1. This appeal arises tinder the following circumstances:
2. The respondents who are two in number, namely, Jagdish Narain Rai and Musammat Kesha Kunwar, brought a suit in the Civil Court against the appellant Hirdey Narain Rai for possession and mesne profits on the allegation that the parties were joint owners of the plots in suit and the share of the plaintiffs, namely, the present respondents, was two-thirds. The appellant pleaded that he was, apart from the question of the title being found in the parties, the sole tenant of the entire land in suit, and, therefore, he was not liable to be ejected, his possession being lawful. The respondents' case was that the lands were the khud-kasht of the parties and the entry of the appellant's name as a tenant in the village papers was a fictitious one. In accordance with the provisions of Section 202 of the Agra Tenancy Act, the learned Subordinate Judge referred the appellant to the Revenue Court. The suit out of which the present appeal has arisen was accordingly instituted by the appellant in the Revenue Court. The respondents pleaded there that the entry in favour of the appellant as a tenant was fictitious, and that, if there was a tenancy, both the parties were entitled to it.- They further took the plea that the Revenue Court had no jurisdiction to entertain the suit. The learned Assistant Collector held that he had jurisdiction, the case having been referred to him by the Subordinate Judge. He further held that the appellant was an occupancy tenant of the lands, holding under the entire body of proprietors.
3. The respondents being dissatisfied with the decree of the Assistant Collector lodged an appeal before the learned District Judge. There it was contended for the appellant that the appeal lay to the Commissioner and not to the District Judge. The learned District Judge held that he had jurisdiction to hear the appeal, and, accordingly, entertained the appeal, and in the result dismissed the suit of the appellant as instituted in the Revenue Court.
4. In this appeal only one point has been urged, namely the learned District Judge had no jurisdiction to entertain the appeal, and the entertainment of the appeal by the District Judge was entirely against the entire scheme on which Section 202 of the Tenancy Act has been based.
5. I think this contention of the learned Counsel for the appellant is sound. Before proceeding further I may point out the anomaly that would arise by the learned District Judge entertaining the appeal. The original suit before the learned Subordinate Judge is still pending, It will have to be decided (assuming that there was no appeal to this Court) according to the decision of the learned District Judge. Then there would be an appeal to the District Judge. Thus the learned District Judge would be hearing two appeals from different Courts on the same subject.
6. The learned Counsel for the respondents relied on Section 177(f) of the Tenancy Act and contended that an appeal did lie to the District Judge under the provision of law. But it was with the object of settling questions of jurisdiction that the provisions of Chapter XIV of the Tenancy Act were enacted, and there is no force in this contention.
7. If we assume, as we must assume for the present, that the learned Subordinate Judge was right in directing the appellant to obtain a declaration from the Revenue Court as to his status as a tenant, the only Court to which an appeal would lie, from the decision of the Revenue Court would be a superior Revenue Court, namely, the Court of the Commissioner. This is expressly laid down in Section 202 of the Tenancy Act itself. It says in Clause (2) that the Civil Court would dispose of the suit in accordance with the final decision of the Revenue Court of first instance or appeal as the case, may be. Clearly it was never contemplated that once a case has been properly referred to the Revenue Court an appeal from the Revenue. Court would come to the Civil Court.
8. If, however, it be the case that the learned Subordinate Judge was wrong in referring the appellant to the Revenue Court, the question can be raised again by way of appeal against the decree that will be passed by the learned Subordinate Judge in accordance with the decision of the Revenue Court. That remedy, if necessary, against a wrong decision of the Civil Court as to the applicability or otherwise of Section 202 of the Tenancy Act is still open.
9. In my opinion the learned District Judge was in error in assuming jurisdiction. I, accordingly, allow the appeal, set aside the decree of the Court below and direct the learned District Judge to return the memorandum of appeal (when the record is received in his Court) to the respondents for presentation to the proper Court. The respondents will at all events pay the costs of the appellant in the District Judge's Court and in this Court. Costs in this Court will include Counsel's fees on the higher scale.