JUDGMENT Daniels, J.
1. In these three connected appeals, No. 344, 345 and 346, there are 279 respondents. It is therefore undesirable even in the interest of the appellants that notice should issue unless there is some chance of the appeals succeeding. In my opinion the decision of the Court below is right and the appeals cannot succeed.
2. The appellants are two of the defendants. The land is cultivated tal land in the Ballia district. There have been disputes about it for a long time. According to the Munsif's judgment there was a former case under Section 145, Criminal P.C., followed by a civil suit in which the plaintiffs got a decree against the zemindars of Mairi Tar. More recently there was a case under Section 145 against the tenants of Mairi Tar. The latter got an order affirming their possession. The plaintiffs filed a civil suit. The defendants claimed to be tenants of the plaintiffs and were referred to the Revenue Court under Section 202, Tenancy Act. The revenue Courts decided against them right up to the Board of Revenue. In the meantime, the civil Court in the absence of the parties dismissed the civil suit without waiting to be informed of the orders of the revenue Court. This dismissal under Order 9, Rule 4, did not bar a fresh suit. The plaintiffs then filed the present suit for ejectment under Section 58 read with Section 34, Tenancy Act and have got a decree from both the Courts below. On its first institution the suit was dismissed by the lower appellate Court on the ground that it was not maintainable in view of the dismissal of the civil suit. The plaintiffs went up to this Court in appeal and got a decision in their favour that the suit is maintainable. The suit was remanded for decision on the merits. Two pleas are pressed before me. First, that though the dismissal of the civil suit did not bar a fresh suit, yet the two remedies provided by Order 9, Rule 4, namely, a fresh suit, or an application for restoration, are mutually exclusive and therefore as the plaintiffs unsuccessfully applied for restoration, they cannot bring a separate suit.
3. This is a matter which ought to have been put forward on the previous appeal to this Court. The defendants' case being that the suit was not maintainable they ought to have put forward all grounds of attack on which they could base this plea, but apart from this it has been held in Daya Shankar v. Raj Kumar AIR 1917 Oudh 62 that the two remedies are not mutually exclusive, and with this decision I agree. Secondly, and this is the main plea, it is urged that the defendants have been cultivating the land for more than twelve years, and therefore, Section 34 is not applicable. Assuming the facts to be as stated, there is no force in this plea. The argument is that if the defendants have been cultivating for over twelve years, they must have acquired either adverse title or occupancy rights. This proposition is unsound. No question of adverse possession can arise in view of the fact that the defendants have never set up any adverse title. On the contrary their position in all the litigation which has taken place has been that they were the tenants of the plaintiffs. This has been found against them. Their claim to occupancy rights is negatived by the express language of Section 34, Tenancy Act. The finding of facts is that they have occupied without the consent of the landholder and have not paid rent. Section 34 says that in such a case the occupier shall not be deemed to occupy the land for the purpose of acquiring occupancy rights until he begins to pay rent therefor.
4. The decision of the Court below is therefore correct, and I dismiss the appeals under Order 41, Rule 11, Civil P.C.