1. This is an appeal by the plaintiff, Makund Swarup, arising out of a suit brought by him for recovery of possession over a three-fourth share of mortgagee rights in the entire 20 biswas of village Ekka Tajpur alias Sikhra and a three-fourth share of mortgagee rights in the entire 20 biswas of mauza Rasulpur. The plaintiff further claimed to recover a sum of Rs. 2,500 principal and Rupees 933-6-0 interest on account of profits for the year 1332 Fasli and a sum of Rs. 4,000 principal and Rs. 1,133-6-0 interest on account of damages for the year 1333 Fasli. There was also a prayer for the recovery of Rs. 3,750 principal and Rs. 387-9-0 interest as mesne profits for the year 1334 Fasli and Kharif 1335 Fasli. The plaintM impleaded as defendants to the suit Thakur Karan Singh, Deep Chand and Tejpal Singh; minor sons of Somraj Singh and Raghubir Singh.
2. The admitted facts which led to the institution of the suit may be stated. On 30th November 1904 a usufructuary mortgage was executed by Fazal Shah, Haidar Shah and Wazir Begum in favour of Makund Swarup and Ghafoor Bakhsh for Rs. 50,000, mortgaging four villages : (1) Landdoki Hasanpur, (2) Chashi, (3) Ekka Tajpur alias Sikhra and (4) Rasulpur. It was stated in the mortgage deed that Makund Swarup had advanced Rs. 30,000 and Ghafoor Bakhsh Rs. 20,000 and the former was a mortgagee of three-fifth share and the latter of a two-fifth share. This document was registered on 17th December 1904. On 24th January 1908 Ghafoor Bakhsh sold his mortgagee rights to Makund Swarup with the result that Makund Swarup became the sole mortgagee of the four villages mentioned above. On 18th August 1909 Makund Swarup executed a theka in favour of Girwar Singh and Tulsi Ram of three villages, Landdoki Hasanpur, Ekka Tajpur alias Sikhra and Rasulpur for 15 years from 1317 Fasli to 1331 Fasli, corresponding to the period from 1st July 1909 to 30th June 1924. This document is printed at p. 23 of our record. The thekadars were given the right to enter into possession over the leased property for a term of 15 years and they were required to pay a sum of Rs. 4,300 every year to Makund Swarup.
3. They had also to pay the annual Government revenue of Rs. 3,171. It may be mentioned that Girwar Singh and Tulshi Ram Singh, the two lessees, are first cousins, being the sons of two brothers. On 18th September 1920 Makund Swarup sold two-fifth of his mortgagee rights in all the four villages to Kishun Chand, Somraj and Raghubir. Kishun Chand was entitled under the sale deed to half of two-fifth and Somraj and Raghubir to the remaining half of two-fifth. Makund Swarup thus retained in himself three-fifth of the mortgagee rights. In the year 1922 Tulshi Ram, one of the thekadars died leaving behind him three sons, Karan Singh, Shib Singh and Naubat Singh, who 'became entitled to the lessee rights of Tulshi Ram. The position in 1922 after the death of Tulshi Ram therefore was that Makund Swarup had three-fifth mortgagee rights and Kishun Chand, Somraj and Raghubir had two-fifth mortgagee rights in the above mentioned four villages and Girwar Singh, Karan Singh, Shib Singh and Naubat Singh had lessee rights over three villages. It may be stated here that the village Chashi was not included in the lease and it remained in the possession of Makund Swarup and even when on 18th September 1920 Makund Swarup sold two-fifth of the mortgagee rights to Kishun Chand, Somraj and Raghubir, he did not deliver possession to the vendees of even a proportionate share in village Chashi.
