. It is alleged that defendant No. 2 pleaded that he had actually and in good faith paid the rent claimed to the present plaintiff, that this plea was overruled by the Revenue Court and a decree passed in favour of defendant No. 1, In consequence of these proceeding the plaintiff alleges that defendant No. 2 'hesitates in paying rent to the plaintiff in future.' The suit has not been triad on the merits in either of the Courts below. It was resisted on a variety of pleas; but the only point on which it was dealt with by the learned Subordinate Judge in whose Court it was originally filed was the question whether the suit was cognizable by a Civil Court. It was obviously a suit for relief of a civil nature cognizable by the Subordinate Judge, unless his cognizance was barred by Statute. The contention is that his cognizance was so barred by the provisions of Section 167 of the Local Tenancy Act, No. II of 1901. The first part of that section merely lays down that all suits and applications of the nature specified in the Fourth Schedule shall be heard and determined by the Revenue Courts.' That provision does not touch the present case, as the plaint filed in the Court of the Subordinate Judge could not have been brought as a suit or application under any of the heads specified in the said schedule. This same Section 167 of Act II of 1901, however, provides further that, subject to certain exceptions, no Court other than a Revenue Court shall take cognizance of any dispute or matter in respect of which any such suit or application might be brought or made' under one of the heads specified in the Fourth Schedule already mentioned. The question then to be determined is, whether the cognizance of the learned Subordinate Judge was barred in the present case by these provisions. The answer to this depends upon a further question, namely, whether a suit or an application might have been brought by the present plaintiff against either or both of the defendants, under one or other of the heads specified in the said schedule, by which a complete and final adjudication of the matter in dispute between the plaintiff and defendant No. 1 could have been obtained. In the Court of first instance it was suggested that there were two sections under which this might have been done. Reference was made to item No. 30 in group (c) of the Fourth Schedule above referred to, according to which a suit may be brought for recovery of the possession of a holding by a tenant who has been wrongfully dispossessed by his landlord under such circumstances as to bring the matter within the operation of Section 79 of the Tenancy Act. The alternative suggestion was with reference to item No. 34 in group (c) of the said schedule, under which a right to sue for a declaration is given either to a land-holder or to a tenant under circumstances defined and limited by Section 95 of the Tenancy Act. Both these abjections found favour with the learned Subordinate Judge, who held in effect that the present plaintiff could have obtained a complete adjudication of this dispute by bringing a suit under either of the heads above referred to and consequently no Court other than a Revenue Court could take cognizance of this dispute. The suit having been dismissed on this ground, there was an appeal to the Court of the District Judge. The learned District Judge held that the provisions of Section 79 of the Tenancy Act and item No. 30 of group (c), Schedule IV of the said Act, had no application to the facts alleged in the plaint. As there has been something said in argument before us on this point, I think it advisable to remark that in my opinion the learned District Judge was obviously right. In the plaint as drafted the plaintiff does not attempt to assert that she has been dispossessed of anything. If it be found against her, when the merits of, the case are gone into, that she had been dispossessed of the right claimed prior to the institution of the suit, her suit will fail; but this will be by reason of Section 42 of the Specific Relief Act and not by reason of anything contained in the Local Tenancy Act. This consideration is altogether apart from the further question which remains to be considered arising out of the other part of the judgment of the learned District Judge who, although he differed from the First Court about the applicability of Section 79 of the Tenancy Act, agreed with it with regard to Section 95 and the connected item in the schedule. He has dealt with this matter very briefly. He merely says that the present suit 'in both its branches' seems to be clearly covered by Section 95 aforesaid What he means by both its branches is worth considering. The relief actually sought is a declaration that the plaintiff alone is entitled to collect certain rent from defendant No. 2 and an injunction to restrain defendant No. 1 from interfering with the alleged right of' the plaintiff. The learned District Judge means, I think, that the plaintiff could have brought two suits under Section 95 and item No. 34, group (C), of the Fourth Schedule to the Tenancy Act. Presumably he means that the plaintiff could have sued defendant No. 2, claiming to be the land-holder of defendant No. 2 within the meaning of the definition in Section 4 of the Tenancy Act, and have asked for a declaration that the tenant of the holding consisting of the two plots of land in suit was defendant No. 2, that the said tenant was a tenant at fixed rates and that the rent payable by her was so much yearly. In my opinion the bringing of such a suit by the plaintiff against defendant No. 2, under the circumstances set forth in the plaint, would have been an abuse of the provisions of Section 25 of the Tenancy Act. There was no dispute whatever as to the identity of the tenant of the holding, the class to which that tenant belonged, or the rent payable by that tenant, in so far as the rights of defendant No. 2 are concerned. A suit such as has been suggested could have been met by defendant No. 2 with the simple plea that she had no possible objection to such a decree being passed as it is suggested the plaintiff ought to have claimed, and no decree passed on a suit thus instituted would have settled the real dispute, whether this plaintiff or defendant No. 1 is entitled to receive the rent of the holding from defendant No. 2. If the provisions of Section 95 were allowed to be used in the manner suggested, the result would be that no possible dispute upon a question of proprietary title between two rival claimants of any estate, however large, but could be brought to trial upon a suit filed by one of them for a declaration that the name and description and class and rent of a particular tenant of a particular holding were in fact what they admittedly were within the knowledge of every one concerned.
