JUDGMENT Dalal, J.
1. This is a Reference to this Court made by the Collector of Basti under Section 195 of the Tenancy Act, because he doubted whether the appeal pending before him "in a particular matter should be filed in a Civil or a Revenue Court. One Kashi Chamar sued the defendant, Baldeo Kurmi, for ejectment; and one of the grounds of defence was that the defendant cultivated the land in dispute as tenant of the Raja of Bansi and paid rent to him. The plaintiff's case was that he was an occupancy tenant of the land and Baldeo Kurmi was his sub tenant. The Assistant Collector decided that Kashi was occupancy tenant of the land and that.Baldeo was his sub-tenant.
2. The learned Collector was of opinion that the appeal would lie to a Civil Court if the principle of the ruling in the case of Har Prasad v. Tajammul Hussain 44 Ind. Cas. 720 : 16 A.L.J. 239 were followed. The Board of Revenue nas dis-sented from that ruling in. Kundan v. Jawahir (1919) Unpublished Decisions of the Board, Vol IV, page 102.
3. In my opinion, the facts of this case do not call for a decision as to, which of the views in the two judgments is correct. The question before me is covered by authority; In Niranjan v. Gajadhar 30 A. 133 : 5 A.L.J. 71 : A.W.N. (1908) 45 one Niranjan applied as owner of a fixed rate holding for ejectment of Gajadhar on the ground that Gajadhar was his sub-tenant. The Assistant Collector dismissed the suit. The plaintiff appealed to the District Judge who made a reference to this Court, as he was: not in agreement with a Single judge decision of this Court in Chhittar Singh v. Hup Singh A.W.N. (1906) 247 : 3 A.L.J. 603. A Bench of this Court held that the appeal lay to the Revenue Court and not to the Civil Court.
4. It was argued here that the question in, dispute between the tenant and sub-tenant is one of proprietary title in accordance with the provisions of Section 198 of the Tenancy Act. The heading of that section in Ch. XIV of the Tenancy Act is "Questions of proprietary title in Revenue Court." Section 198 lays down "When in any suit against a tenant under this Act, the defendant pleads that the relation of land-holder and tenant does not exist between the plaintiff and himself on the ground that he actually and iii good faith pays the rent of his holding to some third person, the question of such payment of the rent to such third per* son shall be inquired into, and, if the question is decided in favour of the defendant, the suit shall be dismissed." The second, Clause of this Section lays, down "The decision of the Court on such" question shall not affect the right of any person entitled to the rent of the holding to establish; hia title by suit in the Civil Court." It was contended on behalf of the plaintiff-respondent that, according to the terms of the first Clause of this section, the question as to whether Kashi actually and in good faith paid the rent of his holding to the Raja of Bansi was a question of proprietary title and that had to be decided in the appeal pending before the Collector of Basti. In my opinion, land-holder and tenant do not mean tenant and sub-tenant, as they would have' to mean in order to support the argument of the plaintiff's learned Counsel. Sub-tenant is Separately defined; in Section 4 of the Tenancy Act and the term 'tenant' is not defined as including a sub-tenant. A subtenant is not a class of tenants enumerated in Section 6; so a sub-tenant cannot be called non-occupancy tenant in Section 19 of the Act. A discussion of the terms of Section 198 of the Tenancy Act, therefore, does notarise here and I am not called upon to determine whether the Bench decision in the case of Niranjan may be supported or not.
5. A dispute between a tenant and a subtenant raises no question, of proprietary title. The. suit being one for ejectment the appeal would go out of; the cognizance of the Revenue Court only if a question of proprietary title had been in issue in the Court of first instance and is a matter in issue in the appeal. No such question arises here, so the jurisdiction of the Revenue Court is not ousted as laid down by Schedule IV, Group C) Serial No. 29.
