1. The dispute in this appeal relates to a plot No 96/2 khasra situated in the pillage Kuli Kalan. The plaintiff, MUSammat Nurangi Kunwar, claims to be the occupancy tenant of the said plot in succession to her husband, Brindaban. The land is at present in the actual cultivation of the defendant, Harbaran Lal. The plaintiff filed a suit for the ejectment, of the defendant in the Revenue Court alleging that the latter was her sub-tenant. The defendant denied that he was a sub tenant of the plaintiff. The Revenue Court evidently accepted his defense and dismissed the suit.
2. The plaintiff then filed the present suit for possession of the said land with mesne profits, alleging that the defendant had wrongfully denied the title of the plaintiff in the Revenue Court. The defendant re-asserted that he *as holding possession of the land in his own right and that the plaintiff had no right to it and had not been in possession of it within 12 years previous to this suit. His story was that the land in question was lying fallow behind his house and that about 10 or 12 years prior to the suit he brought it under cultivation at his own expense and has been in possession since. Several Zemindars, however, gave evidence on behalf of the plaintiff and supported her claim to the tenancy of the disputed land. In the revenue papers her husband, Brindaban, who was formerly the Patwari of the village, was recorded as the occupancy tenant of that plot, holding it rent free. The Court of first instance distrusted that evidence and ramp to the conclusion that the plaintiff, or her husband, had no real title to the said lard and that the plaintiff had not been in possession of it as a tenant in-chef at any time within 12 years prior to the suit. It accordingly dismissed the claim On appeal, the lower Appellate Court f end that the husband of the plaintiff was the tenant in chief of the disputed plot and after the death of her husband the plaint ff got into possession and that the defendants held possession of the same as a sub tenant of the plaintiff from the year 1314P. It decreed the claim accordingly for possession and mesne profits.
3. The learned Counsel for the defendant-appellant contends that, on the findings arrived at by the lower Appellate Court, no suit for ejectment, was entertainble in the Civil Court. He relies on the decision in Ram Sukh v. Gokul Chand 21 A. 113 A.W.N. (1898) 213 : 9 Ind. Dec. 800 and in Bechu Sahu v. Nand Ram Dos 4 Ind. Cas. 700 2 A.L.J. 900. In both these cases it has been held that an agricultural lease can be determined only by the lessor taking proceedings under the Tenancy Act, and the reason which the land holder may have for desiring to eject the tenant has nothing to do with the procedure to be adopted for his ejectment. It is no questionable that a trespasser ran he elected through the Civil Court, but the mere denial by a sub-tenant of his tenancy does not make him a trespasser. If the person whom the plaintiff describes as a sub tenant sets himself up as a tenant-in-chief it is open to either of them to seek in the Civil Court a declaration that he is the tenant in chief of that land. In Narain Singh v. Gobind Ram 9 Ind. Cas. 1022 : 8 A.L.J. 431 : 33 A. 523 It was held that the Civil Court has no jurisdiction to eject, as a trespasser a person whom the plaintiff, an occupancy tenant, described as his sub-tenant but who, be asserted, bad lost his right by reason of his having set up in a previous proceeding the title of a chief tenant and obtained a decision to that effects from the Revenue Court. As pointed out in Bhup v. Ram Lal 11 Ind. Cas. 268 : 8 A.L.J. 1003 : 33 A. 795, a Civil Court is the proper Court to try all disputes between rival claimants to a tenancy. But a person found to be a subtenant cannot be ejected by it. The defendant here denies the sub-tenancy alleged by the plaintiff and practically sets up that he is himself the tenant-in-chief. He does not claim proprietary right against the Zemindar who is not even a party to the suit. The plaintiff can obtain a declaration against him that she is the tenant-in-chief of the disputed plot and not the defendant. She cannot, however, eject him through the Civil Court if he is her sub-tenant as the lower Appellate Court finds him to be The case is somewhat complicated by the fact that the Revenue Court is stated to have already found in the ejectment proceeding that the defendant was not a sub tenant of the plaintiff, but, even if he is not a sub tenant, the plaintiff, as a tenant-in-chief, can still claim such rent from him as may be found equitable under Section 34 of the Agra Tenancy Act (II of 1901). The plaintiff is, therefore, not without remedy. The decree for possession and damages cannot, in any case, stand. Though no objection as to the jurisdiction was raised by the defendant in this suit, the finding of the lower Appellate Court brings that question prominently up and in view of the ruling of their Lordships of the Privy Council in Minakshi Naidu v. Subramanya Sastri 1 M. 26 at p. 35 : 4 Ind. Dec. (N.S.) 18 : 14 I.A. 160 : 5 Sar. P.C.J. 54 : 11 Ind. Jur. 393 (P.C.), the proper course seems to be to discharge that portion of the decree of the lower Appellate Court which grants the plaintiff proprietary possession and mesne profits over the property in dispute against the defendant who has been found to be her sub-tenant, and to grant instead a declaration that the plaintiff is entitled to hold the land in question as a tenant-in-chief. The appeal is allowed accordingly in so far that, in lieu of the decree granted by the Appellate Court, the plaintiff will be granted a declaration that she is entitled to hold the disputed land as a tenant-in-chief. The will get her costs here and heretofore from the defendant appellant who will bear his own costs throughout.