RANDHIR SINGH, J. :- This is a second appeal which has been referred to us by one of us sitting singly and before whom the appeal originally came up for hearing as it appeared that the authorities on the points of law involved in this case were not all clear and consistent.

2. The appeal arises out or a suit for possession instituted by one Ram Baran against Sobha Nath and Ram Bilas on the allegations that Ram Baran and Ram Bilas, defendant No. 2, were joint tenants of plot no. 958, having an area of 9 biswas, situate in village Kakrapur, district Faizabad and that defendant no. 1 was a licensee on behalf of the plaintiff and defendant no. 2. This licence was, according to the plaintiff, revoked in 1353 Fasli but defendant no. 1 did not relinquish the land. The plaintiff also claimed a sum of Rs. 15/- as damages.

3. Defendant no. 1 contested the suit mainly on the ground that it was he who was the tenant of the land and that the plaintiff or defendant no. 2 were not the tenants. An issue of tenancy was framed and was then referred to the revenue court for a finding. The revenue court held that the plaintiff and defendant no. 2 were not the tenants. On receipt of this finding the learned Munsif dismissed the suit on the 9-10-1946.

4. The plaintiff then went up in appeal. The learned Civil Judge who heard the appeal, however, disagreed with the view taken by the trial Court and allowed the appeal, holding the plaintiff and defendant no. 2 joint tenants of the plot in dispute. Dissatisfied with the decree passed in appeal defendant No. 1 has now come up in second appeal.

5. The first point which has been urged on behalf of the appellant is that the amendment of the U.P. Tenancy Act made by Act 10 of 1947 which came into force on the 14-6-1947 had made an alteration in the law which should be given effect to by setting aside the decree passed earlier by the trial Court.

Prior to the amendment of the U.P. Tenancy Act by Act 10 of 1947 the law, so far as it governed Avadh, was that suits by tenants against trespassers could be maintained only in the civil court. The suit instituted by Ram Baran on the 26-10-1945 in the civil court was, therefore, validly instituted in the proper forum.

The effect of the amendment, which came into force on the 14-6-1947, was that all suits by tenants against trespassers were also to be instituted only in the revenue court.

It is now urged that, even though the suit had, been instituted in the proper forum on the date when it was filed, the decree being in appeal in this Court, the amended law should be given a retrospective effect, and a fresh decree should be passed giving effect to the law as it stood now.

Reliance has been placed on the two rulings - Shyamakant Lal v. Rambhajan Singh, AIR 1939 FC 74 (A) and - Lachmeshwar Prasad v. Keshwar Lal, AIR 1941 PC 5 (B) for the proposition that once an appeal is instituted, the case has to be re-heard and a decree has to be passed in accordance with the provisions of law as they stood on the date of the hearing of the appeal.

We have carefully gone through the two rulings cited above, and it appears to us that the principles of law enunciated in these two rulings have hardly any application to the facts of the present case.

Both the reported cases relate to Bihar Money Lenders Act (7 of 1939). Under the Bihar Money Lenders Act certain rights of debtors qua money lenders in respect of debts were determined and such rights were also given a retrospective effect. These rights had to be recognised not only in decrees to be passed in future but also in decrees which had already been passed. Therefore once the appellate Court came to the conclusion that the decree as passed was not a good decree in view of the amendment in law and a fresh decree should be substituted, it became necessary to examine the law as it stood on the date when the fresh decree was to be passed.

None of these two cases is an authority for the proposition that the mere institution of an appe