2. The other branch of the plaintiff's claim, as the learned District Judge calls it, is her claim against defendant No. 1. Here the suggestion is, that the plaintiff ought to have sued for a declaration that she is herself a tenant of the holding consisting of the plots of land specified in the plaint, that the class to which she belongs is that of a perpetual lessee, and that her rent is Rs. 10 per annum. On a suit so filed it is suggested that the question whether the plaintiff possesses, as against defendant No. 1, any right under the alleged perpetual lease of 5th August. 1896 could have been brought to trial and finally determined by a Court of competent jurisdiction. I would repel this contention on the simple ground that, upon the terms of this so called perpetual lease, the plaintiff is not, and could not reasonably claim to be, the tenant of the holding, the tenant of which is defendant No. 2 and no one else. A mere assignment by a proprietor of his rights with regard to the collection of rent from this fixed-rate tenant may take the form of a contract of lease, and may even amount to creating in favour of the lessee the legal status of a tenant within the meaning of the definition contained in Local Act II of 1901. As I have had to point out on other occasions, it is possible under the definitions of Section 4. of the said Act for a person to be a tenant without being the tenant of a holding. The argument in favour of the respondent is that this document of 5th August 1896 is a lease of proprietary rights, using those words in a broad sense. According to the definition in Section 4 of the said Act the word thekadar includes a farmer or a lessee of proprietary rights, and the word tenant includes a thekadar. In this connection it is only fair to notice that there have been decisions in this Court laying down that the interest of a thekadar in any agricultural land included in his lease may amount to a 'holding' within the meaning of the definition of that word in Section 4 of the Tenancy Act. On this point I am content to refer to the case of Natha v, Mian Khan 2 Ind. Cas. 552: 6 A. L. J. 619. The question, however, remains whether it is not possible for a person to be a thekadar without being the tenant of a 'holding,' and I think it would be easy to show from the definition in question that this is perfectly possible. For instance, a person to whom a proprietor grants lease for the collection of grazing dues 'would be a thekadar and would be a tenant, without being the tenant of a 'holding.' What we have to consider is the terms of the particular contract described as a perpetual lease in the present case. It struck us at the very outset of the discussion that it seemed on the face of it an abuse of terms to speak of the plaintiff, on the facts stated by her in the plaint, claiming to be a tenant of defendant No. 1 and that the allegations in that plaint seemed rather to represent a dispute between two persons claiming to receive the rent payable by the actual tenant, namely, defendant No. 2. A dispute of this sort would, of course, ordinarily be cognizable by the Civil Courts: and even if the matter had been incidentally adjudicated upon in the course of a suit before the Revenue Court, a special right to refer the question of title to the determination of a Civil Court is given by Section 198, Clause (2), of the Tenancy Act. When, however, we were pressed in argument with the effect of the definition of the words thekadar and 'tenant' in Section 4 of Act II of 1901, so as to enforce the point that the relation set up in the plaint between the plaintiff and defendant No. 1 could not be treated as anything but that of tenant and landholder, within the meaning of the definitions of those words, it seemed a fair rejoinder to allow the defendants to contend, on the definitions of the words 'land' and 'holding' that even if the plaintiff does allege herself to be in any sense of the word a tenant, she does not call herself a tenant of the holding in suit. The terms of this so-called perpetual lease are certainly peculiar. It covers other land besides the agricultural land with which we are concerned in this suit. It recites that a certain tenant (more strictly speaking the mortgagee of a tenant) is in possession of the entire area, both agricultural and non-agricultural, specified in the lease and is paying to the lessor a sum of Rs. 80 per annum as a gross rent, including both the rent of the tenant holding and payments described as parjaut on account of uncultivated land occupied by houses. The document then proceeds to grant to the lessor a right to receive this rent Rs. 80 per annum in perpetuity in return for a certain consideration, this consisting of an initial payment of Rs. 200 and an annual payment of Rs. 10, This seems an extremely good bargain for the lessee; but the document itself goes on to explain that the lessor is not in possession of the rights which he purports to grant. There is a usufructuary mortgagee in actual possession, and this contract of lease, or whatever we are to call it, is to take effect only in the event of the redemption of the mortgage, or on some future transfer of the proprietary rights of the grantor. The plaintiff's case, of course, is that the contract' has now come into effect, and her claim is resisted on the merits, which have not yet been gone into. Confining myself entirely to the question decided by the Courts below, I am clearly of opinion that, whether or not the grantee under this document of August the 5th, 1896, may fairly be described as a lessee, and consequently as a thekadar, within the meaning of the definition in Act II of 1901, nevertheless the land in respect of which the grant is made does not become the holding of the grantee within the meaning of the definition contained in the same Act. If I am right in this opinion the ground is cut from under the basis of the decision pronounced by both the Courts below. I would, therefore, allow this appeal and setting aside the decrees of the Courts below, send back the case through the lower Appellate Court to the Court of first instance with directions to hear and dispose of it on the merits. Costs here and hitherto, including fees on the higher scale, will abide the event.
