JUDGMENT Walsh, J.
1. In this case a suit was brought for a declaration for possession in relation to a widow's claim to a fixed rate tenancy. The merits have not been decided. It is clear that some Court has jurisdiction to decide them. The District Judge says: "The plaintiff-appellant has of course, his remedy in the proper Court" but he does not say what it is; I presume he means the civil Court which having regard to the valuation, would be the Munsif. The Assistant Collector has set out the facts in his judgment. The record shows that evidence was taken and it is clear that he might, if he liked have disposed of the other issues; but he held that the suit was not triable by the revenue Court and, adding that it was no use his trying the other issues, he dismissed the suit with costs. The District Judge upheld this decision and dismissed the appeal, and therefore the suit with costs, holding that the plaintiff had his remedy in the proper Court.
2. To my mind, the District Judge made a mistake in law. Indeed I think revision might have lain against his decision because he seems to have denied himself jurisdiction, but anyhow he neglected to apply the provisions of Section 197 of the Tenancy Act. Section 197 must be read with Section 196. The two together provide a Code for the conduct of the appellate Court where there is a question of jurisdiction and either a civil suit which ought to have been brought in the revenue Court or a revenue suit which ought to have been brought in the civil Court comes up by way of appeal before the District Judge and there has been in the first Court an objection to the jurisdiction. I am unable to understand why the learned Judge did not apply Section 197. I have been referred to a dictum of Mr. Justice Daniels on page 86 of 24 A.L.J. [Bisheshar Prasad Pandey v. Raghubir] that both these Sections 196 and 197 assume that the trial Court has entertained the suit and disposed of it on the merits. I can only say that I am unable to find the slightest justification for this opinion in the section itself. Take Sub-section 1; if we consider it in the light of the present case in which there has been no decision on the merits it seems to be exactly applicable. If in a suit brought in the revenue Court which ought to have been brought in the civil Court, objection to jurisdiction is taken in the Court of first instance, and the appellate Court has before it all the materials necessary for the determination of the suit, it shall dispose of the appeal as if the suit had been instituted in the right Court. In this case objection was taken in the first Court and upheld. The appellate Court agreed with the objection and it had before it all the materials necessary for the determination of the suit if it had been a suit brought in the Munsif's Court. It seems to me that this section makes it its duty to dispose of the appeal as if the suit had been instituted in the Munsif's Court,
3. Mr. Harnandan Prasad for the plaintiff-appellant draws my attention to a provision in Sub-section 2 which to my mind enforces that view. It may be that after taking some of the evidence, without concluding the whole hearing the first Court comes to the conclusion that it has no jurisdiction and dismisses the suit on that ground and the appellate Court upholds that view. The result of that is that it has not before it all the materials. It therefore cannot dispose of the appeal in the way indicated in Sub-section 1. Suppose for a moment that it overrules the first Court having disagreed with the first Court on a preliminary objection it may undoubtedly remand the case under Order 41, Rule 23, or if it prefers and cannot dispose of all the issues which remain outstanding, it can refer issues under Order 41, Rule 25. In the peculiar circumstance contemplated by this legislation namely Sections 196 and 197, it is authorized to make an order either that the Court in which the suit is instituted should hear the remand and decide the issues referred or that the Court in which the suit ought to have been brought should do so. With great respect to the opinion to which I am referred, this seems to me to contemplate a case in which there has been no decision on the merits, in both alternatives namely, a Court in which the suit has been properly instituted and the objection is overruled by the appellate Court or a Court in which the suit has been improperly instituted and again the objection is overruled in the appellate Court. In the former case its may return it to the original Court; in the latter case it may return it to the Court in which it should have been tried. In this case, for example, all the facts were not on the record; the District Judge might have sent it back either to the Assistant Collector or what would have been better, could have sent it to the Munsif's Court in which it ought to have been brought. But as the materials are all on the record, in my opinion he ought to have heard the appeal on the merits and disposed of it.
4. I have considered very carefully whether I ought to consider myself bound by the dictum relied upon to which I have been referred on page 86 of 24 A.L.J. The case is Bisheshar Prasad Pandey v. Raghubir AIR 1926 All 58 decided by a two Judges Bench of this Court in revision, The dictum in question has been put into the head-note. Why I am unable to understand, because it was a reason given for refusing to exercise revision, whereas the case is reported for a decision in favour of the exercise of revision. What that case decided was that in the peculiar circumstances of the case following a five-Judge decision in Badam-Kuar v. Dinu Rai (1886) 8 All 111 revision lay, I am of opinion that the question under Sections 198 and 197 of the Tenancy Act was not necessary for the purpose of the disposal of that case, and that therefore the dictum to which I am referred is not binding upon me and I am free to take my own view. I therefore allow the appeal and remand the case to the lower appellate Court to dispose of the appeal on the merits. The appellants must have their costs of this appeal on the higher scale. The costs of the suit and the proceedings in the lower appellate Court will abide the result.