JUDGMENT Daniels, J.
1. This revision involves an important question as to the application of Section 115 of the Code of Civil Procedure. The applicant was plaintiff in the trial Court. He had given a perpetual lease of Bs. 31-8-18 biswansis of land to two of his servants on a rent of Rs. 17-1 a year. He subsequently gave a theka of his zamindari share to the second defendant Indrasan Singh giving him the right to realize the rent from the perpetual lessees. After the theka had been given the perpetual lessees relinquished their lease. According to the plaintiff, the first defendant Raghubir Singh, who is the father of Indrasan Singh the second defendant, obtained unlawful possession of the 34 bighas odd of land. The plaintiff asserts that on the relinquishment by the perpetual lessees he himself became entitled to actual possession of the 34 bighas held by them. He therefore brought the present suit for the ejectment of Raghubir Singh as a trespasser, and for mesne profits and rent for three years. In the alternative, in case his first and second reliefs were refused, he asked for a declaration that he and not the second defendant, was entitled to realize rent from Raghubir Singh in respect of this area, and also claimed a sum of Rs. 999 against the second defendant. This was the same amount which in his earlier relief he had claimed against Raghubir Singh. Apparently it consists partly of rent realized by the second defendant from Raghubir Singh and partly of damages. It must be mentioned here that the plaintiff had previously sued Raghubir Singh in the revenue Court treating him as tenant. Raghubir Singh pleaded that he was the sub-tenant of his son Indrasan Singh and had paid the rent to the latter in good faith. The revenue Court decided the suit on the issue of payment in good faith under Section 198, and, holding that the rent had been paid in good faith as alleged dismissed the plaintiff's suit, and directed him to establish his rights in the civil Court. The plaintiff's position in the present suit is that, in the first place, Raghubir Singh is a trespasser, pure and simple, but that even if this is not the case, and he is to any extent the sub-tenant of the second defendant, the latter is only entitled to realize from him the same rent which he could have realized from the perpetual lessees, namely Rs. 17-1, and that the balance of the rent is payable to the plaintiff. The entire rent of the holding of 34 bighas is admittedly Rs. 88.
2. The suit was filed in the Court of the Subordinate Judge. The defendants resisted the claim on the merits, and also pleaded that it was not cognizable by the civil Court. The Subordinate Judge adopted a curious course. He framed and decided issues on the merits. Having decided these, he proceeded to direct the plaint to be returned on the ground that he had no jurisdiction. This order has been upheld by the learned District Judge on appeal. The Subordinate Judge held that the defendant was, in fact, a tenant and not a trespasser, having been let into possession of the land by the plaintiff's father. This was a decision on the merits. The Subordinate Judge did not hold that on the facts alleged in the plaint he had no jurisdiction. He held that the case set out in the plaint was untrue in fact. On this finding he ought to have dismissed the suit on the merits, instead of returning the plaint under Order 7, Rule 10 of the Code of Civil Procedure. The Subordinate Judge committed another error. In their written pleadings the defendants took the position that Raghubir Singh was the sub-tenant of his son, the second defendant. In the course of a subsequent oral pleading under Order 10, Rule 1, the second defendant set up the case that Raghubir Singh was the tenant of the plaintiff himself, having been admitted to the occupation of the holding by the plaintiff's father. Raghubir Singh himself was not examined. If this was the position taken up by Raghubir Singh, as it appears to have been, Section 202 of the Tenancy Act was applicable, and the Subordinate Judge ought to have directed Raghubir Singh to file a suit in the revenue Court to establish the alleged tenancy. It may be that some of the reliefs claimed in the suit are such as could only have been decreed by a decree of a revenue Court, but it is quite clear that the main relief asked for, namely the ejectment of Raghubir Singh as a trespasser, was cognizable by the civil Court. In view of the decision under Section 198 of the Tenancy Act the plaintiff was also entitled to ask the civil Court for a declaration that he, and not the second defendant, was entitled to realize rent from Raghubir Singh. On the merits therefore it is clear that the Courts below were in error in directing the plaint to be returned, and that the Subordinate Judge, in refusing to try the suit, failed to exercise a jurisdiction vested in him by law.
3. The respondents raise a preliminary objection that no revision lies. They claim that however wrong the order of the Subordinate Judge may have been, his decision has been superseded by the appellate decree of the District Judge. The District Judge had jurisdiction to decide the appeal, and did decide it, and whether his decision is right or wrong on the merits, he cannot be said to have failed to exercise a jurisdiction vested in him by law or to have acted irregularly in the exercise of his jurisdiction.
4. The plaintiff contests this position on three grounds. He argues: (1) that the District Judge in upholding the erroneous order of the Subordinate Judge failed to exercise jurisdiction he should have exercised, because he did not direct the Subordinate Judge to try the suit on the merits; (2) that Section 197 of the Tenancy Act applies and that the District Judge should have remanded the case under that section to any Court competent to entertain it; in this view the District Judge failed to exercise a jurisdiction he should have exercised; (3) that notwithstanding the appeal this Court has power to revise the Subordinate Judge's order.