6. Presumably the words landlord and tenant have.been used in Section 63 to include tenant and sub-tenant and, if the analogy be applied to Section 198, 1 am of opinion that the decision reported in Har Prasad v. Tajammul Husain 44. Ind. Cas. 720 : 16 A.L.J. 239 is not correct. The provisions of Section 198 are to be read in contradistinction to the provisions of Section 199, Tenancy Act. The decision of the. Revenue Court under Section T98 is not binding on a Civil Court, while that under Section 199 is. The proprietary title contemplated is not the dispute between the parties to the suit but the one between the plaintiff land-holder and the third person, to whom the defendant alleged that he paid rent in good faith. Such a dispute over a proprietary title was involved in the decision of the question of payment to some one other than the plaintiff in good faith. That is the dispute which is referred to as one of proprietary title in the heading over Section 198. The dispute between the parties to the suit is to be kept strictly in the Revenue Court; otherwise there would be no necessity to permit of a suit in the Civil Court. If the appeal in such a case lay to the Civil Court, the decision of the Civil Court would he binding on another Civil Court and there would be no object in providing a saving clause, as is done in Section 198.
7. In the present case the pleadings' and judgment of the Trial Court are wanting in defihiteness. The defendant probably desired to raise such a defence as is mentioned in Section 198 but no allegation was made in the written statement of payment of rent being made to the Raja of Bansi in good faith. The Trial' Court framed no issue on the question of the payment of rent to a third person in good faith.
8. If the case is taken out of the provisions of Section 198, there can be no doubt that no issue of a claim to a proprietary title arises be-tween the parties here.
9. It will not be found possible to reduce the different rulings of this Court to one or more consistent principles of law; so I think that every matter should be decided on a different principle of law in accordance with previous decisions on similar facts. Mr. Justice Banerji consistently took the extreme view in favour of the Civil Court's jurisdiction, as stated in Chhittar Singh's case (4) and was able to impress this view on Benches of which he was a member. If this view had been consistently adopted, the different decisions could have been referred to a uniform principle of law but other, Judges when not sitting with Mr. Justice Banerji did not adopt ' this" view, Mr. Justice Tudball, the other member of the Bench in the case reported as Har Prasad v. Tajammul Hussnin 44. Ind. Cas. 720 : 16 A.L.J. 239 did not follow, the principle of that ruling to its logical conclusion in Gurcharan Kuar v. Deokinandan Kuar 58 Ind. Cas. 760 when sitting singly. I agree with this decision that when the title to a tenure is in dispute, the jurisdiction of a Civil Court does not arise, The Full Bench ruling, however, in Bindeshiwari v. Gokul 22 Ind. Cas.964 : 36 A. 183 : 12 A.L.J. 251 (Chief Justice, Banerji and Ry ves, J J.) following Dalchand. v. Shamla2 A.L.J. 176 : A.W.N. (1905) 46, (Blair and Banerji, JJ.) and dissenting from Udit Tiwari v. Balhari Pande 21 Ind. Cas. 460 : 35 A. 521 : 11 A.L.J. 812 (Tudball and Piggott, JJ.) is in conflict with this opinion. There the dispute between the parties related to the possession of a holding. A claimed to be tenant and alleged that B was his sub-tenant. B was one of the proprietors of the village and A admitted this fact. A's contention was that the tenure was his while B alleged that he held it as khudkasht. In reality the dispute related to a tenure and not to any interest in revenue paying property.
10. It is enough for me to say that, in this present, case, my opinion in favour of the jurisdiction of the Revenue Court is supported by rulings in Niranjan v. Gajadhar 30 A. 133 : 5 A.L.J. 71: A.W.N. (1908) 45 Daulatia v. Hargobind57 Ind. Cas. 206 : 43 A. 18 : 18 A.L.J. 923 : 2 U.P.L.R. (A.) 289 and Gurcharan Kuar v. Deokinandan Kuar 58. Ind. Cas. 760 and that rulings to the contrary on similar facts have not come to my notice. It may be conceded that certain principles enumerated in other rulings, if pressed to their logical conclusion, would not support the view.
11. My answer to the reference is that the appeal was correctly filed in the Revenue Court.
Boys, J.
