JUDGMENT Henry Richards, C.J.
1. This and the connected appeal arise out of suits in which the plaintiff's sought a declaration that no custom existed in their village which entitled zamindars to take certain fruits and wood, or a right to the use of a plough and a number of other alleged dues, including sugarcane juice from some of the tenants, poppy seed from the Koeries, and various other matters of the same description. The suit was instituted in the court of the Subordinate Judge of Azamgarh. He decided that the suit was not cognizable in a civil court and he declined to return the plaint for presentation in the proper court. The learned District Judge in first appeal affirmed the decision of the Subordinate Judge and dismissed the plaintiffs' suit. The plaintiffs come here in second appeal.
2. I think that the question whether or not the villagers are liable to these dues is a question of very great importance, no matter what is the proper tribunal to decide it. However, all that we have to decide in the present appeal is whether or not the suit is cognizable by a civil court.
3. In my opinion the suit was cognizable in the civil court. Prima facie the civil court is the court to decide all cases of a civil nature. Only cases which by express enactment are withdrawn from the cognizance of the civil court are not triable by that court. It is argued that Section 95 read with Section 167 excludes the present suit from the cognizance of the civil court. Section 167 provides that the suits specified in the fourth schedule shall only be cognizable in the revenue court: included in the fourth schedule are the suits specified in Section 95. Section 95 provides that at any time during the continuance of the tenancy either the landholder or the tenant may sue for a declaration as to any matters there mentioned. Amongst these matters is the rent payable in respect of a holding and whether it is payable in cash or in kind. It is argued that this suit is a suit as to the rent payable for the holding, and whether it is payable in cash or kind. Reliance is also placed upon Section 233, Clause (i), of the Land Revenue Act, which provides that no suit shall be instituted in the civil court by a tenant in respect of the rent payable by him.
4. It seems to me that rent in both Section 95, Clause (d), of the Tenancy Act, and Section 233, Clause (i), of the Land Revenue Act, refers to the ordinary conventional or contractual rent payable by a tenant for his holding. No doubt the definition of rent in Section 4 of the Tenancy Act is wide. It is there defined as being whatever in cash or kind is to be paid or delivered by a tenant for land held by him or on account of groves, tanks, et cetera. Notwithstanding this definition, it seems to rue that the plaintiff's in the present case cannot, in truth, be said to be suing in respect of a matter relating to the rent payable in respect of their holding. The claim of the zamindars which the plaintiff's seek to resist in the present case is it seems to me, a claim based on custom, the zamindars claiming by right of custom to be entitled to certain cesses or dues. These dues to some extent are claimed, no doubt, by reason of the fact that the plaintiffs are tenants, and to this limited extent it may be argued that they are payable in respect of their holdings. It is extremely difficult to see how fulfilment of some of these customary rights could be enforced in the revenue court. One custom is the giving to the zamindars the use of a plough. If the tenant refused, it seems to me that the zamindar's only right would be to sue for damages, and such a suit could only be brought in the civil court. Again, it would be impossible for the zamindar to enforce the delivery of the sugarcane juice, if, by chance, the tenant did not grow any sugarcane, and accordingly the value of the sugarcane juice would have to be assessed and sued for as damages. I may mention that the wajib-ul-arz, which is the basis of the claim of the zamindars, particularly specifies some of the items as being cesses referred to in Section 56 of the Land Revenue Act. That Section is as follows:
In the North-Western provinces all cesses which are payable by tenants on account of the occupation of land and which are of the nature of rent payable in addition to the rent of tenants, or in lieu of which property rights may be assigned under Section 78, Clause (b) shall be recorded by the record officer under the appellations by which they are known, and no cesees not so recorded shall he recoverable in any civil or revenue court.
