JUDGMENT Mukerji, J.
1. The facts of this case are a little complicated and will have to be stated at some length in order to appreciate the points that arise for decision in second appeal. The plaintiffs who were minors, instituted the suit out' of which j this appeal has arisen, on 22nd December 1924, for ejectment of defendants 1 to 4. Their case was that they were occupancy f tenants of the lands in suit and the defendants 1 to 4, who were cosharers in the village, but who were not the entire body of cosharers, ejected them from the lands in suit on 25th June 1924.
2. The suit was met by a number of objections. The first Court dismissed the suit and the second Court affirmed the decision. The ground on which the lower appellate Court affirmed the decree of the first Court was that a certain order or supposed order of the Assistant Collector made in pursuance of an application of the plaintiff's mother, defendant 5, was a bar to the maintenance of the suit. We shall have occasion to state the facts relating to that application at length later on.
3. In this Court it is contended for the plaintiffs-appellants that the learned Judge of the Court below was wrong in his opinion that the plaintiffs' right of occupancy is no longer subsisting.
4. It appears that the plaintiffs' father, Baldeo Lohar, was an occupancy tenant of the lands. He mortgaged the lands in suit, which are four in number, on 5th October 1893, for a period of 21 years in favour of two of the cosharers of the village, viz., Fakir Husain and Safdar Husain. The term of the mortgage expired in 1914. In that year, there was a dispute between the mortgagee E&kir Husain and Mt. Sadika Bibi, the widow of Safdar Husain, as to who was to hold the lands which had been mortgaged in the year 1893. Mt. Sadika Bibi claimed that the lands were her khudkasht and Fakir Husain maintained that both she and he held the lands as mortgagees. The Tah-sildar however by an order, dated 1st October 1914, directed that the name of Baldeo Lohar should be expunged from the revenue records and the lands should be recorded as the khudkasht of Mt. Sadika Bibi. Later on, both Sadika Bibi and Fakir Husain, on account of a compromise between themselves, remained in possession of the lands in suit.
5. Baldeo made a mortgage of these lands, in 1916 in favour of one Durga Charan, but could not give Durga Charan possession, because the lands were in the occupancy of the previous mortgagees. Baldeo accordingly instituted a suit for redemption against the former mortgagees and their successors-in-title. The suit, was decreed on condition of payment of a small sum of money which was paid. Formal delivery of possession was made to Baldeo on 15th June 1919.
6. Baldeo died during the pendency of the redemption suit and his sons, the present plaintiffs, were substituted in his place. The plaintiffs, in spite of formal delivery of possession, could not obtain it and they instituted two suits. One was a suit under Section 95, Tenancy Act, 1901, and later they filed the suit out of which the present appeal has arisen.
7. The suit under Section 95, Tenancy Act, was unsuccessful throughout. The first Court framed four issues. Issue 2 was whether the plaintiffs were occupancy tenants. Issue 4 was whether the defendants held the lands in suit as their khudfeasht. The Assistant Collector came to the conclusion that the plaintiff's right of occupancy had come to an end and the defendants held the land as their khudkasht. There was an appeal to the District Judge and the judgment was affirmed. On second appeal a learned Judge of this Court affirmed the decision of the District Judge. The learned Judge found himself bound by the finding of the District Judge on facts and he also held that the plaintiff's suit was barred because they had been out of possession for more than six months. A Letters Patent appeal was filed and it was pending when the Court below gave its decision in the present litigation.
8. The judgment in the Letters Patent appeal has been laid before us and it shows that the only ground on which the plaintiff's suit was dismissed by the Bench hearing the Letters Patent appeal was that the plaintiffs were out of possession at the date of the institution of the suit and therefore it was not open to them to ask for a declaration of title. We have to consider what is the effect of this judgment on the rights of the parties.
9. Now we come to consider the facts which have been held to be a bar to the maintenance of the present suit by the plaintiffs.