12. The plaintiff sued to eject the defendant on the allegation that he, the plaintiff, was an occupancy tenant and that the defendant was his sub-tenant. The defendant replied that the plaintiff had nothing to do with the plot of land and that the defendant himself was the tenant-in-chief. There is no dispute as to who is the proprietor of the plot; the parties are agreed on this point. The Assistant Collector gave the plaintiff a decree. Upon appeal to the Collector, he has referred the matter for the opinion of this Court under Section 195 of the Agra Tenancy Act. He has been led to adopt this course because of a difference, as suggested, between the law as laid down on the one hand in Har Prasad v. Tajarnmul Hussain 44. Ind. Cas. 720 : 16 A.L.J. 239 (Banerji and Tudball, JJ.), and Tulhi v. Ramraj (1922) Unpublished Decisions of the Board, Vol VI, page 22, High Court Section (Gokul Prasad, J.,) and on the other in Kundan v. Jawahir (1919).Unpublished Decisions of the Board, Vol. IV, page 102. The Collector expresses his difficulty in the following terms:--'That in the first two cases it has been held that in sults for ejectment in which the defendant pleaded that a third person and not the plaintiff was the zemindar of the land in dispute and the Court decided the question of proprietary title, the appeal lay to the District Judge; that in this suit the de fence set up comes under Section 198 and if these two decisions are followed the Court of the Collector has no jurisdiction; that in the third case the Board declined to follow the first decision of the High Court (the other decision of the High Court was of later date) and held that in a case of this nature no question of proprietary title arose and that the appeal, therefore, lay to the Revenue Court." In consequence of this dilference of opinion he has referred the case.
13. I will first consider the authorities apart from any effect that Section 198 may have.
14. In Har Prasad v. Tajarnmul Hiiss'ain 44 Ind. Cas. 720 16 A.L.J. 239 the defendant claimed to be lessee of another person (semble a different proprietor), and iu Tulhi v. Ramraj (1922) Unpublished Decisions of the Board, Vol. Vi, page 22, High Court Section' the defendant alleged that the plot belonged to another village and that he had been paying rent to the proprietor of that village. In both these cases it will be seen that there was in the back-ground the existence, alleged by the defendant, of another proprietor other than the proprietor under whom plaintiff held. On the other hand in the case decided by the Board, Kundan v. Jawahir (1919).Unpublished Decisions of the Board, Vol. IV, page 102, there was not even in the background any question of any other proprietor; both plaintiff and defendant were in agreement as to who was proprietor. This latter is also the case in the question before us. Similarly in Niranjan v. Gajadhar 30 A. 133 : 5 A.L.J. 71: A.W.N. (1908) 45 where the plaintiff claimed as fixed rata tenant to eject the defendant as, his subtenant while the defendant contended that he himself was the fixed rate tenant, both parties apparently claimed to hold under the same proprietor. In that case a Bench of this Court, Knox and Ailtman, JJ,, held that "when there is a question whether one party or the other is the cultivator of specified land, no question of proprietary right arises." The earlier contrary view expressed in the judgment of Mr. Justice Banerji andt reported in Chhittar v. Rup Singh A.W.N. (1906) 247 : 3. A.L.J. 603 was dissented from.
15. We have, therefore, two cases of this Court Har Prasad v. Tajarnmul Husain 44 Ind. Cas. 720 : 16 A.L.J. 239 (decided by a Bench) and Tulhi v. Ramraj(1922) Unpublished Decisions of the Board, Vol. VI, page 22, High Court Section (of a Single Judge), in both of which it was held that a question of proprietary title was in issue but in both of which there was alleged to be another proprietor whose tenant the defendant was. On the other hand we have a case of the Board, Kunddn v. Jawahir (1919).Unpublished Decisions of the Board, Vol,IV, page 102 and a decision of a Bench of this Court Niranjan v. Gajadhar 30 A. 133 : 5 A.L.J. 71 : A.W.N. (1908) 45 in both of which it was held that no question of proprietary title was in issue but in both, of which there was no dispute even in the background as to who was the proprietor, both parties to the suit admitting the same person to be proprietor. The facts of the present case are the same as in the two latter cases.