4. The term of the theka expired on 30th June 1924 and on 5th July 1924 Makund Swarup applied for the expungement of the names of the thekadars. On 10th July 1924 Makund Swarup through his general attorney, Bankey Behari Lal, wrote to Girwar Singh that an application for getting the leased property released from the theka had been made in the competent Court and on account of trie death of Tulshi Ram the theka had been legally dissolved. It was enquired of Girwar Singh whether he was willing to retain the theka in future or whether he wanted to sever his connection. Girwar Singh the same day wrote back that the theka was for a period from 1317 Fasli to 1331 Fasli, the term whereof had expired and the theka had dissolved. He definitely stated that he did not want to act as a thekadar any longer. On 29th. July 1924 Karan Singh filed objections in reply to the application of Makund Swarup for the expungement, of the names of thekadars in which on various grounds he pleaded that, Makund Swarup was not entitled to mutation. It does not appear from the record that Shib Singh and Naubat Singh made any objections to the mutation application of Makund Swarup.
5. Before this mutation application could be decided, Karan Singh died on 16th August 1924, leaving behind him as his heirs his five sons Manik Singh, Kishun Chand Singh, Meghraj Singh, Balmakund Singh and Amar Singh. On 21st October 1924 an agreement was drawn up between Makund Swarup on the one hand, the owner of three-fifth mortgagee rights in the four villages, as first party, and Kishun Chand, Somraj and Raghubir, owners of two-fifth mortgagee rights in the four villages, as second party. This agreement stated that:
the term of the theka had expired and after the expiry of the term of the theka the heirs and thekadars had no longer any right and the mortgagees were now entitled to get possession of the mortgaged property and applications for mutations of names and lambardarship had been filed by the parties.
6. It was provided that:
in order to facilitate the management of the possession of the mortgagee rights it was necessary to settle as to which of the parties would take possession of when part of the mortgaged property in lieu of the 3/5th and 2/5th mortgagee rights and make collections.
7. It was stated that Kishun Chand Singh was one of the heirs of the thekadar Karan Singh who, thekadar lambardar was in possession or the villages comprised in the theka by making collections and as many matters relating to the arrears, were still incomplete, it was necessary for Kishun Chand to settle the account relating to arrears within the year 1332 Fasli. The second party, namely, Kishun Chand Singh, Somraj and Raghubir, were stated to be liable for the profits for 1332 Fasli which profits after the adjustment of accounts of profits in respect, of the mortgaged village, namely, Chashi which was in possession of Makund Swarup were fixed at the sum of Rs. 2,500 and this sum was promised to be paid half on 15th December 1924 and half on 15th June 1925. It was then said that, from 1333 Fasli the second party in lieu of two-fifth mortgagee rights in four villages would enter into possession of the entire village, Landdoki Hasanpuir and the first party, namely, Makund Swarup, would enter, in lieu of three-fifth mortgagee rights in the four villages, into sole possession of three villages Chashi, Ekka Tajpur alias Sikhra and Rasulpur; and if the second party failed to deliver possession in the beginning of 1333 Fasli over the villages which under the agreement had been, given to first party, then the second party would be liable for payment of Rs. 4,000 by way of damages to the first party. It was also agreed that each of the parties should make applications on their behalf and get all the suits relating to mutation of names and lambardarship pending in the Revenue Court, struck off. On 5th February 1925 Makund Swarup's mukhtar-e-am made a statement in the mutation case that the application of Makund Swarup dated 5th July 1924 for the expungement of the names of the thekadars be struck off and the Revenue Court, directed the application be struck off and shelved. It does not appear if any fresh applications for mutation were made by either party on the basis of the agreement of 21st October 1924 and the names of Girwar Singh who, as we stated before, had disclaimed all connection with the theka, Shiib Singh and Naubat Singh who had made no objections to the mutation application of Makund Swarup and the five sons of Karan Singh continued as thekadars in the revenue records. Of these 5 sons, Kishun Chand Singh in the agreement referred to above had definitely stated that the theka had expired and the thekadars had no longer any right and another son, Manik Singh who is a vakil and who according to the evidence of Bankey Behari in this case had prepared the draft of the agreement was an attesting witness to the document which is printed at p. 39 of our record.
