1. The facts essential to the disposal of this appeal may be stated as follows: Murat and Lakhan mortgaged with possession to the plaintiffs four plots of land held by them as tenants at fixed-rates. The plaintiffs entered into possession under their mortgage and presumably must have paid rent for the holding to the landholders. Both the mortgagors having died, the landholders claimed to enter into possession of the holding on the ground that the fixed-rate tenants had left no heirs entitled to succeed to the sane. The matters came before the Revenue Courts under those sections of the United Provinces Land Revenue Act (Local), Act III of 1901, which deal with the maintenance and correction of the annual registers. Their decision was in favour of the landholder and the latter succeeded in obtaining actual possession over the plots of land in question. In this suit, filed in the Court of the Munsif of Ballia, the plaintiffs sued the landholders as defendants of the first party, and one Dayal, whom they described as the successor by inheritance to the estate of the mortgagor Lakhan, as defendant of the second party. They claimed possession of the plots of land in suit as a fixed-rate tenancy, and, in the alternative, they asked for a simple money decree. Questions of limitation and jurisdiction were raised in both the Courts below and have been decided by them in favour of the plaintiffs. I have to consider, first of all, whether the Court of first instance, the Munsif of Bailia, was or was not debarred from taking cognizance of this suit by the provisions of Section 167/79, of the Agra Tenancy Act (Local), Act II of 1901. This question depends mainly on whether the 3 usufructuary mortgagee of a fixed-rate tenancy, in possession of the holding under terms of his mortgage and paying rent for the same to the landholder, is or is not a 'tenant' of that holding within the meaning of Section 79, aforesaid. I am clearly of opinion that he is. The definition of the word 'tenant' in Section 4 of the same Act is the 'person by whom the rent of the holding is payable.' A fixed-rate tenancy is transferable; and it seems to me that when possession of the same has been transferred to a usufructuary mortgagee, the said mortgagee is the person by whom the rent of the holding is payable and whom the land holder will be obliged to implead in a suit for arrears of rent. If this view is correct, then the plaintiffs in the present case are tenants who have been ejected by their land holders otherwise than in accordance with the provisions of the Tenancy Act. They could, therefore, have brought a suit against the landholders-defendants for recovery of the possession of the holding, and for compensation for wrongful dispossession, under Section 79 of the Tenancy Act. The Court of the Munsif of Ballia was, therefore, debarred by Section 167 of the same Act, from taking cognizance of this dispute as between the plaintiffs and the defendants of the first party, because it was a dispute in respect of which a suit might have been brought under Section 79. The District Judge, however, when the matter came before him in appeal, might have dealt with the case under Section 197 of the Agra Tenancy Act. In order to do this, he would have had to determine whether or not a suit by the plaintiffs for recovery of possession of this holding under Section 79 of the Tenancy Act was barred by limitation on the date on which the suit in the Munsif's Court was filed. I, therefore, call for finding on the following issue: How long before the institution of the present suit had the defendants, landholders, taken actual possession of the plots of land in dispute as against the plaintiffs
2. The learned District Judge is at liberty in the event of additional evidence being tendered by either party on this issue, either to record such evidence himself or to remand the case to the Court of first instance for recording the same, due regard being had to the provisions of Section 197 of the Agra Tenancy Act. On receipt of the finding, ten days will be allowed for, objections.