16. Whether or no the two former cases can be distinguished from the two latter cases on the ground that in the former there was contention between the disputant tenants as to who was the proprietor while in the two latter cases there was no such contention, is a question into which I need not enter for the decision in the two former cases was not based on the fact that there were two proprietors in the background with conflicting interests but on the ground that the. cases came within Section 198 and were, therefore, as it was held, necessarily cases of proprietary title being in issue. To Section 198 I shall refer later. So far as the present case is concerned it is on all fours with Kundan v. Jawahir (1919).Unpublished Decisions of the Board, Vol,IV, page 102 and Niranjan v. Gajadhar 30 A. 133 : 5 A.L.J. 71 : A.W.N. (1908) 45 and I have no hesitation in holding that those cases were rightly decided. A mere statement of the cases there and in the present case, namely, that the question who is the proprietor is not in dispute, even in the background, but that there is a proprietor admitted by both parties to be proprietor, and that only two persons both of whom are admittedly tenants of one sort or' another are contending with each other itself suggests irresist-ably that there is no question of the proprietary title in issue. I turn now to a consideration of Section 198. It is frankly admitted by Mr. Harnandan Prasad, (who, appearing for the defendant, contends that the Collector has no jurisdiction to hear the appeal) that the decision in Niranjan v. Gajadhar 30 A. 133 : 5 A.L.J. 71 : A.W.N. (1908) 45 is against him. But he urges that in Ear Prasad v. Tajammal Hussain 44 Ind. Cas. 720 : 16 A.L.J. 239 and Tulhi v. Ramraj (1922) Unpublished Decisions of the Board, Vol. VI, page 22, High Court Sections the Court rightly considered and relied on Section 198; that in Niranjan v Gajadhar 30 A. 133 : 5 A.L.J. 71 : A.W.N. (1908) 45 the Court did not consider Section 198; that it should have done so and we should do so in the present case. His conclusion is two-fold:--(a) that the present case comes within the terms of Section 198, (b) that the case coming under Section 198, it follows that a question of proprietary title is in issue because the heading immediately preceding Section ltJ8 describes the case which follow that heading as being cases involving a question of proprietary title.
17. I quote the heading and the section in extenso as nearly every line is suggestive of the carrying out of the intention, as I understand it, of the Legislature. "Questions of proprietary title in Revenue Court." "198(1). When, in any suit against a tenant under this Act, the defendant pleads that the relation of land-holder- and tenant does not exist between the plaintiff and himself on the ground that he actually and in good faith pays the rent of his holding to some third person; the question of such payment of the rent to such third person shall be inquired into, and if the question is decided in favour of the defendant, the suit shall be dismissed.
(2) The decision of the Court on such question shall not affect the right of any person entitled to the rent of the holding to establish his title by suit in the Civil Court.
18. To come to the first part of the argument for defendant, that the present case comes within Section 198.
19. Is the plaintiff occupancy tenant a landholder and is the defendant sub-tenant a tenant within the meaning of Section 198.
20. Section 4(5) declares "land-holder' means the person to whom, and 'tenant' the person by whom rent is payable." Section 4(7) begins "'sub-tenant' means a tenant who, etc." i. e., it declares that a sub-tenant is a tenant though he is a tenant of a particular kind. The definitions are wide enough to include in "laud-holder" and "tenant" an "occupancy tenant" and his "sub-tenant" respectively "unless there is something repugnant in the subject or context"-, (see the opening words of Section 4). Is there anything repugnant in the subject or context in Section 198? Is there anything in Section 198 justifying a restriction of the scope of the' words ' land-holder" and "tanant" to ''proprietor" and "tenant-in-chief"? I think there is.
21. Let us suppose in a case like the present the words to be wide enough to include an "occupancy tenant" "A and his "sub-tenant" B. A sues to eject B.B denies the relationship of landlord and tenant on the ground that he has been paying rent in good faith to G. The Court is to inquire into the facts of the actual payments and the good faith of the payments and if the decision on these points is in favour of B the suit is to be dismissed. It will be noted that herein there is no provision for the decision of the question of A's right to receive the rent though A may have ample _proof of that right. What remedy then has A? lie' can appeal, of course, until he has exhausted his right of appeal, but if the decision of the facts of actual payments in good faith is upheld he will still be unable to establish his right to receive the rents. Nor can he file a separate suit in the Civil Court to establish that right. Section 198(2) gives him no such right; it gives no right at all to anybody; it merely declared that any existing right of any person entitled to the rent to establish his title by suit in the Civil Court shall not be prejudiced. If, therefore, Section 198 applies and the suit in the Revenue Court is decided against A on the ground of actual payments made in good faith by B to G he is left without remedy. There is therefore, as I view it, matter in Section 198 which is repugnant to the application of the definitions of "land-holder" and "tenant" in their widest sense to those words as used in Section 198(1).