8. It is clear from what we have stated before that village Chashi remained all along in the mortgagee possession of Makund Swarup but possession over Ekka Tajpur and Rasulpur was not given to Makund Swarup as stipulated in the agreement in the beginning of 1333 Fasli and the present suit was instituted on 28th April 1928 when the whole of 1334 Fasli and Kharik of 1335 Fasli had run out for the reliefs which we have already mentioned in the beginning of our judgment and as Somraj, one of the members of the second party was dead, his two sons along with the other members of the second party were impleaded as defendants. The defence of the two sons of Somraj and of Raghubir was that they never got mortgagee possession over two-fifth of the property ever since the sale deed of 18th September 1920 and the agreement dated 21st October 1924 was improperly and illegally obtained on account of the simplicity and inexperience of Somraj and Raghubir which had no binding effect. Various defences were raised by Kishun Chand Singh but the principal pleas were that the thekadars had not been ejected according to law and the civil Court had no jurisdiction to entertain the present suit. On 11th January 1929 after the issues had been framed, he moved the Court that there ought to be a clear issue on the plea taken by him that he was a tenant of the plaintiff and that under Section 273, Tenancy Act, (Local Act 3 of 1926) the issue on tenancy should be submitted to the appropriate Revenue Court for decision. On 19th January 1929 the Court acceded to this request and after framing another issue, namely, whether the relationship of landlord and tenant existed between the parties or not, sent the record to the Revenue Court for determination of that issue. The Revenue Court on the 17th August 1929 held that Kishun Chand was still a thekadar and therefore a tenant, of the plaintiff. It appears that on 5th February 1930 after the decision of the Revenue Court was obtained, and upon representations made by the plaintiff, the learned Subordinate Judge re-called his previous order dated 19th January 1929, submitting the record to the Revenue Court. There was an appeal to the High Court against, this order and it was held by this Court on 29th July 1930 that it was too late for the trial Court to go back upon his previous order after the Revenue Court had gone into the matter and recorded its finding in favour of one party. The appeal was therefore allowed and the order dated 6th February 1930 was set aside. The learned Subordinate Judge then took up the case on 15th November 1930 and as under Section 273, Clause (3) he was bound to accept the finding of the Revenue Court on the issue referred to it, he held that the relation of landlord and tenant existed between the parties and upon that finding he also came to the conclusion that he had no jurisdiction to try the case. He therefore did not discuss the other issues and instead of returning the plaint for presentation to the proper Court (which was perhaps the most proper order) dismissed the plaintiff's suit. It may, thus be taken that the learned Subordinate Judge decided two issues in the case and refrained from deciding the others.
9. The plaintiff has therefore filed the present appeal and the first point taken by him is that. Section 273, Agra Tenancy Act, had no application to the facts of the case because the lease in dispute was not one relating to an agricultural holding. We may mention that this Court on 29th July 1930 held that it was not necessary for it to decide this point and that if the trial Court had wrongly referred the issue to the Revenue Court, the mistake could be rectified on appeal and not by the trial Court reviewing its former order. We therefore propose to decide this preliminary objection of the plaintiff-appellant. If is said that a tenant according to the definition of the term in the Tenancy Act under Section 3, Clause 6 includes a grove-holder but does not include a thekadar and if the only contention of the defendant was that he was a thekadar from the plaintiff, there was no plea that the relationship of landlord and tenant existed between the parties. But even if it be conceded that a thekadar is not a tenant under Section 273, all that the civil Court has to see is whether the defendant pleads that he holds the land as a tenant of the plaintiff and as the defendant had so pleaded, the civil Court was bound to submit, the record to the Revenue Court and not to go into the question whether a thekadar is strictly a tenant or not. It is then said that, a lease like the present one docs not relate to an agricultural holding. Now 'holding' has been defined in Section 3, Clause (8), Tenancy Act, and means:
a parcel or parcels of lands held under one tenure or one lease, engagement or grant and includes the interest of a thekadar.
