JUDGMENT Dar, J.
1. The plaintiff Bhagauti Prasad who is the zamindar of the village Mohanpur in the Gorakhpur district, brought a suit for recovery of rent against Chandrika Prasad alleging him to be a tenant of 14 holdings situated in the said village. On a plea being raised by the defendant that he was holding the property as a proprietor and that he was in adverse possession of the same, the matter was referred to the civil Court and on a finding of the civil Court against the contention of the defendant the revenue Court decreed the claim for rent against the defendant. Against this decree the defendant appealed to the District Judge of Gorakhpur and the learned Judge holding that the defendant had established his adverse possession against the property dismissed the claim. The plaintiff has now made a second appeal to this Court and the question before me is whether the finding arrived at by the lower appellate Court with regard to the adverse possession of the defendant is legally correct or not. The defendant has been in possession of this property since the year 1883. His possession commenced ostensibly under proprietary title. During this time he has not paid any rent to the zamindar of the property. Whenever a question arose as to the nature of defendant's possession, defendant asserted that he was in proprietary adverse possession of the property. Prima facie these facts which are not disputed before me establish a clear case of adverse possession and relying upon these facts the lower appellate Court has found the adverse possession proved. The contention of the plaintiff, however, is that the defendant was his tenant and the mere long possession by a tenant, even if it is accompanied by non-payment of rent and by assertion of hostile title, would not convert the possession of a tenant as adverse to the zamindar and the controversy in the case is whether or not defendant can be regarded as the plaintiff's tenant during all these long years or at any time during the intervening period. It is not asserted that any tenancy arose by reason of any contract or lease between the parties; but it is contended that a tenancy arose by operation of law and by reason of an order of the revenue Court. Whether this is so or not is the only matter for consideration in this second appeal.
2. In order to appreciate this, it is necessary to go into certain facts. The plots which are now in dispute form part of a larger plot of 26 bighas odd which at one time was owned by a man named Uma Prasad. In addition to these 26 bighas odd which were sir plots Uma Prasad owned in the village a 5 as. 4ps. share. On 5th April 1883, Uma Prasad made a gift of 26 bighas odd of sir plots mentioned above in favour of his younger brother Chandrika Prasad and within four days of this on 9th April 1883 Uma Prasad sold his 4-anna share in the property to Sarju Prasad the father of Bhagauti Prasad the present plaintiff. I have not been able to trace exactly what happened to the remaining property of one anna odd which remained with Uma Prasad after the sale and perhaps it is not very material to go into the details of this transaction. In the settlement which followed the sale Chandrika Prasad was recorded as the sir holder of these plots measuring 26 bighas odd apparently on the basis of the deed of gift mentioned above. In 1891 Sarju Prasad being dead, his son Bhagauti Prasad the present plaintiff, brought a suit for a declaration that the gift made by Uma Prasad to his brother Chandrika Prasad dated 5th April 1883, of 26 bighas odd of sir plots was a fraudulent gift and was void against him. This suit was dismissed by the trial Court but was decreed by the appellate Court and as a result of the decree of the appellate Court the gift of 5th April 1883 was declared fraudulent and void against Bhagauti Prasad though by the decree of the appellate Court Uma Prasad's rights as ex-proprietary tenants were preserved in the said sir plots. In 1894 a partition of the village took place and a qura was allotted to Bhagauti Prasad and these sir plots were put in the qura of Bhagauti Prasad of which he was recorded as the proprietor. The entry however, with regard to the rights which Chandrika Prasad held in these plots as recorded in partition proceedings was conflicting and confusing. It was stated in one column of the proceedings that he was an arazidar and in other columns of the proceedings it was stated that he was holding certain number as sir dakhilkari and a rent of Rs. 8-13-9 was stated to be assessed upon this holding. Certain other numbers were stated to be held by Chandrika Prasad as khudkasht gher dakhilkari and a rent of Re. 1-4-6 was assessed against it and a certain other plot was entered as ex-proprietary tenancy of Chandrika Prasad. The facts are not quite clear to me here, but it appears that probably this ex-proprietary holding came to Chandrika Prasad as an heir of Uma Prasad after his death.
3. Mr. Pande's contention is that the result of the partition proceedings was that Chandrika Prasad became in the eye of law a tenant of Bhagauti Prasad and this contention is based on the ground that on the holding a nominal rent was assessed and Chandrika Prasad was mentioned as arazidar in village papers. I have already stated that the partition entry is somewhat conflicting. An arazidar may be an under-proprietor, may be a plot proprietor, may be a tenant and may have interest in land short of a proprietor. The holding also is described as sir dakhilkari and khudkasht gher dakhilkari. It is true that a rent has also been shown against sir dakhilkari and khudkasht gher dakilkari. But it is not possible to say on the basis of these entries that a relationship of landlord and tenant came into existence between the parties by operation of law. Apart from the vagueness and indefiniteness of the entry there is one other difficulty in the case that in partition proceedings a dispute whether a person is holding the property as a tenant, does not properly arise and the mere fact that a person has been recorded in partition proceedings as a tenant will not make him a tenant in the eye of law if in fact such a relationship did not arise between the parties.
