1. This appeal arises out of suit brought by the plaintiffs to recover a number of plots of land which are specified in the plaint The suit was instituted in the Revenue Court under the provisions of Section 58 of the tenancy Act, the allegation of the plaintiffs being that the defendants were heir non-occupancy tenants and were liable to ejectment under the provisions of that section. The defendants pleaded that they were proprietors and also that if they were not proprietors they were ex-proprietary tenants and as such not liable to ejectment. The Court of first instance granted a decree in respect of some of the plots and dismissed the suit in respect of other plots. The plaintiffs preferred an appeal to the Commissioner and the defendants filed cross-objections. The appeal if it could be properly presented to the Commissioner was within time but if the appeal was not cognisable by the Revenue Court it was late for an appeal to the District Judge. The Revenue Court returned the appeal for presentation in the proper Court. An affidavit was filed explaining that the presentation of the appeal to the Commissioner was due to bad legal advice. Without a very definite finding as to whether there was sufficient ground to admit the appeal after limitation, the appeal was admitted by the District Judge It was heard by the Civil Court and without objection by either party and the defendant was not only successful in having the suit dismissed but his cross-objections were allowed. The plaintiffs come here in second appeal. The respondents raised a preliminary objection that there was no proper decision on the question of the admitting of the appeal after limitation and it is contended that the respondents ought not only to prevent the appeal being heard but they should also get the benefit of the decree of the Court below which allowed their cross-objections. We must treat the Court below as having admitted the appeal under Section 5 of the Limitation Act. We think that we are amply justified in this having regard to the fact that no objection wag taken to the hearing of the appeal by the Civil Court. We therefore overrule the preliminary objection.
3. It appears that the plots in dispute form a portion of the shares of three vendors Adya Prasad Amka Prased and Musammat Karanjia. These persons sold 1/4th of their respective shares on the 20th May 1901 by a registered sale-deed. Sometimes subsequent to that they executed a deed of relinquishmert relinquishing their ex-proprietary right in favour of the vendees. Therefore the vendees have acquired (provided the transaction was a legal transaction) not only the proprietary right but also the ex-proprietary right created by the Tenancy Act and this necessarily carried with it the right to possession over the plots in dispute. The lower Appellate Court seems to have considered that when the contract of sale was entered into it was even then intended that the ex-proprietary right should be included in the sale and he considered that such a transaction would be void in so far as it was an agreement to transfer the ex-proprietary tenancy created by the Tenancy Act. The learned Judge has given his reasons for so holding. We are disposed to agree that if a contract of sale was entered into which included an agreement to transfer by surrender the ex-proprietary rights as soon as they were created such a contract would be unenforceable in law. If however after a sale-deed has been executed of the proprietary right and if after the occupancy tenancy has come into existence, the ex-proprietary tenants choose to execute a deed of relinquishment in favour of their landlord, there seems nothing in law to prevent them from doing so even though it was all along intended that they should do so. Section 83 of the Tenancy Act expressly empowers a tenant to surrender to his landlord and sub-section 3 expressly makes legal any arrangement about surrender made between landlord and tenant. It has been held in the case of Lekhraj v. Parshadi 2 Ind. Cas. 409 : 6 A.L.J. 713 that a surrender of ex-proprietary right to' the landlord is valid. A question may sometimes arise as to whether a surrender is really made to the landlord. It does not necessarily follow that the person who purchases the ex-proprietary right always becomes the landlord of the ex-proprietary tenant. The Court of first instance found that the plaintiffs had been in actual possession of some of the plots and some of the plots had been actually surrendered to the vendees. The lower Appellate Court says the plaintiffs obtained physical possession of the whole and remained in possession for some years. The meaning of this is that after this deed of relinquishment the plaintiffs got possession. We cannot believe that the learned Judge intended this as a finding of fact in respect of all the land in dispute for it was unnecessary for him to decide the question if his view of the law was correct viz. that the surrender and relinquishment under the circumstances of the case (as he understood it) was illegal. We cannot forget that the present suit was a suit instituted in the Revenue Court on the allegation that the relations of landlord and tenant existed between the plaintiffs on one side and the defendants on the other in respect of all the plots in dispute. It therefore lay on the plaintiffs to prove such a tenancy. We think that if the plaintiffs succeeded in showing that after the relinquishment they got into actual possession of all the plots and that the defendants got back into possession of the plots with their consent a tenancy might reasonably be inferred. If some of the plots were actually surrendered and if the plaintiffs were unable to prove any sort of agreement as to how the defendants should hold them we hardly think that the Court would be justified in finding that a tenancy existed. Before finally deciding the appeal it is necessary to have a clear finding by the Court below on the following issue.
4. Were the respondents or their predecessor in-title tenants of the plaintiffs and if so, of which of the plots in dispute
5. Having regard to the circumstances of the present case we think that it is not necessary for the Court to go into any matter as to whether or not the tenancy was created between any persons other than the plaintiffs on the one side and the defendant on the other. The issue will be decided upon the evidence already on the record. On return of the finding the usual ten days will be allowed for filing objections.