22. If such a case as the present comes within Section 198 and if the plaintiff, where the decision under Section 198(1) is against him and his suit is dismissed, has a remedy by a suit in the Civil Court to get his right to receive the rent declared, we have the plaintiff's right being determined in a Civil Court. But if the decision under Section 198(1) was in plaintiff's favour, there is no provision for the plaintiff being referred to a Civil Court to establish his right to receive the rent; the Revenue Court would have to proceed in the ordinary course to the determination of the question of the plaintiff's right. If, therefore, the argument for the defendant were to be accepted the very same question of plaintiff's right to rent would have to be determined by the Civil Court or by the Revenue Court according as the decision under Section 198(1) was adverse or favourable to the plaintiff. This is a further reason for holding that a case such as the present does not come within Section 198. v
23. I hold then that the words "landholder" and "tenant" do not an Section 198(1) embrace as "occupancy-tenant" and his "sub-tenant."
24. It is consistent with this view that the, provision in Section 198(2) would be superfluous in the cases of an occupancy tenant and his sub-tenant as there is no right to go to the Civil Court which could be saved from being affected, though this consideration would not, of course, suffice by itself to show that Sub-section (1) could not apply to an "occupancy tenant" and his "sub-tenant" as-it would still be applicable to other cases.
25. I turn now to the second portion of the argument for the defendant. Assuming, contrary to the view I have expressed, that Section 198(1) does apply to the case of an occupancy tenant and his sub-tenant, it is then urged that a question of proprietary title. is in issue because- cases within Section 198 are described in the heading preceding Section 193, as the argument would interpret the heading, as involving questions of proprietary title.
26. I have expressed above the view that a case like the present does not come within Section 198(1) but the reasons I have given do not apply to exclude such cases as Har Prasad v. Tajammul Hussain 44 Ind. Cas. 720 : 16 A.L.J. 239 where the plaintiff claimed to be proprietor and would come within even the restricted scope of the term "land-holder." But in "that case Banerji and Tudball, JJ., proceeded to hold that the heading was conclusive proof, and it has been argued here that it is conclusive, that a question of proprietary title being in issue is necessarily involved in any case which comes within Section 198(1).
27. A heading of this nature is no doubt meant to express the intention of the Legislature, though it is at least open to question whether the words themselves have any operative effect. But I would not rule out the contention of the applicant on the ground that such a heading has no operative effect. I prefer to consider whether the words do bear the meaning attributed to them in Har Prasad v. Tajammul Hussain 44 Ind. Cas. 720 : 16 A.L.J. 239 and in argument here. To my mind they do not.
28. The heading does not say anything equivalent to "the following are cases where questions of proprietary title are in issue and such questions shall be heard by the Revenue Court in the following manner."-The heading is only equivalent to "let us consider the jurisdiction of the Revenue Court in certain cases and how far it is to proceed in the direction of dealing with proprietary title." The heading is not necessarily inappropriate to a case in which proprietary title is not in issue but is merely in the background. Further, the directions which follow such a heading as we have here might, consistently with the grammatical implications in that heading, be directions to the Revenue' Court to deal with the question of proprietary title or directions not to deal with it. We have, then, next to consider the terms of Section 19S to see which of these two courses the Legislature has adopted in Section 198.
29. Section 198 states a particular case where. a defendant pleads that he "in good faith pays the rent of his holding to some third person," and that is the, only plea which can bring the case within Section 198.