5. In the Land Revenue Act it is expressly provided that the term rent is to have the same meaning as it has in the Tenancy Act. It is quite clear that this section draws a distinction between rent and payments in the nature of rent. These latter payments are not "rent." In the words of the section itself they are payments which have to be made in addition to the "rent" It seems to me that there is no provision in either the Land Revenue Act or the Tenancy Act which excludes from the cognizance of the civil court a suit for a declaration that no custom exists in the village which renders the plaintiffs liable to the payment of these dues.
6. The plaintiffs also sue to have the entry as to these alleged dues declared null and void as against them, on the ground that they were entered in the wajib-ul-arz behind their back and without their having a proper opportunity of showing that no such custom existed. If these allegations are correct, it seems to me not at all unreasonable that the plaintiffs should have a declaration to the effect that the entries are not binding on them.
7. I would allow the appeal and remand the suit for trial on the merits.
Banerji, J.
8. I also am of opinion that the suit brought by the plaintiffs was not excluded from the cognizance of the civil court. Section 167 of the Agra Tenancy Act provides that no court other than the revenue court shall take cognizance of any dispute or matter in respect of which any suit or application of the nature specified in the fourth schedule to the Act might be brought or made. Therefore, unless the suit is of the nature mentioned in the schedule, its cognizance by the civil court is not forbidden by the Section. The plaintiffs' claim may be taken to be a claim for a declaration that they are not liable to pay the amounts or deliver the articles mentioned in the wajib-ul-arz of the village, which the defendants (zamindars) claim from thorn. Unless these payments can be brought within the meaning of the word "rent" as used in Section 95, Clause (d), of the Act, the suit would be cognizable by the civil court. Clause (d) of Section 95 provides that a landholder or a tenant may sue for a declaration as to the rent payable in respect of the holding of a tenant. The word "rent" is defined in Section 4, Clause (iii), as meaning "whatever is in cash or in kind to be paid or delivered by a tenant for land held by him." The remainder of the definition is inapplicable to the present case. Now "land" as defined in the Act means "land which is let or held for agricultural purposes" The amounts which the defendants claim as payable by the plaintiffs and the articles which they say the plaintiffs must deliver to them are not payable or deliverable in respect of land which is held for agricultural purposes. Therefore the matter to which the suit relates cannot be deemed to be rent within the meaning of the Agra Tenancy Act. In my opinion the rent mentioned in Clause (d) of Section 95 is rent payable in respect of an agricultural holding and cannot apply to what is payable in addition to rent, such as is referred to in Section 56 of the Land Revenue Act. Therefore there is nothing in the Agra Tenancy Act which makes a suit like the present cognizable by a revenue court. As rent has the same meaning in the Land Revenue Act as it bears in the Agra Tenancy Act, Section 233, Clause (i), of the Land Revenue Act does not apply to a case of this kind. The suit not being cognizable by a revenue court, the only court which can take cognizance of it is the civil court, and the courts below ought to have tried it on the merits. I agree in the order proposed.
Tudball, J.
9. I also agree in the order proposed. To my mind it is quite clear that the present suit cannot be said to be one for a declaration as to the rent payable by the plaintiff's in respect of their holdings. It is unnecessary to go into details. Many of the items are such that they could clearly be only recovered in a civil court; for example, the claim of Rs. 1, which, it is said, a tenant of the village pays to the zamindar when he sets up a sugarcane press in the village to press his own cane. This cannot by any possible stretch of the meaning of ordinary language be said to be part and parcel of the rent. It is a claim entirely independent of the holding and in no way concerned with it. It is an item to recover which the zamindar would have to sue in the civil court, and in the civil court alone. Section 56 of the Land Revenue Act also to my mind is quite clear; the claims made by the zamindars thereunder are claims made over and above the rent that is payable in respect of the holding. In this view I have not the slightest hesitation in holding that the present suit was cognizable by the civil court.
10. The order of the court is that the appeal is allowed, the decrees of the courts below are set aside, and the case is remanded to the court of first instance through the lower appellate court, with directions to readmit it under its original number in the register and proceed to hear and determine the same according to law. The appellants will have their costs in this Court and in the court below. Other costs will abide the result.