1. The facts out of which this appeal arises are shortly as follows:--- Lalji was an occupancy tenant of a holding in the village of Khajuri, of which the plaintiffs-respondents are the Zamindars.
2. Lalji died recently, and on his death the defendants appellants applied for mutation of their names in the place of Lalji, as being entitled to succeed to his occupancy holding. While there proceedings were pending, this suit was brought in the Court of the Munsif for a declaration that the defendants were not the grandsons of Lalji. The pleadings will be examined in detail later on. One defence to the unit was that it was not cognizable by the Civil Court.
3. The Munsif held Hat he had jurisdiction, as the prayer was for a declaration only, and on the merits, decreed the suit.
4. The defendants appealed and again objected to the jurisdiction of the Civil Court to entertain the suit. The District Judge up held this contention, and dismissed the suit. The plaintiffs appealed to this Court, and a learned Judge of this Court allowed the appeal and sent the case back to the District Judge to try the appeal before him on the merits.
5. From that order, the defendants have brought this appeal under the Letters Patent.
6. After hearing full argument, we think the appeal must be allowed and the suit dismissed on the ground that it was not cognizable by the Civil Court.
7. This appeal raises the question of the conflict of jurisdiction between the Civil and the Revenue Courts in a particularly convenient form.
8. Section 167 of the Agra Tenancy Ant provides that all suits...of the nature specified is the Fourth Schedule shall be heard and determined by the Revenue Courts and, except in the way of appeal as provided in the Act: 'No Court other than a Revenue Court shall take cognizance of any dispute or matter in respect of which any such suit . . . might be brought.'
9. In Ram Charitar Rai v. jiani 2 Ind. Cas. 859 : 36 A. 48: 11 A. L. J. 1022. (to which decision one member of this Court was a party) it was laid down that while it is necessary to guard against formulating any such general rule as that, a suit for a declaration of legal status cannot be entertained by a Civil Court merely because such a suit may be brought in consequence of a dispute which originally arose between landlord and tenant, nevertheless an examination of the plaint in the light of the surrounding circumstances nay show that the suit in fact offends against the provisions of Section 167. It was there pointed cut that a plaint might be so drafted in which a mere declaration as to the existence of a valid marriage, or as here, of a valid adoption, might have been Fought in respect of which it could scarcely have been held that the jurisdiction of the Civil Court was custed.
10. The ratio deci(sic) of that case was that in ell such cases we must determine what was the real contest between the parties and what was the real object, of the suit. And for this purpose we must examine the plaint with care. Two similar cases are Dori Lal v. Sardar Singh 5 A. L. J. 514 : A. W. N. (1908) 240. and Sri Mahant Bramha Bi-ham Ehushal v. (sic)umera 18 Ind. Cas. 957 : 35 A. 299 : 11 A. L. J. 810
11. The plaint opens with the statement that Lalji was an occupancy tenant of the plaintiff who art the Zamindars of the village He did 'without leaving any ion or other legal heirs' one and a half months before the Suit, Thereupon, the defendants, who are described as the grandsons of Lalji's sister, made an application in the Revenue Courts en the 3rd January 1918 for the entry of their names as: occupancy tenants in the place of the deceased Lalji. They asserted that Lalji ex cited a deed of adoption on 11th February 1(sic)05 stating that he had adopted Gobind as his son and that the defendants are the sons of Govind, who is also dead.
12. The plaint goes' on to say that Lalji also made two Wills in defendants' favour but the both are 'legally null and void' and that tie defendant Lava rot acquired occupancy rights.
13. With regard to the adoption, it is stated that Lalji was a Gaur Brahman by caste, and thus could not legally adopt his sister's son. Other objections were taken to the adoption culminating in the assertion that, as a matter of fact, it never took place. G3vini died four years before suit in the lifetime of Lalji.
14. Then comes a very significant statement which really contains the kernel of the ease for the plaintiffs;--Paragraph 7. 'The defendants are the grandsons are the sister of Lalji deceased. Their father, Govind, was rot adopted by Lalji and their possession even, the occupancy holding of Lalji it simply that of non-occupancy tenants from year to year'
15. The cause of action is paid to have (sic)crused on the 3rd January 1918 the date of defendants' application far mutation of name and in the beginning of February 1918 when the defendants refused to with-draw that application, This act is stated to be 'prejudicial to the plaintiffs' rights' and hence the suit.
16. The only relief sought if, 'that it may be declared that Govind was not the adopted son of Lalji, and that the defendants are not the are not the grandsons of Lalji.'