10. Under Section 219, Clause (2) a theka shall be deemed to be a lease for agricultural purposes within the meaning of Section 117, T.P. Act, 1882. It is therefore clear that, the lease in question in the present, suit, does relate to an agricultural holding. It. was conceded by the parties that the Tenancy Act of 1926 will regulate the procedure to be followed in the present case. It is therefore clear that, the rulings that were given under the Tenancy Act of 1901 are no longer good law. A similar view was taken by a Trench of this Court in Mt. Ram Siri v. Iqbal Bahadur 1933 All. 456 where the terms 'thekadar' and 'agricultural holding' were considered. There is therefore no force in the preliminary contention advanced by the appellant.
11. Under Section 273, Clause (4) the finding of the Revenue Court on the issue referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the civil Court, and we have got to decide whether the finding that the relationship of landlord and tenant or the relationship of landlord and thekadar existed between the parties is a correct one or not. We have further got to see whether the suit was rightly instituted in the civil Court or not. We propose to discuss the first question in the beginning, The suit is between Makund Swarup on the one hand and Kishun Chand, Deep Chand, Tejpal, Singh and Raghubir Singh on the other. Deep Chand and Tejpal Singh are the sons of Somrai Singh and neither Somraj Singh nor Raghubir Singh were ever the lessees of Makund Swarup. The only question is whether Kishun Chand can be said to be a lessee of Makund Swarup. He claims his right through. Karan Singh who was a son of Tulshi Ram, a lessee under the document of lease dated 18th August 1909. The term of the lease expired on, 30th June 1924 and on 21st October 1924 Kishun Chand stated in the agreement of that date that the thekadars and the heirs of the thekadars had no longer any right and the term off the theka had expired. No language, can be more definite, more unambiguous and more unequivocal than that used by Kishun Chand in the agreement of the question, of the termination of the theka and it does not lie in his mouth to say that he is a thekadar of the plaintiff. The plaintiff acting on the representation. of Kishun Chand got his mutation application struck off and allowed Kishun, Chand Singh, the second party to the agreement of 1924 to remain in possession of certain villages for the year 1332 Fasli after the expiry of the term of the lease. The plaintiff's position was altered to his prejudice and we are clearly of the opinion that Kishun Chand Singh is estopped from pleading that he is a thekadar or tenant, of the plaintiff. It is then said that although under the terms of the lease the theka expired in 1331 Fasli (30th June 1924), the thekadar was allowed to remain in possession in 1332 Fasli under the agreement of 1924 and therefore they were holding over. Under Section 218, Tenancy Act, if a thekadar remains in, possession after the expiry of his theka and the lesson accepts rent from, him or otherwise assents to his continuing in possession, the theka is in contrary renewed from year to year. The argument therefore is that if in the absence of an agreement, to the 1333 Fasli, according to the agreement, Kishun Chand Singh did not hand over possession over the villages mentioned in the plaint, the plaintiff in order to terminate the theka which under the provisions of Section 218 must be deemed. to continue has to bring a suit for ejectment in the Revenue Court under Section 205, Clause (d), or Clause (e) and reliance is placed on Section 204 which says that no thekadar shall be ejected, otherwise than in accordance with the provisions of this Act. The Board of Revenue had consistently held that a person holding over after the expiry of a lease for a fixed term could not be said to be a trespasser and the tenancy continues unless it is terminated by ejectment, abandonment or relinquishment: see Mahir Zia Begum v. Jaski (1929) 10 L.R.A. Rev. 243 and Nath Chandrawat Trust v. Lallan (1929) 10 L.R.A. Rev. 301. It is conceded that if a tenant or a thekadar gives up possession and puts the landlord in possession, it would not be necessary for the landlord to file a suit for ejectment; but it is strenuously contended that a mere declaration that the tenant would give up possession is not enough and if in contravention of the declaration, the tenant or the thekadar continues to remain on the land, the landlord cannot treat the tenant as a trespasser