4. The partition entry of 1894 remained practically a dead letter. The finding of the lower appellate Court is that in spite of the entry rent was never paid by Chandrika Prasad and he continued to hold the land without payment of any rent asserting a hostile title against the zamindar. Some 23 years later in or about 1917 revision of records operations began in Gorakhpur district and in the course of the said operations a question again arose as to the nature of the holdings which were in possession of Chandrika Prasad. It appears that after the partition and sometime prior to 1917 the entry with regard to Chandrika Prasad's holdings in village papers was again changed and he was being recorded as ex-proprietary tenant. Chandrika Prasad, therefore, pleaded that the entry as to ex-proprietary tenancy was fictitious and he further pleaded that he was in adverse proprietary possession of the property and by an order dated 17th March 1917 the Land Record Officer referred him to the civil Court to get his proprietary title determined by the civil Court. On 4th May 1917, Chandrika Prasad instituted a suit No. 261 of 1917 in the civil Court of Gorakhpur for a declaration that he was holding the said property as a proprietor and he had prescribed a title by adverse possession to the said property. On 6th August 1917, the claim of Chandrika Prasad was dismissed and I am informed that the decision was affirmed in appeal. After the decision by the civil Court that Chandrika Prasad was not holding the property as a proprietor and that he was not in adverse possession of the property the issue was taken up by the assistant Land Record Officer as to "what was the nature of tenure of the land in dispute". The question was fully gone into by the Land Record Officer and by a decision dated 3rd May 1918 the land record officer came to the conclusion that Chandrika Prasad was an occupancy tenant of these plots. In spite of this order for another 17 years till the suit out of which the present appeal has arisen was instituted, Chandrika Prasad remained in possession of the property without paying any rent and without acknowledging the plaintiff as his landlord and without attorning to him.
5. Mr. Pande, however, contends that the effect of the order dated 3rd May 1918, passed by the Assistant Land Record Officer mentioned above was to make Chandrika Prasad an occupancy tenant and to bring about a relation of landlord and tenant between the plaintiff and the defendant and if this be so, the mere non-payment of rent and length of possession and even assertion of hostile title, after tenancy has come into existence, would not terminate the tenancy. It becomes, therefore, necessary to consider whether the order dated 3rd May 1918 did create a tenancy by operation of law and by a valid order of the Court or not and the answer to this question will depend upon the nature of proceedings before the Land Record Officer and the powers which he was exercising under the Agra Tenancy Act and the Land Revenue Act in arriving at the decision which he did. It is not disputed before me that it is competent to a Revenue Court to declare a person as tenant of another person although the factum of tenancy is denied by the other side, and such an order if validly passed will bring into existence the relation of landlord and tenant by an order of the revenue Court. It is also not disputed before me that in a proceeding under Section 95, N.W.P. Tenancy Act, 2 of 1901, a person could be declared a tenant against his wish at the instance of and in a suit by the landlord and further that in a suit for recovery of rent brought by a landlord against a tenant in a revenue Court, if a decree for rent was passed against the tenant on a finding that tenancy was established even while the tenant was denying the tenancy, such a decree for rent would again establish the tenancy. But the contention before me is that the power of the Land Record Officer under the Land Revenue Act, 3 of 1901, was a limited one and he had no power to declare Chandrika Prasad as occupancy tenant in proceedings in which the factum of tenancy itself was in dispute. The powers of Land Record Officer in so far as they are relevant for the purposes of this case, are defined in Section 54, Land Revenue Act, which reads as follows:
All undisputed entries in the record of rights shall be attested by the parties interested and all disputes regarding such entries, whether taken up by the Record Officer of his own motion or upon application by any party interested, shall be disposed of by him in accordance with the provisions of Sections 40, 41, 42 and 43.
