Cecil Henry Walsh, Actg., C.J.
1. This is one of those really difficult cases where this constant conflict between the jurisdiction of the Revenue Court and the jurisdiction of the Civil Court indirectly arises. I say indirectly arises, because no objection way taken to the jurisdiction of the Revenue Court, and until this case reached the High Court, and my brother Stuart allowed the learned Vakil to argue a point which was not open to him, the difficulty was never present in the case at all. It is hoped that the approaching legislation about the Tenancy Act, or the new Act, if we ever get one, will finally get rid of this perennial difficulty. The facts of the case are quite simple as appears from my brother Stuart's judgment. It is true that a perpetual lease having been granted by a Hindu widow with a Hindu widow's estate, such questions as legal necessity, and determining her right to grant it, so as to make it operative after her death, are involved. The plaintiff sued in ejectment under Section 57 of the Tenancy Act, alleging or assuming--it matters not which--that the plots were agricultural land. No point was raised either of fact or law on this point, namely, as to the nature of the land and the character of the tenancy, either in the pleadings or in the issues framed by the Assistant Collector, and both the lower Courts decreed ejectment, the Second Court slightly modifying the First Court's judgment. When the matter came before this Court in second appeal, a new point of law was taken, which the learned Judge has accepted. It was said that the suit was premature, and that the plaintiff reversioner, if he wanted to recover on the revenue side in ejectment, must first get the lease, or alienation which the widow had made, formally set aside, or declared to be void in a Civil Court. The learned Judge accepted this view. He has not said on what authority he based him self. It is a view inconsistent with the weight of authority, at any rate of this Court. If there were only one Court possessed of jurisdiction, so that two such suits would have to be brought in that Court, there is no question that the view is erroneous. The Privy Council have made that perfectly clear in the case of Bijoy Gopal Mukerji v. Krishna Mahishi Debi 34 C. 329 at p. 333 : 11 C.W.N. 424 : 5 C.L.J. 334 : 9 Bom. L.R. 602 : 2 M.L.T. 133 : 17 M.L.J. 154 : 4 A.L.J. 329 : 34 I.A. 602 (P. C) where they laid down generally that the institution of a suit for possession is sufficient to show the plaintiff's election to treat the alienation as a nullity, and that, therefore, a separate suit is unnecessary, and even a separate suit for a declaration is inoperative. Putting it into plain English, the mere bringing of a suit for ejectment challenges the right of the defendant to be in possession, and as Mr. Justice Piggott pointed out in the next case which is a clear authority for this case, and which really was binding on Mr. Justice Stuart, if his attention had been drawn to it 'the defendant is forced to set up in justification of his possession the lease under which he sits, and then it is that the plaintiff can say that such lease was invalid and not binding upon him'. The passage in the judgment which I have just quoted occurs at page 260 in the case of Sher Khan v. Debi Prasad 28 Ind. Cas. 552 : 37 A. 254 : 13 A.L.J. 364 and is a sufficient authority for this case, and if it had been cited to the learned Judge, I have no doubt that he would have followed it.
2. I agree. The plaintiff instituted a suit in the Revenue Court for the ejectment of the defendants, treating them as non-occupancy tenants. It was alleged that they had planted trees on the land, and also made some constructions, and were, therefore, liable to ejectment under Section 57, Sub-clause (b) of the Agra Tenancy Act. The plaintiff treated the land as agricultural land, and sought relief in the Revenue Court. Defendant No. 1 set up a perpetual lease executed by the deceased widow of the last male owner, to whom he said he had succeeded as a reversioner. Defendant No. 2 claimed to be a transferee from defendant No. 1. In neither of the written statements filed in the Court below was the point specifically raised that the land in question was not agricultural land at all. Nor was any plea raised that the Revenue Court had no jurisdiction to entertain the suit. Only four issues were framed by the Trial Court, and none of these issues referred to the two points above mentioned. The Court of first instance decreed the claim. The defendants went up in appeal to the lower Appellate Court, and in their grounds of appeal they did not raise either of the two points mentioned. The decree of the First Court was affirmed with a slight modification. A second appeal was filed in this Court, and although it was not suggested in the grounds of appeal that the land really was not agricultural land, or that the lease was not for agricultural purposes, a plea was at the time of the admission of the appeal added to the effect that the lease not having been set aside by a competent Court in a proper suit brought by a person entitled to question it, it was binding on the zamindar for the time being. The learned Judge of this Court has allowed the appeal, and has come to the conclusion, to quote his own words: 'that it was necessary for the plaintiff-respondent to set aside the alienation which the lady had made in favour of Gopal as a precedent to instituting a suit for the ejectment of the defendants appellants through the Revenue Court'. He has, however, assumed that the plots in question are agricultural land.
3. It was laid down by their Lordships of the Privy Council in the case of Bijoy Gopal Mukerji v. Krishna Mahishi Debi 34 C. 329 at p. 333 : 11 C.W.N. 424 : 5 C.L.J. 334 : 9 Bom. L.R. 602 : 2 M.L.T. 133 : 17 M.L.J. 154 : 4 A.L.J. 329 : 34 I.A. 602 (P.C.) 'that a Hindu widow is not a tenant for life, but is owner of her husband's property subject to certain restrictions on alienation, and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property'. It is quite clear, therefore, that it is not incumbent on a reversioner to obtain a declaratory decree to set aside the lease executed by the deceased widow before seeking his substantial relief. If the land were either let or held for agricultural purposes, the Revenue Court alone could order the ejectment of the defendants. A Hindu widow can certainly grant a lease to tenants or lessees, and such tenants or lessees can be ejected through the Revenue Court alone. The plaintiff reversioner, therefore, could only go to the Revenue Court for ejectment, and the defendants were entitled to set up the lease as a lease binding upon her, if they set up its validity, it would be for the Revenue Court to decide whether it had or had not been executed for legal necessity. The question of legal necessity was never raised in the Courts below, and has not been decided in favour of the defendants.
4. The view of the learned Judge that the plaintiff ought to go to the Civil Court in the first instance to obtain a declaration and then sue in the Revenue Court for ejectment, is contrary to the opinion expressed by Chamier and Piggott, JJ., in the case of Sher Khan v. Debi Prasad 28 Ind. Cas. 552 : 37 A. 254 : 13 A.L.J. 364 following an earlier case in the same volume at page 41.
5. I am, therefore, of opinion that it was not necessary for the plaintiff to obtain a declaratory decree from a Civil Court before instituting a suit for ejectment in the Revenue Court.
6. The learned Vakil for the respondents has tried to support the decree of the learned Judge of this Court, by urging that as a matter of fact the lease in question is not one for agricultural purposes. As I have already stated this point was never raised at the trial, and has been assumed in favour of the plaintiff all along. It may be that according to the terms of the lease, it is not a lease solely for agricultural purposes. All the same it may well be that the land has been held for agricultural purposes. This new point, therefore, cannot be allowed to be raised at this stage.
7. We, therefore, allow the appeal and restore the order of the District Judge, but under the circumstances, having regard to the fact that the present appellant ought never to have allowed this point to be taken without, objection, and that he failed to, cite the authorities bearing upon the point, we deprive him of all costs in this Court. That is to say, he will only get the costs in the First Court and in the District Judge's Court.