and file a suit for ejectment in the civil Court. It is said that in the present case under the terms of the agreement the theka was extended for the year 1332 Fasli, and there was no statement by Kishun Chand Singh after the expiry of 1332 Fasli that this fresh theka had expired. The statement in the agreement about the expiry of the theka related to the original theka of 1909 and if Kishun Chand Singh in spite of the promise to hand over possession of 1333 Fasli did not deliver possession, the position of Kishun Chand Singh under Section 218 was that of a thekadar from year to year. There is no proof in the present case that the plaintiff has accepted any rent from Kishun Chand Singh or has otherwise assented to Kishun Chand Singh's continuing in possession after 1332 Fasli as a the-kadar and even if we were to accept the view of the Board of Revenue that in a proper case of holding over the tenancy continues and can be terminated only by a suit for ejectment in the Revenue Court, we are of the opinion that the position of Kishun Chand Singh in 1332 Fasli was not that of a thekadar. He soon after the expiry of the term of the original lease, made a definite statement to the effect that his rights as a thekadar no longer subsisted and the arrangement under which Kishun Chand Singh, Somraj Singh and Raghubir Singh were to remain in possession during the year 1332 Fasli was a different arrangement altogether. It was clearly stated by the second party:
We are liable for 1332 Fasli only and after the adjustment of account of profits in respect of the mortgaged village, viz., Chashi which is in the possession of the first party, the amount thereof comes to Rs. 2500, and it is due to the first party and we shall pay one-half of it in Kharif on 15th of December and the other half in Rabi on 15th June.
12. This makes it clear that according to the agreement the lessees were not to remain in possession but the second party was to remain in possession. The amount fixed under the lease was Rs, 4,300 a year but according to this agreement the amount was fixed at Rs. 2,500; under the lease the lessees were liable to pay the annual sum reserved but under the agreement the second party were to pay the sum fixed by the agreement. The village Chashi was not included in the lease and the lessees had nothing to do with the profits of that village. But under the agreement the profits of that village were also taken into consideration. Two-fifth of the mortgagee rights in village Chashi were sold to the second party in 1920 and the second party were entitled to its profits from that date up till the date of the agreement but as Makund Swarup remained in possession, the profits of that village for four years were set off. We are clearly of the opinion that in the year 1332 Fasli the second party and not the lessees were to remain in possession under a different set of circumstances absolutely dissimilar to the terms of the lease. Learned Counsel for the respondent has referred us to a statement made by Bankey Behari on 5th February 1925 (this would be in the year 1332 Fasli) where he says that at that time the heir of Karan Singh and the lessees were in possession of all the three villages. This was a loose statement made by the general attorney of the plaintiff or it may be that the second party allowed the lessees or the heirs of the lessees or the heirs of Karan Singh to remain in possession for facility of realizing the arrears of 1331 Fasli. We know that this statement cannot be taken at its face value when Girwar Singh, one of the lessees definitely stated on 10th July 1924 that he did not want to act as a thekadar and when he again in his evidence in this case on 30th July 1929 stated on oath that:
after the expiry of the period of the theka he was no more a thekadar nor were the heirs of Tulshi Ram thekadars any more.
13. If we were to consider the case of Kishun Chand Singh alone, apart from other members of the second party, namely, Somraj and Raghubir, the position is that he gave up possession under the lease of 1909 on the expiry of the period fixed therein and then Makund Swarup allowed him to continue in possession under a different title. There was thus an evacuation by Kishun Singh, a restoration of possession by surrender to his landlord - the plaintiff - and a subsequent letting in of Kishun Chand Singh by Makund Swarup under a different arrangement and the breach of the terms contained in the different arrangement enables the plaintiff to get relief in the civil Court.
