JUDGMENT

Blennerhassett, J. - The defendants Nos. 1 and 2 granted to the plaintiff a lease for sixteen years on the 5th of June 1889, of an occupancy holding. On the next day the plaintiff granted a sub-lease for sixteen years to the defendants Nos. 3 and 4, who are brothers of the defendants Nos. 1 and 2, for the same land. The net result of these leases was that the plaintiff was to benefit to the extent of about Rs. 100 per annum for sixteen years.

2. The transaction appears to have been one of mortgage, though the parties have not directly stated this fact. Perhaps they thought that a mortgage of an occupancy holding would be held invalid by the Court, and so thought it better to draw up the two leases already mentioned. The plaintiff alleged that defendants Nos. 3 and 4 paid rent regularly till 1297 Fasli. They defaulted in 1298 and 1299 Fasli. The plaintiff distrained the crops. The defendants Nos. 1 and 2 filed an objection claiming the crops as their own and denying the plaintiff's title. The Revenue Court released the crops in favour of the defendants Nos. 1 and 2. The plaintiff sues for possession of the holding alleging that the defendants Nos. 3 and 4 are in collusion with the defendants Nos. 1 and 2. The Court of First Instance found that the Civil Court had no jurisdiction that the lease was a valid document that the plaintiff was entitled to possession of the land. The defendants did not press any argument on this latter point. The Court of First Appeal found that the Civil Court had jurisdiction and remanded the case for disposal on the merits.

3. The defendants appealed to this Court urging (1) that the suit was triable exclusively by the Revenue Court, and (2); that the remand should not have been made and the decree of the first Court should have been affirmed.

4. In the course of the hearing a question arose which has been referred to the Full Bench it is as follows:

Assuming for present purposes that the defendants Nos. 1 and 2 have, either with or without collusion with the defendants Nos. 3 and 4, entered into possession of the lands, the subject of the zar-i-peshgi lease mortgage, without the consent of the plaintiff, that mortgage being still in existence, what is the decree which the plaintiff is entitled in a Civil Court to obtain against defendants Nos. 1 and 2. Is it a decree in ejectment for possession of the mortgaged lauds or is it a decree for a declaration of title?

5. The suggestion in this case is that the plaintiff having granted a sub-letse for sixteen years is thereby debarred from suing for possession against his lessors, even though the lessors may have ejected the sub-lessees. The same principle would apply even if the land were held by year to year tenants.

6. The principle comes to this, that no suit for ejectment and possession of land can be brought unless the plaintiff was the actual cultivator at the time of ejectment; if he was not, his only remedy is to sue for rent against his tenants. As long as they pay, he has no other remedy, and must leave the trespasser in possession; if his tenants fail to pay, he can eject them according to law, and then he will have a cause of action against the trespasser, but not till then.

7. I may remark in commencing that that is not the view of the law taken by the parties in this case. The plaintiff alleged a cause of action for recovery of possession. The defendants did not press any argument against this view. There was in fact no proposition of law put forward by the defendants, such as that now raised.

8. The appellant has not explained the policy on which the suggested rule is founded, or the reason why a tenant should voluntarily or involuntarily let into possession a person denying the landlord's title, fail himself to enforce the landlord's possession, and then be permitted to debar the landlord from doing so, or how a suit by the landlord to eject a trespasser and replace the tenant can in any way injure the tenant's rights under a tenancy whic