10. It appears that on 4th July 1921, Mt. Munia, defendant 5, the mother of the plaintiffs, made an application to the Tahsildar that the village records should be corrected and the names of her sons should be entered in place of the names of the defendants who were shown as holding the lands as their khudkasht. The defendants contended that the Tahsildar had no jurisdiction in the matter and there was an appeal to the Collector. The Collector directed that the matter should be taken up under Section 42, Land Revenue Act, and should be determined by an Assistant Collector of the First Class. When the matter went before an Assistant Collector of the First Class on 6th January 1922, Mt. Munia made an application that she did not want to pursue her application because the lands had been abandoned. The Assistant Collector thereupon passed no orders beyond saying that the papers should be filed. In this appeal we have to consider the effect of this order of the Assistant Collector and also the effect of the litigation under Section 95, Tenancy Act.
11. We shall take the second point first because if that judgment has any bearing on the present case, the decision of this case will have to be guided by that judgment.
12. We have already pointed out that the Letters Patent Bench dismissed the plaintiffs' suit on the sole ground that the plaintiffs were out of possession at the date of the institution of the suit and that therefore they were not entitled to maintain a suit for declaration of title. In our opinion the result of that decision is that other decisions in the case in the High Court and Court below, throughout the litigation, were wiped out and the ultimate ground on which the plaintiff's suit stood dismissed was the ground on which the judgment of the Letters Patent appeal proceeded.
13. It was argued on behalf of the respondents that the judgment of the Assistant Collector in the suit under Section 95, Tenancy Act, was the final judgment because no appeal lay to the District Judge and therefore no appeal lay to the High Court. The argument is based on Section 177, Tenancy Act, 1901. On behalf of the appellants it was pointed out that the Full Bench decision of this Court, namely Bindeshri v. Gokul A.I.R. 1914 All. 324, made the decree appealable to the District Judge because the defence, was that the defendants were the owners in possession of the lands as their khudkasht. The case is covered by the Full Bench ruling. It is, worth mentioning that no question of jurisdiction was raised before the District Judge or even in the High Court. We now come to the question of the effect of the application of defendant 5 and her application for withdrawal. The lower appellate Court is of opinion that the result of the withdrawal application by Mt. Munia was that there was a decision against her sons to the effect that they were no longer occupancy tenants of the lands in suit and that the order had all the effect of a judgment under Section 42, Land Revenue Act, 1901.
14. We are unable to accept this view. To start with, assuming that there was an application under Section 42, Land Revenue Act, by Mt. Munia for a determination of the class or tenure of her sons' tenancy, there was no decision at all arrived at. The dismissal of her application at her own request could not amount to a finding that her sons were no tenants at all or that they were tenants of any particular class. A decision like that could not be made by pure implication. Secondly, Section 42 seems to apply to a case where there is admittedly a tenant, and the dispute relates only to his class or to the terms of his tenure. This was the opinion expressed by the Division Bench case of Kashi Prasad v. Ambika Prasad A.I.R. 1930 All. 611. We are therefore of opinion that the importance given to the order of the Assistant Collector by the learned Judge of the Court below was displaced.
15. The result is there is no bar to the success of the plaintiffs.
16. The plaintiffs are the tenants of the lands in dispute. They had not been ousted by the whole body of the proprietors. Defendants 1 to 4 are only some of the proprietors and any dispossession of the plaintiff by them cannot be treated as a dispossession of a tenant by the landholder. The suit is cognizable by the civil Court and is governed by the 12 years' rule of limitation. The suit is therefore entitled to succeed. We allow the appeal, set aside the decrees of the Courts below and give the plaintiffs a decree for possession, and a decree for mesne profits to the amount of Rs. 33, the sum agreed upon by the parties in the Court of first instance: see p. 15 of the paper book. The plaintiffs will have their costs of this litigation throughout. The costs in this Court will include counsel's fees on the higher scale.