14. It was said that at best in. 1924 Kishun Chand Singh should be deemed to have surrendered his thekadari rights and as the Tenancy Act of 1901 was in force in 1924, we must look to the provisions of relating to surrender contained in that Act and in order that the surrender should be effectual, the elaborate provisions contained in Section 83 et seq of Local Act 2 of 1901 should have been followed. These provisions relate to a tenant not bound by a lease or other agreement for a fixed period and Kishun Chand Singh held the land under a lease for a fixed period and even if these provisions be deemed to be applicable, they do not suggest that it is not possible for a landlord or a tenant to come together and agree by means of a registered document to a different state of affairs. Reliance in this connection was placed by learned counsel for the respondents and by the Revenue Court on the case of Selected Decision of the Board of Rev. U.P. No. 9 of 1913. The learned members of the Board of Revenue held that an agreement to surrender without actual evacuation is invalid and that for the determination of a tenancy the essentials are a notice or agreement to surrender and the actual fulfilment of the agreement. In the case before them there was no abandonment at all. The deed of surrender was executed in July and the promise was to surrender on 1st July folio wing; but the tenants ploughed and sowed in that month and showed no disposition to fulfil their agreement. In the case before us the facts aire different. The defendant, Kishun Chand Singh; said that the theka had determined and gave up all rights under the same. He then along with certain persons other than the original lessees entered into possession in a different capacity in the year 1332. It is worthy of note that the learned members of the Board of Revenue in the case before them held that the landholders might possibly bring a suit for specific performance of the agreement or for damages for breach of contract in the civil Court and this is exactly what Makund Swarup has done in the present case.
15. We are therefore of the opinion that the relationship of landlord and thekadar does not subsist between the plaintiff and the defendants and that it was not necessary for the plaintiff to have instituted a suit in the Revenue Court for the ejectment of Kishun Chand Singh.
16. We now proceed to consider the question whether the present suit should have been filed in the civil Court or in the Revenue Court and in this connection it was also argued by the respondent that the plaintiff obtained no cause of action to maintain the present suit. So far as defendants 2 to 4 are concerned, it is clear that no relief could be obtained against them in the Revenue Court nor could any relief be obtained against Kishun Chand Singh upon the basis of the agreement which is the main plank of the plaintiff's case, in the Revenue Court. It is true that a plaintiff cannot oust the jurisdiction of a Revenue Court by dressing up his reliefs so as to make them cognizable by the civil Court but this is not one of those cases where the plaintiff has presented his plaint in a different garb or where the plaintiff could, obtain adequate relief in the Revenue Court. Mortgagee possession over villages, Ekka, Tajpur and Rasulpur, could not be obtained in the Revenue Court. The sum of Rs. 2,500 plus interest could not be recovered in the Revenue Court for 1332 Fasli because this figure was not settled under the lease. The sum of Rs. 4,000 plus interest as damages fixed by agreement also could not be decreed by the Revenue Court, nor could the sum of Rs. 3,750 plus interest be awarded as mesne profits toy the Revenue Court. The lease comprised three villages and in the present case one of them Landdoki Hasanpur has been kept scrupulously out of consideration.
17. It is then said that Kishun Chand Singh is a lambardar of the villages Ekka Tajpur and Rasulpur and the plaintiff cannot in the civil Court turn Kishun Chand Singh out from the office of lambardar. It appears that Kishun Chand Singh has purchased a proprietary share in the villages. The khewat printed at p. 76 of our record shows that mortgagee light exists over only a three-fourth share in the two villages and that a one-fourth share is free from the mortgage and that is why relief in the present suit is confined to a three-fourth share only and these are the only mortgagee rights that are now subsisting under the mortgage executed by Fazal Shah and others in 1904. It is common ground that Kishun Chand Singh became a lambardar because of Ms proprietary interest in the two villages and not because of his being a lessee. In para. 10 of the written statement he states that:
the contesting defendant by virtue of making purchase is the exclusive partner of the mahals leased out and on the basis of such partnership has continued to make collections as Lambardar.
