JUDGMENT Mohammad Ismail, J.
1. This is a plaintiff's appeal from a decree of the learned Civil Judge of Bareilly dated 18th September 1935, which reversed a decree dated 26th March 1935 of the Haveli Munsif, Bareilly. The facts that have given rise to this litigation are as follows: One Laobhman Prasad, along with his sons, mortgaged certain zamindary property in mauza Raipura Girdhari Lal in favour of the plaintiffs Durga Prasad and Madan Mohan. On 20th August 1923, Lachhman Prasad, father of defendants 2 to 4, executed a permanent lease of certain plots which constituted his khudkasht cultivation, in favour of his own nephew Om Prakash, defendant 1. A few days later, on 30th August 1923, Lachhman Prasad applied for insolvency and was ultimately declared an insolvent. His entire property was taken possession of by the Official Receiver who sold it to the plaintiffs on 20th October 1932. The plaintiffs now come to Court with the allegation that Lachhman Prasad fictitiously executed the patta mentioned above in favour of his nephew, although he continued in possession of the same. The plaintiffs sued for possession of the plots covered by the patta. The learned Munsif decreed the suit, but as stated above the learned Additional Civil Judge on appeal reversed the decree of the Court of first instance.
2. The plaintiffs in their plaint have treated the defendant as a trespasser on the ground that the defendant did not acquire tenancy rights under the lease executed by Lachhman Prasad. It appears from the evidence that after the execution of the lease when the property was taken possession of by the Official Receiver, the defendant paid rent for the holding to the Official Receiver till 1932. It follows therefore that the defendant was treated as a tenant of the holding under the aforesaid lease for nearly nine years before the plaintiffs came on the scene. Under the circumstances, it is impossible to hold that the defendant is a mere trespasser and not a tenant. If the defendant is a tenant, the Civil Court will have no jurisdiction to eject him and the suit should have been filed in the Revenue Court. In Mt. Aziz Fatma v. Mukund Lal (1932) 2 A.I.R. All. 480 on more or lass similar facts-as involved in the present case, a Bench of this Court declined to eject the tenant. The facts of this case were that the zamindary shares of two brothers were put to sale in execution of a simple money decree and purchased by one Haji Muhammad Saleh Khan on 20th April 1925. At the time when that sale took place, another person, a mortgagee, had also-brought a suit in respect of this property. The mortgagee had obtained a final decree on 3rd April 1925, and he in his turn put the property to sale. The former purchaser, Haji Muhammad Saleh Khan, had received notice of the impending sale on 2nd September 1925, and on 8th September Saleh Khan executed a lease of certain plots in favour of one Mohammad Ishaq for 20 years, at a favourable rate of rent. In July 1926 the property was-sold again in execution of the mortgagee's decree and was purchased by the plaintiff, who filed a suit for declaration that the lease in favour of Ishaq was fictitious and void, for possession of the plots covered by the lease and for damages. The learned Judges granted a declaration, but held that the defendant having been admitted to the occupation of the land could not be treated as a trespasser and he could be ejected only under the provisions of the Tenancy Act.
3. In another case reported in Maula Das Khan Radha Kauji (1935) 2 A.I.R. All. 629 a perpetual lease was executed by a mahant on favourable terms to the lessee. His successor challenged the authority of his predecessor to execute the perpetual lease. It was held that the late mahant had no right to execute a permanent lease, but as the defendant was in possession of the land under a lease executed by the then landlord, he could not be treated as a trespasser, and the suit for ejectment was dismissed. The position of the defendant in this case is identical, if not better. He was placed in possession of the plots in dispute by Lachhman Prasad and his sons who had full authority to execute the lease. The Official Receiver, who was in possession of the estate of Lachhman Prasad and his sons, accepted rent and treated the defendant as a tenant. Under these circumstances, I am not prepared to hold that the defendant is a mere trespasser. The learned Counsel for the appellants has referred me to several rulings in support of his contention that the defendant is a trespasser and the Civil Court has jurisdiction to eject him. It may be conceded that if the defendant is a trespasser, the Civil Court has certainly jurisdiction to eject him.
