JUDGMENT

Niamatullah, J. - These two appeals arise out of two suits brought by the two plaintiff-respondents u/s 44, Agra Tenancy Act (3 of 1926), for ejectment of the defendant-appellant on the allegation that the latter is in possession of the lands in dispute without the consent of the plaintiff in each case. The land in possession of the defendant lies partly in the mahal of one of the plan tiffs and partly in that of the other. Hence each of the plaintiffs brought a separate suit for ejectment, as already stated.

2. The defendant denied the plaintiffs' rights to maintain suits for ejectment, under the Tenancy Act and claimed to be himself the owner of the lands in dispute. A question of proprietary right having thus arisen, an issue was remitted by the Revenue Court to the Civil Court (in this case, the Munsif of Etah) u/s 121, Tenancy Act. The Civil Court upheld the defendants' claim to ownership of the lands in dispute, holding that he had been in adverse proprietary possession, thereof for a considerable length of time exceeding 12 years. On receipt of this finding the Revenue Court dismissed the plaintiffs' suit. The latter preferred two appeals to the Court of the District Judge, who reversed the decrees passed by the trial Court, but did not decree the plaintiff's' suits for ejectment and merely granted the relief of declaration to the effect that the plaintiffs are the owners, of the lands in dispute and, as such, entitled to have rent assessed thereon.

3. One of the contentions put forward by the learned advocate for the defendant-appellant is that the learned District Judge should not have granted the relief of declaration in the exercise of his powers as a Court of appeal from the decrees passed by the Revenue Court. It is argued that a Court of appeal cannot have greater powers than those of the trial Court, and that if the plaintiffs are not found entitled to eject the defendant, their suits u/s 44, Tenancy Act, which merely gives a summary remedy to the landlord against one who is presumably a tenant, should be dismissed. In the view of the cases I am inclined to take, I do not think it desirable, to adjudicate on the questions raised in the above contention. At best the argument is technical. If the plaintiffs, are the owners of the lands in dispute and the defendant is holding the same without their consent, proper relief can be granted to them even assuming that the learned District Judge granted a relief which he had no jurisdiction to grant.

4. On the main question arising in the case the defendant is entitled to succeed in these appeals. The history of the lands in dispute is mentioned in detail in the findings of the Munsif on the issues remitted to him by the Revenue Court. It is also stated in the judgment of the lower appellate Court. It is No. longer in dispute that the lands in dispute formed part of an area which was the site of saltpetre and indigo factories and houses belonging to one Ram Prasad before 22nd June 1868, when his rights passed to one Indar Man at an auction-sale. Indar Man's son Bhagwan Das sold them to one Sadiq Husain and Karimuddin in 1881. Sometime after the sale in favour of Sadiq Husain and Karimuddin the factories and the bouses were demolished or fell down. Sadiq Husain transferred his share to his wife Afridunnisa, who also acquired the interest of Karimuddin. She thus acquired the rights of Ram Prasad in the sites of the factories and houses. She and her husband Sadiq Husain applied on 2nd September 1902, to the Settlement Deputy Collector that their names be recorded in the khewat as owners of the land which was then cultivated. To this application they made all the co-sharers of the mahal parties. The two plaintiff-respondents, Ghafoor Mohammad Khan and Mohammad Ali Khan, were among them. The Settlement Deputy Collector dismissed the application on the ground that the applicants had offered no proof of the purchase alleged by them. Mt. Afridunnisa then instituted a suit fo