3. I entirely agree with what my brother has said and also with the order proposed. I only wish to make one or two practical suggestions which I trust may be of value to Courts of first instance when they are confronted with the extremely difficult problems from time to time raised by this legislation. In my opinion it is, as a general rule, better in all such cases, where there is a doubtful and difficult question of jurisdiction depending partly upon facts, that the facts should first be ascertained and determined if it is possible to do so. Of course some oases are so clear that they are hardly open to argument; for example a claim for a lakh of rupees in a Small Cause Court would necessarily be rejected sit the threshold. I wish to reiterate what a former Chief Justice of this Court said in 1896 in the case of Sheo Narain Rai v. Parmeshar Rai 18 A. 270 at p. 273 (F. B.): A. W. N. (1896) 59: 8 Ind. Dec. (N. S.) 886. This is one of that class of cases which exemplifies the mischief which arises when the jurisdiction of Courts created by the Legislature is not plainly and explicitly and sharply denned. That mischief is intensified when...there are two sets of Courts, the Courts of Revenue and the Civil Courts, each having in some matters exclusive jurisdiction, whilst as to other matters the question as to which of such Courts has exclusive jurisdiction depends, not upon plain and explicit language of the Legislature, but upon inferences to be drawn from a painstaking examination of a variety of sections in an Act and upon general principles of jurisprudence upon which it is assumed that the Legislature has acted.' As a matter of fact in this particular case our decision, which governs this case and no other, turns rather upon the terms of the particular transaction in question than upon the various difficult problems discussed in the argument, and it is not improbable that if the Courts below had gone into the matter as my brother has done in his judgment, they might have realised the difficulties. Not merely questions of jurisdiction but also questions as to the right of appeal and of the course to be taken in an Appellate Court often depend very largely upon the way in which the facts shape themselves in the first Court. It cannot be denied that in a great number of these cases the problems of interpretation of a variety of sections are fought most strenuously where it ultimately turns out that on one side or the other the merits are conspicuous by their absence. In this particular case the first Court went completely as far as we can see into the evidence, documentary and otherwise. No less than ten witnesses were called, and the plaintiff's witnesses were cross-examined at considerable length and their veracity was seriously challenged. When the facts are ascertained and determined in the first Court and ultimately a decision is passed upon a question of jurisdiction and the other questions are determined as well, the Appellate Court is fully equipped for deciding the case. I think this is one of those cases in which even if- the suit had been brought in the wrong Court and had been rightly determined in the first Court to have been brought in a Court which had no jurisdiction to decide it, the Appellate Court could still have decided it as though it had been brought in the right Court. In this particular case it seems to me that in any event the learned District Judge might have disposed of the case under Section 197 of the Tenancy Act. I have heard no reason in support of the view taken by the Court below that Section 197 did not apply, and obviously if it did, and, if the course suggested by that section had been taken, a complete finding in the first Court would have facilitated the decision of that Court. There is a further consideration which appeals to me as being one of considerable weight. It is quite true that there is no answer to the contention that the question of jurisdiction depends upon and must be decided upon the plaint, that is to say, upon the frame of the suit, the relief sought, and the substance of the questions raised by the plaintiff. But everybody knows that the Pleader in the initial stages may have instructions which do not give a very clear view of the real remedy open to his client, and an elucidation of the substantial case made by the plaintiff in the course of the evidence may lead to an amendment being applied for which removes the difficulty altogether. But there is another consideration which appeals to me as one of considerable weight. In my experience where a serious question of jurisdiction is raised and argued in the first Court, if the case is heard out and decided on all points, merits as well as the question of law, it not infrequently happens that both parties are satisfied with the result, and the question of jurisdiction becomes purely academic.
Br the Court.
4. Order of the Court, therefore, is that the appeal is allowed, the decrees of the Courts below are set aside, and the case is sent back through the lower Appellate Court to the Court of first instance with directions to hear and dispose of it on the merits. Costs here and hitherto including fees in this Court on the higher scale will abide the result.