4. The question however is whether the defendant is a trespasser or a tenant. The first case cited by the learned Counsel for the appellants is reported in Amina Bibi v. Yusuf (1922) 9 A.I.R. All. 449 In this case it was held:
Ali these circumstances confirm the view that the mind of Saiyid Mahmud was deranged and has been so for IS or 16 years and that he was mentally unfit and incapable of understanding or realizing the effect of the transaction, which Saiyid Ali Zafar managed to secure from him for the benefit of his wife.... The only conclusion we can come to is that the lease was void for want of competency to contract due to the unsoundness of mind of Saiyid Mahmud from its very inception.
5. It is obvious that this ruling in no way supports the contention of the learned COUDBOI for the appellants. In the present case Lachhman Prasad was fully competent to execute the lease in respect of his khudkasht land. It may be that the object of the lease was to defraud the creditors. In that case the lease will be voidable at the option of the creditors or of the Official Receiver, but it cannot be said that the lease was void ab initio. The next case is reported in Raghubar Dayal v. Mahesh Gir (1913) 20 I.C. 147 In this case it was held:
The exclusive jurisdiction of the rent Courts in actually ejecting lessees does not preclude a person affected by the lease from seeking a declaration of his title in the Civil Courts, actual possession lining recoverable from the rent Courts alone.
6. This is exactly the position that has been taken by the learned Civil Judge. Unfortunately for the plaintiffs they do not claim a declaration in respect of the lease of 1923. They treat the lease as a nullity and ignoring that lease, they have sued for delivery of possession of the property covered by the lease. In my opinion, it is not possible for the plaintiffs to treat the lease as a nullity altogether. It is certainly voidable, but not void. The learned Counsel has also cited a ruling of their Lordships of the Judicial Committee reported in Bijoy Gopal Mukerji v. Krishna Mahishi Debi (19070 34 Cal. 329. This however was a case of alienation by a Hindu widow, which was challenged by the reversioners. Their Lordships at p. 331 have made the following observation:
But she may alienate it subject to certain conditions being complied with. Her alienation is not therefore absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property.
7. In my opinion, a tenancy created by a zamindar is not on the same footing as an alienation by a widow. The facts being entirely dissimilar, this ruling is no authority for the proposition advanced by the learned Counsel for the appellant. The learned Counsel has also contended that this case may be treated as a suit under Section 53, T.P. Act. Under Section 53, T.P. Act, a suit has to be a representative suit, and any instrument that the plaintiff wants to avoid has to be declared so by the Court. It is not open to the plaintiff to treat the transfer as a nullity and to claim possession without obtaining a declaration from Court. Lastly, it has been urged by the learned Counsel for the plaintiff that his plaint may be returned, if the Court finds that it has no jurisdiction to grant a relief for ejectment. This course is not open to me at this stage. The question of jurisdiction at the initial stages is decided by the allegations in the plaint. Having regard to the pleas in the plaint the Court did have jurisdiction to entertain this suit. If it is found ultimately that the allegations of the defendant are cor. rect, in that case the suit has to be dismissed. I may refer to a Full Bench ruling reported in Mt. Ananti v. Chhannu (1930) 17 A.I.R. All. 193. The following observations fully support the contention of the respondent:
When the plaintiff has chosen his forum, it will be for the Court in which the suit has been filed or application has been made to see whether, on the allegations made in the plaint or application, it is cognizable by it.... It may be that on the facts alleged and established by the defendant it will be found that the plaintiff's allegations, as made in the plaint, are incorrect or false and that the real relief, which the plaintiff is entitled to get (if any), is not within the jurisdiction of the Court which is seized of the case, to grant; in such circumstances, the suit will be dismissed, on the ground that the Court is not in a position to grant the relief.
8. In the present case, if the plaintiff had sought ii relief for a declaration to the effect that the lease executed by Lachhman Prasad and his sons was inoperative and ineffectual, I would certainly have granted his prayer; but as it is, it is impossible for me to grant him a relief which he has not applied for. The only relief claimed in the plaint is that for ejectment of the defendant, and having held that the defendant is not a trespasser but a tenant, it is not possible for me to grant him this relief. In the result I affirm the decree of the Court below and dismiss the plaintiff's suit with costs. Leave to appeal under the Letters Patent is granted.