30. The section next says that the question of such payment, the question whether he actually in good faith pays the rent to a third person, is to be inquired into, and if decided in his favour, the suit is to be dismissed. It does not say that the proprietary title of the Receiver of the rent to receive the rent is to be enquired into; it expressly refrains from saying that, Finally, Sub-section (2) declares that the decision of such question, i. e.,. as to the fact of actual payment in good faith shall not affect the right of any person claiming to be entitled to the rent to sue in the Civil Court to establish his title. The sub-section does not, of course, create any new right to sue in the Civil Court but merely makes clear that any existing right is not affected by the decision, i.e., any person, including the third person who has been alleged to be receiving the rent, may, if he claims to be proprietor and his title is in peril, sue in the Civil Court to establish his title. Every line of the section is consistent with and suggests the view that in a case coming within the section the Court is to deal with the factum of payments of rent in good faith to a third person and not to deal with the title of the third person to receive the rent. That this view of the actual effect of Sub-section (1) of Section 198 is in accord with the intention of the Legislature is supported by a reference to the history of the section. The earlier Section 148 of Act XII of 1881 provided expressly for the third person being made a; party to the suit.' The present Section 198 omits that provision and the omission directly suggests that his title to the rent is not to be inquired into and this is in accord with the omission to provide for-any. enquiry into his title and, so far as Section 198(1) is concerned, the express limitation, of the enquiry to the single question whether any payment has been made in fact and in good faith.
31. I am, therefore, of opinion that there is nothing in the heading preceding Section 198 or ins. 198(1) to indicate that in a case coming within Section 198(1) a question of a proprietary title is necessarily in issue. Rather are all the indications to the contrary. The answer to the question whether a matter of proprietary title is in issue cannot be based on any conclusion that the case is or is not within Section 198 but must be answered independently of Section 198.
32. I have already stated my view that, independently of Section 198, no question of proprietary title is in issue in- the present case, at any rate where there is no contention between the parties as to who is proprietor. As to the cases liar Prasad v. Tajammul Hussain 44 Ind. Cas. 720 : 16 A.L.J. 239 and Tulhi v. Ramraj (1922) Unpublished Decisions of the Board, Vol. VI, page 22, High Court Sections my_ view that Section 198 and the heading to that section have no bearing on the question whether a matter of proprietary title is in issue involved my holding that in so far as those cases were based on the heading to Section 198 those decisions cannot be supported. Whether they could be effectively distinguished from the present case on the ground that in them there was at any rate in the background difference between the plaintiff's allegation and the defendant's allegation as to who was proprietor, and whether cases could be distinguished in which the person alleged by the defendant to be proprietor was made a party are questions answers to which are not necessary to the decision of the present case and into which I ought riot, therefore, to enter.
33. I would note that I have not omitted to give the best consideration in my power to a number of other decisions of this' Court and of the Board of Revenue and lam not unaware that there is a conflict of views to be found in those cases, and that the view which I have expressed could not always be reconciled with one or other of those cases. But, if I may say so, J have found little more than dicta in those cases to guide me and as the facts were not always the same I have not referred to them. Even in the case of Niranjan v. Gajadhar 30 A. 133 : 5 A.L.J. 71 : A.W.N. (1908) 45 there is nothing more than a dictum:
34. The above considerations lead me to the following conclusion:--that, even supposing the present case to come within Section 198(1), the heading to Section 198 does not. involve the conclusion that there is necessarily a matter of proprietary title in issue in the Revenue Court when it has before it a case within Section 198; that where the plea of the defendant literally or, in effect comes within Section 198(1), the Revenue Court must inquire into that plea, i, e., into the allegation of actual-payments in good faith to a third person and determine the question, but should not decide the question of the title of the alleged third person to receive the rent and has no concern with such title beyond such bearing as it may have on the determination of the good faith of the payments; that actually the present case does not come within Section 198 and the answer to the question whether a matter of proprietary title is in issue must be sought aliunde; that no question of proprietary title is in issue in the present case; and that appeal lies to the appropriate Revenue Court.
35. And my answer to the reference is that the defence set up does not come, as the Collector thinks it does, under Section 198; and secondly, that, if it does so come, there is still no question of proprietary title in issue and the case of liar Prasad v. Tajammul Hussain 44 Ind. Cas. 720 : 16 A.L.J. 239 and Tulhi v. Ramraj (1922) Unpublished Decisions of the Board, Vol. VI, page 22, High Court Sections in so far as they decided, that in all cases coming within Section 198 a question of proprietary title is in issue were wrongly decided; and that the appeal was properly filed in the Court of the Collector.
36. Our answer to the Reference is that the appeal lay to the Revenue Court and was properly filed in the Court of the Collector of Basti. We make no order as to' costs of this Reference.