JUDGMENT
Aikman, J.
1. This appeal arises out of a suit which was brought by the appellant to eject the defendant from certain plots of land as being a trespasser. The Court of First Instance decreed the plaintiff’s suit. The Lower Appellate Court reversed that decree and dismissed the suit upon the ground that it was not cognizable by the Civil Court. It appears that the plaintiff issued a notice to the defendant under Section 36 of the North-Western Provinces Rent Act, 1881, seeking to eject him from the land in suit. The defendant made an application to the Assistant Collector contesting his liability to be ejected. He contended in this application that he was not the plaintiff’s tenant, but was himself the owner of the land. The Assistant Collector came to the conclusion that the present plaintiff, Hamid Ali Shah, had proved his ownership of the land, and upon that finding maintained the notice of ejectment. The defendant appealed to the Commissioner, who pointed out that the finding of the Assistant Collector in favour of the plaintiff’s ownership of the land was not sufficient to give the Revenue Court jurisdiction. The Commissioner held that the relation of landlord and tenant did not exist between the parties, and reversed the order of the Assistant Collector, holding that the case was “essentially one for the Civil Court.” The learned Subordinate Judge refers to a decision of Burkitt, J., in Baldeo Singh v. Imdad Ali (1893) I.L.R. 15 All. 189. That decision, I may mention, was followed by me in the case of Deo Narain Rai v. Sheo Charan Rai Weekly Notes, 1893, p. 166. But the circumstances of the cases dealt with in these two decisions were entirely different from those of the present case. The plaintiffs in both those cases had endeavoured to eject the defendant by taking action under Section 36 of the Rent Act, but the Revenue Court had, on the defendant’s objection, held that the defendant was a tenant with right of occupancy. Under these circumstances my brother Burkitt and I held that no suit was maintainable in a Civil Court to eject the defendant as a trespasser. That this view is right is quite evident from the provisions of Section 96, Clause (b) of the Rent Act, although that was not referred to in our judgments. The present case is on all fours with an unreported case decided by my brother Banerji–Second Appeal No, 196 of 1899, decided on the 12th July 1899 (since reported. Vide supra p. 83.) In that case, as in this, the Revenue Court held that the relation of landlord and tenant did not exist between the parties. With the following passage of the judgment, I fully concur:–“The mere fact of the plaintiff having applied to the Revenue Court for the ejectment of the defendant does not estop him from asserting, as he has done in the present suit, that the defendant is unlawfully in possession, that is, as a trespasser.”
2. In my judgment the suit was cognizable by the Civil Court. I therefore allow the appeal, and, reversing the decree of the Lower Appellate Court, remand the suit to that Court under the provisions of Section 562 of the Code of Civil Procedure, with directions to readmit the appeal under its original number on the register, and proceed to dispose of the remaining grounds raised in the memorandum of appeal to it. The appellant will have the costs of this appeal. Other costs in the case will abide the event.