5. The first contention, though it derives some support from the judgment of Mukerji, J., in Ganeshi Lal v. Debi Das AIR 1925 All 267, is in our opinion untenable. We fail to see how it can possibly be said; that the District Judge failed to exercise the jurisdiction vested in him. His jurisdiction was confined to deciding the appeal under Order 43, Rule 1(a), Civil P.C. He had only two courses open to him. If he had held that the suit was really cognizable by the civil Court, he would have set aside the Subordinate Judge's order and directed the latter to try the suit on the merits. Holding as he did, that the Subordinate Judge's view was right, he was bound to dismiss the appeal. In either case he exercised the jurisdiction vested in him by law, and there is no case for revision. We think that the remarks of the Privy Council in Bal Krishna Udayar v. Vasudeva Ayyar AIR 1917 PC 71 were misunderstood in Behari Lal v. Baldeo Narain AIR 1918 All 422, one of the judgments which have been cited to us. Their Lordships said that Section 115 was not directed to conclusions of law or fact in which the question of jurisdiction was not involved. In this passage they were speaking of a question of jurisdiction with reference to the provisions of the section they were discussing. In an earlier portion of the same judgment they had said:
It will be observed that the section applies to jurisdiction alone: the irregular exercise or non-exercise of it, or the illegal assumption of it.
6. They refer in fact to the case in which a Court, owing to erroneous view of the law, takes cognizance of a case outside its jurisdiction, or refuses to try a suit or appeal which is within its jurisdiction. They do not apply where a Court in the exercise of the jurisdiction vested in it upholds or reverses a decision of an inferior Court on an issue whether the inferior Court had jurisdiction. We have reluctantly come to the conclusion that the applicant's second contention is also untenable. We say "reluctantly" because if we could hold that Section 197 applied, it would go a long way to prevent these difficult questions of jurisdiction arising. Sections 196 and 197 must be read together. They both deal with a case in which an objection is taken in the appellate Court that the suit was wrongly instituted in the Court below instead of in a civil or Revenue Court as the case may be. Section 196 tells the appellate Court what to do if the objection was not raised in the trial Court. Section 197 tells it what to do if the objection had been raised. Both sections assume that the trial Court has entertained the suit and disposed of it on the merits. It is only in such a case that the Court could remand the suit or frame issues or direct additional evidence to be taken as contemplated by Sub-section (2). Where the appeal is against an order returning the plaint the appellate Court, if it agrees with the trial Court, merely affirms its order and, if it differs from the trial Court, directs such Court to restore the case to the file and dispose of it on the merits. Moreover, in the case of an appeal against an order returning the plaint, the appellant's objection is not that the case was instituted in the wrong Court, but that it was instituted in the right Court. The Tenancy Act makes elaborate provisions for the case where the suit is wrongly entertained by a civil or Revenue Court on the merits, but fails to provide for the case where either or both Courts wrongly refused to exercise jurisdiction. We commend this point for the notice of the Legislature in connexion with the revision of the Tenancy Act which we understand to be in contemplation.
7. If the applicant's third contention were res integra we might have felt considerable difficulty regarding it. Section 115 confers revisional jurisdiction on the High Court in cases in which no appeal lies to that Court. Its jurisdiction is not excluded by the fact that an appeal might lie to a subordinate Court. The difficulty arises from the principle, which has been affirmed in a large number of decisions, that where an appeal has been preferred and decided, the order or decree of the trial Court is merged in that of the appellate Court and no longer subsists. This principle was affirmed, with reference to amendment of the trial Court's decree, in the Fall Bench decision of Muhammad Sulaiman Khan v. Muhammad Yar Khan [1899] 11 All 267 (F B), with reference to the passing of a final decree in Gajadhar Singh v. Kishan Jiwan Lal AIR 1917 All 163, and with reference to limitation in Rup Narain v. Sheo Prakash AIR 1921 All 134, and there are many other decisions to the same effect. It is certainly anomalous that it should be open to us to review the order of the Subordinate Judge when that order has been superseded by an appellate order which is not open to revision. The matter is however concluded by the Full Bench decision in Badami Kunwar v. Dilu Rai [1886] 8 All 111. That was a decision of a Bench of five Judges with reference to Section 622 of the Civil Procedure Code of 1882, which is substantially identical with Section 115 of the present Code. It is pointed out by the respondents that nothing is said in any of the five judgments as to the effect of the trial Court's order having been superseded by that of the appellate Court. This is true, but it cannot be said that the point was overlooked. The referring order, which is printed on page 113 of the report, expressly mentions that the Munsif's order has been upheld by the Judge in appeal; and Straight, J., in the illustration which he gives on page 115, refers to the fact that an appeal would lie to the Judge though there would be no second appeal to the High Court. The Full Bench decision was followed in recent years in Chandu Lal v. Kokamal AIR 1921 All 226 and again in Ganeshi Lal v. Debi Das AIR 1925 All 267. The order of the Munsif having been set aside the appellate order of the District Judge must necessarily fall to the ground with it.
8. We are glad to be able to hold in this case that a revision does lie because the effect of the contrary view might be to leave the plaintiff without a remedy. If he filed his suit in the revenue Court, that Court might well hold that it had no jurisdiction to entertain it. This Court would have no power to revise that order.
9. A revision would lie to the Board of Revenue, and if the Board of Revenue upheld the view of the trial Court, the result would be to leave the plaintiff without any means of redress.
10. For the reasons already given we allow the application with costs, including in this Court fees on the higher scale, and direct the Subordinate Judge to restore the case to his file and dispose of it on the merits.