JUDGMENT Henry Richards, C.J.
1. This Letters Patent Appeal arises out of a suit in which the plaintiffs sought to recover possession of certain immoveable property, treating the defendant as a trespasser. The facts, so far as I consider them material, are as follows: Prior to the institution of the present suit, the plaintiffs brought a suit in the Revenue Court seeking to eject the defendant as their sub-tenant. They claimed that they were the occupancy-tenants and that the defendant was their subtenant. The plea put in by the defendant was that he was not a sub-tenant but the occupancy-tenant of the holding. The Assistant Collector was of opinion that the defendant was, as he alleged, the occupancy-tenant. In other words, he held that the relation of landlord and tenant did not exist between the plaintiffs and the defendant. As a result of this finding, the suit for ejectment in the Revenue Court necessarily failed. There was an appeal to the Commissioner, who held for other reasons that the ejectment suit brought by the plaintiffs failed. The plaintiffs then instituted the present suit to get possession of the property. The question, of course, upon which the success or failure of the suit depended, was whether or not the defendant was the occupancy-tenant. The learned Munsif decided in his favour. On appeal, the learned Subordinate Judge confirmed the decision of the Munsif. On second appeal to this Court, a learned Judge held that the present suit was not cognizable by the Civil Court and on that ground allowed the appeal and dismissed the plaintiff's suit.
2. It seems to me that the question of title to a tenancy, arising between rival claimants to that tenancy, is a question which is cognizable by a Civil Court. This has been decided, I think, in principle in the case of Zubeda Bibi v. Sheo Charan 22 A. 83 in the case of Hamid Ali Shah v. Wilayat Ali 22 A. 93 and in the case of Bhup v. Ram Lal 33 A. 795; 8 A.L.J. 1009 : 11 Ind. Cas. 26833 A. 795 : 8 A.L.J. 1009 : 11 Ind. Cas. 268. The learned Judge of this Court says: "Before I can hold that the defendant, who admittedly was till recently a tenant of some kind, has become a trespasser, I must hold that he was wrong in claiming to be an occupancy-tenant of the land. I cannot decide that he was wrong in claiming to be an occupancy-tenant without trenching on the jurisdiction of the Rent Court. The question whether a person is a tenant at-will or an occupancy-tenant is one in respect of which a suit can be brought under the Tenancy Act and the decision is reserved exclusively for the Revenue Court". I cannot altogether agree with what the learned Judge has stated above. It is quite true that if a person was claiming to be an occupancy-tenant, whilst his landlord was contending that he was a mere tenant-at-will, this would be a question exclusively triable by the Revenue Court. But that is not the question in the present suit. The question in the present suit is,--"to whom does the tenancy belong; does it belong to the plaintiffs or to the defendant?" If the tenancy belongs to the plaintiffs, then they are clearly entitled to treat the defendant as a trespasser, having regard to the plea that he put forward in the Revenue Court in which he to tally denied their title and claimed that he alone was the occupancy-tenant. If on the other hand, the tenancy belongs to the defendant, it is quite clear that the plaintiffs' suit must be dismissed. It has been contended that the present suit is of the nature mentioned in Section 95 of the Tenancy Act, In my opinion, it is only necessary to read the opening words of that section to see that the section deals with questions arising between landlord and tenant and that it does not in any way apply to rival claimants to any of the various classes of tenants mentioned in the Tenancy Act.
3. I, therefore, would allow the appeal as no other question arises.
Banerji, J.
4. I am also of opinion that the jurisdiction of Civil Court was not excluded by reason of the provisions of the Tenancy Act. The suit in this case would be cognizable by the Civil Court unless it came within the purview of any of the clauses of Section 95 of that Act. I adhere to the view, expressed in the case of Bhup v. Ram Lal 33 A. 795 : 8 A.L.J. 1009 : 11 Ind. Cas. 268 that where a dispute arises between rival claimants to a tenancy, that is not a matter which can be determined under Section 95. In the present case, the dispute is between persons who claimed to be entitled to the tenancy. There is no question as between either of them and the landlord. The plaintiffs allege that the defendant is a trespasser and they claim to eject him as such. Such a suit could not be brought in the Revenue Court and the only Court which could take cognizance of it is the Civil Court. It is true that the plaintiffs sued in the Revenue Court to eject the defendant on the allegation that the defendant was their sub-tenant. Had the Revenue Court decided that question and had held that the defendant was the tenant of the holding, there might have been some difficulty in the plaintiffs' way but in this case, as pointed out by the lower Appellate Court, the Commissioner did not determine the question whether the plaintiffs were the tenants of the holding or the defendant was so. He dismissed the plaintiff's suit by reason of a defect in the frame of the suit. So that the question, "who is the tenant of the holding", remained undecided by the Revenue Court. As both parties claimed to be tenants, the question was one between rival claimants to the tenancy and it could not be taken into the Revenue Court in any of the forms of suits mentioned in Section 95 of the Tenancy Act. The Civil Court, therefore, had jurisdiction to hear the case. On the merits, that Court found in favour of the plaintiffs. They were, therefore, entitled to the decree which was granted by the Courts below and this appeal must prevail.
5. The order of the Court is that we allow the appeal, set aside the decree of the learned Judge of this Court, and restore the decree of the lower Appellate Court with costs of both hearings in this Court.