ORDER
Chowdhry, J.
1. This reference is by the Subordinate Judge first class Kasumpti under Section 99, Punjab Tenancy Act (XVI [16] of 1887) because he enter, tains a doubt whether he is precluded from taking cognizance of a suit instituted in his Ct.
3. The pltfs. in the suit instituted in the Cfc. of the Subordinate Judge are Jagarnath & his two minor brothers Arjan and Gita Ram, and the defts. are Gayarao & his brothers Dragoo and Masania. The former are landlords of two bighas and thirteen biswas of land in village Barog Manlog, Tehail Arki, District Mahasu. Tha defts., who were tenants-at-will of the land, were dispossessed by the pltfa. The defts. thereupon filed a criminal complaint against the pltfs. which was unsuccessful. Thereafter the pltfs. filed an appln. to the Revenue Officer under Section 43 of the said Act for service on the defts. of a notice of ejectment on the ground mentioned in Clause (b) of Section 42, namely that the defts. had not a right of occupancy and did not hold for a fixed term under a contract or a decree or ordec of competent authority. Acting under Section 45 the Revenue Officer served the defts. with a notice to vacate the land or contest their liability to ejectment by instituting a suit for that purpose in a Revenue Ct.
3. On receipt of the notice the defts, instituted a suit against the pltfs. in the appropriate Revenue Ct. contesting their liability to be ejected. The Revenue Ct. declared the defts. to be occupancy tenants of the land under Section 8 of the Act and ordered restoration of possession of the land to them, and its decision was maintained up to the highest Revenue Appellate Ct.
4. Having failed in the Revenue Cts., the pltfs. filed the present suit against the defts. in the Ct. of the Subordinate Judge, first class, Kasumpti for a declaration that the aforesaid Revenue Ct. decree was passed without jurisdiction and was not binding on the pltfs., and tot a prohibitory injunction to restrain the defts. from recovering possession of the land by putting the decree into execution. The allegations on which the present suit has been filed are that the land having been in possession of the pltfs., it was not necessary for them to have applied to the Revenue Officer for the service of notice of ejectment on the defts., and that therefore the notice of ejectment served by that officer on the defts., the subsequent suit filed by the defts. in the Revenue Ct. to contest their liability to ejectment, and the decree passed in that suit were all without jurisdiction, especially the decree for possession, which relief could only have been prayed for in a subsequent suit by the defts. under Section 50 of the Act. The defence, so far as it is relevant for tbe disposal of the present reference, is that all tbe proceedings in the Revenue Cts. were legal and valid and that the civil Ct. had no jurisdiction to set aside the decree of the Revenue Ct.
6. There is no doubt that in order to determine the jurisdiction of a Ct. to entertain a suit the allegations in the plaint have ordinarily to be looked into. In the present case the pltfs, have questioned the jurisdiction of the Revenue Ct. to pass the aforesaid decree under Section 46, Punjab Tenancy Act on certain allegations. It is not necessary for me to express any opinion on the merits of those allegations, that is to say, on whether the Revenue Ct. did or did not have the jurisdiction to pass the decree in question. That will be a matter for the trial Ct. to decide. The only question which I am called upon to decide under Section 99 of the Act is whether the trial Ct. the Subordinate Judge first class Kasumpti, has the jurisdiction to take cognizance of the suit. If the allegations in the plaint were to te the guiding factor, there is ample authority for the proposition that a civil Ct. can entertain a suit to declare the decree of a Revenue Ct. to be ultra vires on the ground that the Revenue Ct. acted witbout jurisdiction in passing that decree : Secretary of State v. Fahamidannissa Begum, 17 I. a. 40 : (17 Cal 590 P. C.), and Mangtu Lal v. Secretary of State, A. I. R. (27) 1940 Pat. 161 : (18 Pat 854).
6. Proviso (i) to Section 77, Punjab Tenancy Act, however, creates an exception to the abovementioned general rule about the jurisdiction cf a Ct. being determined on the basis of allegations in the plaint and not on the basis of any defence that may be taken up, because the proviso lays down that if in a suit cognizable by and instituted in a civil Ct. it becomes necessary to decide any matter which can under Sub-section (3) be heard and determined only by a Revenue Ct. the Civil Ct. shall return the plaint for presentation to the appropriate Revenue Ct. Now, as has already been seen, the only relevant defence in this case is a jurisdiction of the proceedings before the Revenue Officer and the Revenue Ct. On the pleadings in this case therefore the questions that arise for determination are : (i) whether at the time that the pltfs. moved their appln. under Section 43, Punjab Tenancy Act, the defts. were not tenants of the land in suit because, if at all, of the land being in possession of the pltfs. and not of the defts? and (ii) If the finding on the first issue be in the affirmative, whether, on that ground, the notice issued by the Revenue Officer and the decree passed by the Revenue Ct. under S. 45 of the said Act were without jurisdiction?
7. So far as the second issue is concerned, I have already stated that the decree of a Revenue Ct. can be questioned in a civil Ct. on the ground of its having been passed without jurisdiction. As regards the first issue, the only category under which the present suit would fall is that mentioned in Clause (d) of the Second Group under Sub-section (8) of Section 77, Punjab Tenancy Act, relating to suits by a landlord to prove that a tenant has not a eight of occupancy. It is, however, well established that this clause applies only where the relationship of landlord and tenant is admitted and all that is in dispute is the nature of the tenancy. Sham Singh v. Amarjit Singh, A. I. R. (18) 1931 Lah. 962: (19 Lah. 111). Further, it is well established that in order to constitute the relation of landlord and tenant as defined in the said Act the latter must have not merely the “right to hold” bat must also have possession as such, except for purposes of Sections 50 and 50A of the Act. Kesar Singk v. Nihal Singh, 45 p. B. 1891 (F. B.). In the present case the platfs. do not admit the tenancy of the defts. because they allege that at the crucial time the land in suit was in their possession and not in possession of the defts. That being so, the suit does not fall under the above category of suits, and it is therefore not excepted from the cognizance of a civil Ct.
8. It must be repeated that the question of whether the Revenue Ct. did or did not have the jurisdiction to pass the decree in question is a matter which it will be for the trial Ct. to decide. On the reference submitted to me by that Ct. under Section 99, Punjab Tenancy Act, I am of the opinion on a consideration of the pleadings of the parties that the suit is cognizable by the Ct. which has made the reference. The Presiding Officer of that Ct. is ordered to proceed with the suit.