17. Now the plaintiffs admit that they are the landlords and that the defendants are in possession as their tenants, but only as on occupancy tenants from year to year and it seems fairly obvious from the plaint itself that the object of the suit is to fret a declaration that will prevent the defendants from establishing their claim to succeed to Lalji's occupancy holding.
18. When we turn to the written statement, the matter is placed beyond all doubt.
19. The defendants say, in effect, that Lalji who had no son did adopt Govind, and that by a special custom of the brotherhood, the adoption of a sister's son was valid. That over since the adoption which took place before 1905, (when the deed of adoption was executed), Lalji brought up Govind, got him married, and that Govind and his sons, the defendants, have all along been sharing in the cultivation of the occupancy holding and living, with Lalji. After the death, Govind, Lalji executed the two Will in defendants' favour merely as a. precaution, and the plaintiffs have brought this suit to deprive 4hera of their occupancy holding. Lastly, it is pleaded that the dispute can only be decided by the Revenue Courts, and the claim for a declaration cannot1 be maintained, and the suit is not cognizable by the Civil Court.
20. Taking the pleadings together, it is admitted that the relationship of landlord and tenant subsists between the parties and that the tenancy is still existing. The only dispute is as to the nature of that tenancy. Is it an occupancy tenancy, as the defendants claim, or a non-occupancy tenancy from year to year, as the plaintiffs assert?
21. The answer depends, according to the parties, on whether Lalji's alleged adoption is proved and is valid in law.
22. We must now turn to sea whether any one of the mitts specified in the Fourth Schedule to the Agra Tenancy Act might be brought in respect of the dispute between the parties; because if there is an appropriate suit provided in the Revenue Court, then the cognizance of the Civil Courts is ousted.
23. It seems to us that a suit by either party would lie under Section 95 (a) and (b). A suit under this section is included in group C, item No. 34 in the Fourth Schedule and, therefore, the object of the present suit is either to forestall a suit under Section 95 at the instance of the defendants for a declaration that they are occupancy tenants of the holding, or to strengthen the hands of the plaintiffs in the event of it being necessary for them to bring a similar suit for a declaration that the defendants are non-occupancy tenants, or else to enable the plaintiffs to bring a suit for ejectment under Section 58 on the ground that the defendants are non-occupancy tenants. The opinion being of this nature, we are of opinion that it is not cognizable by the Civil Court.
24. It was, however, argued by the learned Advocate for the plaintiffs, that the question of jurisdiction was purely academic and that whether the original Court had or had not jurisdiction, once the matter went on appeal to the District Judge, he and this Court have jurisdiction to decide it, having regard to the provisions of sections 196 and 197 of the Act, This view seems to have commended itself to the learned Judge of this Court, In his judgment he says:
25. It is clear that no Revenue Court baa jurisdiction to pronounce a final decision upon a question of status or adoption, It the decision of the lower Appellate Court is maintained and the plaintiffs are referred to a suit under Section 95 of the Tenancy Act, in the Revenue Courts, the question of adoption will necessarily come up for disposal. It is only on the basis of an adoption that the defendants in any circumstances could be held to be entitled to occupancy right in this holding.
I am unable, therefore, to see why in the present owe, this suit should not be entertained and disposed of by a Civil Court, which admittedly is the only Court which can some to a final decision upon the question of adoption, and although the purpose of the plaintiffs may be eventually to obtain a decision from the Revenue Court that the defendants are merely tenants-at-will and not occupancy tenants, I fail to tee why, having asked the Civil Court for a relief which the Civil Court alone is competent to give, the Civil Court should deal me jurisdiction.
26. The learned Judge's decision seems largely to le based on the assumption that the Civil Court alone could decide the question of adoption. In this view we are unable to agree.
27. We have, however, to consider whether Sections 196 and 197 can apply. Section 197 only applies, if under Section 196 the appeal lies to the District Judge or High Court.
28. In our opinion the appropriate suit for the plaintiffs to have brought was for a declaration under Section 95 of the Tenancy Act. Turning to group C of the Fourth Schedule, we find such a suit (item No. 34) is tribal by an Assistant Collector of the First Class, and the appeal lies to the Revenue Court and not to the District Judge or High Court.
29. Section 197, therefore, has no application The result is we allow the appeal, set aside the order of remand made by this Court, and restore that of the District Judge dismissing the suit.
30. The appellants will be entitled to their costs throughout, which in this Court, both before the Single Judge and here, will include free on the higher stale.