( 1 ) THIS is a defendants appeal arising out of a suit for possession. The suit was instituted in the revenue Court under Section 180, D. P. Tenancy Act. The plaintiff alleged that on 4-7-1928, he mortgaged his tenancy plots with Ajodhia Singh, defendant 1, and placed him in possession, that srimati Ram Pati, defendant 2, was wife of Ajodhia Singh and her name recorded in the revenue papers without any right, that the mortgage money had been paid up from the usufruct of the land in suit, that the plaintiff approached the mortgagee in July, 1949, with the mortgage consideration for redemption of the land in suit, but that the defendant refused either to accept the money or to redeem the land in suit. The plaintiff, therefore, prayed that a decree for possession may be passed against the defendants and damages as allowed by law may also be awarded to him. Defendant 2 did not put up any defence. The salt was contested by defendant 1 alone. He pleaded that he was not a mortgagee of the plots in suit because no mortgage was ever executed, that he was himself the tenant of the land and that in any case he had perfected his right to possession as a hereditary tenant by virtue of having been in possession of the plots in suit for more than three years and that the suit was barred by limitation. One further plea was raised by him. It was worded in these terms: That the suit in the present form was defective and the Court had no jurisdiction to try it. He explained this plea, however, by saying that the plaintiff should have filed a suit for redemption under Rule 12, Agriculturists Relief Act or under Section 83 for account.

( 2 ) THE trial Court framed four issues: 1. Is defendant-mortgages of the land in suit? 2. Is defendant trespasser?

( 3 ) IS the suit maintainable?

( 4 ) TO what relief and damages, if any, is plaintiff entitled? it came to the conclusion that the defendant was the mortgagee of the land in suit but became a trespasser because he refused to hand over possession of the land in suit to the plaintiff when he was offerred the mortgage consideration in July, 1949. On the third issue he stated: "this has not been pressed by the parties and is answered in the affirmative. " On issue 4 it stated that it was the admitted case of the parties that the mortgage consideration of the property in suit had been paid up from the usufruct of the property in suit. About defendant 2s posaeasion it held that she was also a trespasser. In the result it decreed the suit for possession without payment of any amount. 3. From this decree there was an appeal to the Civil Judge. One of the grounds of appeal to the lower appellate Court was that the trial Court has no jurisdiction to try the case. The decision of the trial Court on the other points arising in the case were also disputed. The lower appellate court settled two points for determination: " (1) Whether Ajodbya Singh is a mortgagee of the land in suit or whether he is a trespasser? (2) Whether the original Court has jurisdiction to try the present suit and is the suit maintainable in the present form? on the question of jurisdiction and maintainability of the suit in its present form the lower appellate Court held that these points were not pressed before the trial Court; but since the question had been argued, it held that there was no force in the plea. The mortgage deed was for rs. 250, and as such, according to that Court, a suit under Section 12, Agriculturists Relief Act, could be filed only in the revenue Court, which would be the very same Court in which the present suit was filed. The lower appellate Court, therefore, observed that it did not make any difference so far as the jurisdiction of the trial Court was concerned. It was further of the opinion that the suit was maintainable in its present form, be-cause it was not possible for the plaintiff to bring a suit under Section 12, U. P. Agriculturists Relief Act, he not having been shown to be an agriculturist.