6. It will thus be seen that the Land Record Officer has not been given any power under the statute to decide suits under Section 95 of the Agra Tenancy Act or to decide questions of tenancy in suits for recovery of rent and his powers are limited to those matters which relate to maintenance and correction of records and which powers in ordinary times are exercised by the Collector. The proceedings before the Land Record Officer in this case were the proceedings relating to the correction of registers and it must be taken that he was exercising the power under Sections 40 and 42, Land Revenue Act. Now, it has been held in this Court over and over again that under Section 40 questions of title are not determined at all and disputes under Section 40, Land Revenue Act, are decided on the basis of possession and orders passed under Section 40, Land Revenue Act, do not operate as res judicata either in the civil Court or in the Revenue Court, even with regard to matters which relate to the tenancy and correction of khatauni and jamabandi, that is to say registers under Clause (e) of Section 32. There is also authority for the proposition that Section 42, Land Revenue Act, only comes into play when the factum of tenancy is admitted on both sides and the dispute is only as to the class and nature of tenancy and in a case where the tenancy itself is in dispute, any order passed under Section 42, Land Revenue Act, will not have the effect of res judicata and the decision will be liable to be reagitated in a civil or revenue Court : see Ram Jas Singh V. Ram Harak Pandey ('30) 17 A.I.R. 1930 All 305 and Kashi Prasad v. Ambika Prasad ('30) 17 A.I.R. 1930 All 611. In Ram Jas Singh V. Ram Harak Pandey ('30) 17 A.I.R. 1930 All 305 at page 1259, Sir Shah Sulaiman has observed as follows:
The learned advocate who has argued this case contends that Sections 39 and 42 should be read together and it must be assumed that the Collector decided the dispute respecting the class or tenure of the tenant. I am unable to accept this argument. The dispute at that time related to the existence of the tenancy itself and not to its class or tenure and was therefore not covered by Section 42 of the Act. In my opinion a clear distinction exists between the case where the tenancy itself is disputed and the case where the tenancy is admitted but its class or tenure is in dispute.
7. In Kashi Prasad v. Ambika Prasad ('30) 17 A.I.R. 1930 All 611 at p. 761 Sir Lai Gopal Mukerji has stated the law as follows:
Then we come to Section 42. It runs as follows : "In case of any dispute respecting the class or tenure of any tenant, the Collector shall decide according to the principles laid down in the North-Western Provinces Tenancy Act, 1901, or the Oudh Rent Act, 1866, as the case may be." It will be noticed that it is only in the case of a dispute of a particular kind that the Collector is directed to proceed to decide in accordance with certain principles mentioned therein. That dispute relates to "the class of tenure of any tenant. "On a natural reading of the words, this means that where the question is, who is the tenant, Section 42 has no application at all. "Given the tenant, the question must be, what is the class to which he belongs, or what is the nature of his tenure? The word 'tenure' is not defined in the Land Revenue Act, 1901. We have looked into Murray's New English Dictionary and we find the following meaning given in it : 'The conditions of service, etc., under which a tenement is held of a superior.' The 'class' shows whether a tenant is a fixed-rate tenant or an occupancy tenant or a non-occupancy tenant. The 'tenure' would indicate the terms under which a particular tenant holds land. It might be that he is holding under a service tenure or for a particular term of year or as a permanent lessee and so on. The scope of Section 42 therefore is very limited and is limited to the case of a dispute relating to class and tenure. We need not repeat that where the question is, who is the tenant, Section 42 has no relation to such a dispute. It is only in the case of a named tenant, that the question of his class or tenure would arise. It would be a mistake to read into Section 42 all the provisions of Section 95, Tenancy Act of 1901. Section 95, Tenancy Act, mentions six items, as to which a declaration may be obtained either by the landholder or by the tenant. Section 42 is confined probably to only two of these items. But, in any case, it excludes clause (a) which relates to 'the name and description of the tenant of the holding.' Clause (b) will come under the word 'class' under Section 42 and classes (c) to (f) may come under the word 'tenure,' namely, the conditions Of holding. But in no case clause (a), namely the name and description of the tenant, can come under the provisions of Section 42.
8. This being our opinion, on the scope of Section 42, assuming that the judgment was given under that section, it seems to follow clearly that the Assistant Collector's decision, namely the plaintiff's brother, or the plaintiff himself, was not entitled to the tenancy, cannot operate as res judicata in the present proceedings.
9. The pleadings of the parties which resulted in the order of the Land Record Officer, dated 3rd May 1918, are not before me. But from the order it is obvious that the tenancy was being denied at least by the zamindar and the previous history and subsequent history of the case also shows that Chandrika Prasad was throughout maintaining that he was in adverse possession of the property and was not a tenant at all. The factum of tenancy of Chandrika Prasad being itself in dispute, in my opinion Section 42, Land Revenue Act, did not apply to this case and the order of the Land Record Officer should be taken to be under Section 40, Land Revenue Act. But whether Section 40 applied or Section 42applied, I am quite clear that the order of the Land Record Officer was not final between the parties and it was open to challenge at the instance of both Bhagauti Prasad and Chandrika Prasad, in subsequent proceedings in the revenue Court, and I am further of opinion that it was not a legal effect of that order that a relation of landlord and tenant arose between Bhagauti Prasad and Chandrika Prasad as a result of which the nature of Chandrika Prasad's possession was changed and he was prevented from prescribing or setting out a hostile title to the property. If in fact after the order rent had been paid or the title of landlord acknowledged, different considerations might have arisen. But I am not prepared to hold that simply by reason of that order a tenancy arose in the eye of the law. An order of Court which might create or establish a tenancy must be an order of a competent Court, civil or revenue, which has power to decide the factum or existence of tenancy, as a matter of title between parties and not on the basis of possession alone. In my opinion the finding of the lower appellate Court as to adverse possession is justified and this appeal fails and is dismissed with costs. Leave to file Letters Patent appeal is refused.