18. It is not necessary for the plaintiff to remove Kishun Chand Singh from lambardarship. Under Section 265(1) the lambardar in an undivided mahal is entitled, in the absence of a contract to the contrary, to collect rents and other dues. It is thus clear that a contract amongst co-sharers for the collection of rents is permissible. All that the plaintiff seeks by relief (a) in the present suit is that on the enforcement of the agreement of 1924 the plaintiff should be allowed to collect rents to the extent of three-fourth in villages Ekka Tajpur alias Sikhra and Rasulpur and this in effect is the possession which he claims. It is not necessary for Kishun Chand Singh to be removed from the office of lambardar for he may still continue to collect the rent of the remaining one-fourth share and if later on the plaintiff encounters any difficulties, he might be advised to apply for the removal of Kishun Chand Singh.
19. Finally it was argued that the plaintiff has no cause of action to maintain the present suit. It is said that the plaintiff has not sued for profits, has not applied for mutation of names under the agreement, nor has he applied for being appointed as a lambar-bardar, and the argument is that if the plaintiff had done any of the above things, the defendant, Kishun Chanel Singh, might have been objected. It was however not necessary for the plaintiff to adopt these measures before coming to Court. In para. 7 of his plaint, the plaintiff discloses his cause of action which is that in contravention of the terms of the agreement, the defendants and the ancestor of defendants 2 and 3 remained in possession of the properties situate in Ekka Tajpur and Rasulpur and by their improper acts deprived the plaintiff from gaining benefits therefrom. It was also said that the defendants undertook to pay Rs. 2,500 for 1332 Fasli and Rs. 4,000 for 1333 Fasli, neither of which sums was paid by the defendants. An application for being appointed as a lambardar and the granting of such an application could not have afforded adequate relief to the plaintiff and in order to obtain relief against defendants 2 to 4 at least under the terms of the agreement, plaintiff had necessarily to institute the present suit. Moreover the plea that the plaintiff has no cause of action for the suit was not taken in the trial Court.
20. We wish to make it clear that we have assumed so far that the deed of agreement dated 21st October 1924 is enforcible; we have not attempted to decide the question of its validity which is in issue between the parties on the plea taken by defendant 2 to 4 and when the case goes back to the trial Court, that Court will have to adjudicate on that point. The Court below dismissed the plaintiff's suit on certain preliminary points and our decision is confined to those preliminary points alone. It was the plaintiff's case that when the agreement of 21st October 1924 was executed, all those who could be said to have any interest in the lease repudiated their connection and consented to the agreement. It is pointed out that Girwar Singh on 10th July 1924 wrote to Makund Swarup saying that he did not want to remain a thekadar, that Shib Singh and Naubat Singh never objected to the application of Makund Swamp for mutation that Manik Singh prepared the draft and was an attesting witness, that the other three sons of Karan Singh must be deemed to be represented by the elder brothers, Kishun Chand Singh and Manik Singh. Bankey Behari, a witness for the plaintiff, has deposed in the present case that all the above persons were consenting parties to the agreement of 1924 and it is said on the plaintiff's behalf that the entry of their names in the khewat is a paper entry. We do not wish to arrive at any finding on this point in the absence of Shib Singh, Naubat Singh, Meghraj Singh, Balmakund Singh and Amar Singh. Whatever our suspicions in that direction might be, it is impossible to adjudicate upon the rights of persons who are not, parties to the suit. All that we decide is that Kishun Chand Singh is definitely estopped from pleading any rights as thekadar and our judgment governs only him, the plaintiff, and the other defendants.
21. As a result, of what we have said above, this appeal is allowed, the decree of the Court below is set aside and as the decision of that Court proceeded upon preliminary points, we remand the case to that Court under Order 41, Rule 23, Civil P.C. for the disposal of other issues that arise in the case. Parties will be at liberty to produce fresh evidence. The plaintiff is entitled to a refund of the court-fee paid in this Court and to his costs of this appeal. Costs in the Court below incurred so far and to be incurred hereafter will abide the event.