JUDGMENT

Ryves, J. - This appeal raises a point which, so far as I know, is a novel one. The suit was brought in the Court of the Assistant Collector of Benares u/s 96 of the Agra Tenancy Act. It was alleged in the plaint that the plaintiff had been a thekadar of Mouza Udaychandpur under H.H. the Maharaja of Benares; that his theka was about to expire and negotiations were entered into between him and State officials for the purchase of a permanent lease of this mauza. It was agreed on behalf of the Maharaja that a permanent lease should be granted and certain sums of money were paid into the Treasury by the plaintiff in accordance with the contract. There is some dispute apparently as to the nature of this payment which is described as amaner, or deposit. It is then alleged that the village was sold to defendants Nos. 2 and 3 and that the plaintiff had previously given notice to defendants Nos. 2 and 3 or the contract ertered into between the Maharaja and himself for the permanent lease. It was mentioned in the plaint that the plaintiff had applied to the Local Government for sanction to bring a suit against the Maharaja for specific performance of the contract, and, on this application being refused, the present suit was filed u/s 96 of the Agra Tenancy Act. Among other pleas taken in defence, it was urged (1) that no contract had been completed between the parties, and (2) that in any case the suit as brought was not maintainable.

2. The Court of first instance upheld both these pleas and dismissed the suit. The plaintiff appealed and the learned District Judge of Benares has disposed of the matter in a short judgment. It held that Section 96 did not apply to the facts of this case. The plaintiff is not in possession without a lease. He had been in possession under his theka and when the theka came to an end be was ejected and never retained possession with the consent of the zemindar after the expiry of his theka. He, therefore, dismissed the appeal on this short point.

3. In second appeal before me it is urged (i) that this view of Section 96 is erroneous, and (2) that in any case, under the provisions of Section 197(1), as all the materials were on the record, the lower Appellate Court ought to have decided the matters in issue between the parties as if the suit bad been properly brought in a Civil Court. On the first point it seems to me that the Court below is right not only on the ground that it has taken but also because I think that, although the thekedar is a non-occupancy tenant within the meaning of the general definition in Section 19, that nevertheless Section 96 can apply only to a non-occupancy tenant of an agricultural holding, which a thekadar is not. Reading the whole section and looking at the from of the lease in the Third Schedule, it seems to me to be clear that the section is meant to apply only to a non-occupancy tenant of an agricultural holding but even if it does apply to a thekadar, I think for the reason given by the learned District Judge it is not applicable in this case. The section runs:

A non-occupancy tenant is entitled to receive a written lease from his landholder, and a landholder upon delivering or tendering to a non-occupancy tenant a lease consistent with the provisions of this Act, is entitled to receive from him a counterpart thereof.

4. I think the two parts of this section must be read together so as to get at the real meaning, and that the one is the converse of the other. A landlord is not entitled to get a counterpart from his tenant until he delivers or tenders a lease. Similarly, it seems to me that the firs part of the section applies to a person who is in possession of the land as a tenant but who has not obtained a lease in writing. Such a person under the section may require the landlord to give him a written lease.

5. On the second point I do not think Section 197 can be read so as to give the Civil Court jurisdiction in a case of this kind. The obvious remedy for the plainti