JUDGMENT
Karamat Husain, J.
1. One Jagga Rai, an occupancy tenant, made a will in favour of his grandson (nawasa). After the death of Jagga Rai his widow took possession of his occupancy holding. On her death Jaggu Rai’s grandson applied for the correction of the jamdbandi and for the entry of his name. The application was opposed by the zamindars on the ground that Ramdhari Khan did not share in the cultivation during the lifetime of the tenants and was not, therefore, entitled to succeed. I may note here that the plaint of the suit out of which this appeal has arisen shows that not only Ramdhari Khan but other defendants also applied for the correction of jamabandi. The first Court rejected the application for the correction of the jamabaridi. On appeal the Collector granted it and the order of the Collector was confirmed by the Commissioner. The zamindars then brought the suit out of which this appeal has arisen and prayed for the cancellation of the will and for possession of the holding. There were other reliefs too, but they are not material for the, disposal of this appeal. All the defendants pleaded in their written statements that they held the land in dispute as the tenants of the plaintiffs and that the suit was not cognizable by the Civil Court. The Court of first instance dismissed the claim on the ground that the order of the Collector, which was confirmed by the Commissioner, was binding on the parties and ousted the jurisdiction of the Civil Court. The plaintiffs have preferred a second appeal to the Court and it is contended by their learned vakil that the Court of first instance ought to have acted under Section 202 of the Agra Tenancy Act and directed the defendants to institute a suit in the Revenue Court. The learned vakil for the respondents in answer to this contention says that as that question had before the suit been decided by the Revenue Court, it was not necessary for the Civil Court to follow the provisions of Section 202 of the Agra Tenancy Act and that that section applies only to cases in which the question that defendants are the tenants of the plaintiffs has not already been decided by a Revenue Court. This contention of the learned vakil for the respondents, in my opinion, has no force. There is no such limitation in Section 202 of the Agra Tenancy Act and I cannot read that limitation into the section. In Section 199 in those cases in which the defendant pleads that he is not the plaintiff’s tenant a certain procedure is proscribed and there is the limitation that that procedure is to be followed, if the question of title has not already been decided by a Court of competent jurisdiction. Had the Legislature intended to make any such, limitation in the provisions of Section 202 of the Agra Tenancy Act, it would have added, in that section, but in the absence of such a limitation the Civil Court is bound to require the defendants to institute a suit in the Revenue Court within three months. I, therefore. following Madartv. Kabir-un-nissa A.W.N. 1904, p. 114 andMare v. Gauri Sahai A.W.N. 1905 p. 46 set aside the decrees of the Courts below and send back the case to the Court of first instance through the lower appellate Court with directions to re-admit the suit under its original number in the Register and to follow the procedure laid down in Section 202 of the Agra Tenancy Act. It is not necessary for me at this stage of the case to decide whether the Civil Court had or had not jurisdiction to entertain the suit. Costs here and hitherto will abide the event. Costs in this Court will include fees on the higher scale.
