The surrender of property by a tenant to a third party without the landlord's consent is void, and the landlord has the right to press his claim in a civil court. Fraudulent registration of the transfer vitiates the transaction.

Prideaux, A J C—In this case the plaintiff and defendant 2 were owners of Mouza Raysana jointly, and on the plaintiff's application his share was divided into a separate patti and he became the sole owner of patti No. 4 in the village, the partition coming in force on 1st June 1921. He now sues for possession of field No. 54, contending that defendant 1 Nago has no right to hold the field and that he had taken wrongful possession of the same from August 1923. It was said that Ragho the original tenant of the field was in possession till 30th January 1923.

2. Defendant 1 contended that he had taken a lease of the field from defendant 2 on 7th April 1923 and that he is entitled to possession on the ground that he was duly made a tenant and could not be evicted. Defendant 2 admitted that he had taken the field in surrender on 31st January 1923 and let it out to defendant 1 on 7th April 1923. It was further contended that the plaintiff was not appointed the lambardar of the patti and that the lease was given by defendant 2 in the ordinary course of management and with the consent of the plaintiff. It was further contended that the remedy was to get the transfer by Ragho set aside by the revenue Court and that the civil Courts had no jurisdiction.

3. The trial Court found that Ragho surrendered the field on 31st January 1923 and that the deed by which the land was surrendered was a transfer, and further that the plaintiff cannot sue in a civil Court without setting that transfer aside and the suit is not maintainable. The Judge writes:

In this case the patti of the plaintiff was separated and the plaintiff became the sole owner thereof from 1st June 1921. Thus defendant 2 bad no interest in that from 1st June 1921 onwards. Thus the surrender in favour of defendant 2 was a transfer in favour of a stranger and the remedy of the landlord for such a transfer made in contravention of Section 12, Tenancy Act, is to go to the revenue Court to get the same set aside and get possession of the field.

4. The Judge further writes that no suit can lie unless and until the surrender is set aside and no suit for possession can lie in this Court.

5. On appeal the learned Judge of the lower appellate Court holds that the civil Courts have no jurisdiction in the case and that the suit was rightly dismissed. The consideration for Ragho's surrender or transfer to defendant 2 was said to be arrears of rent amounting to Rs. 40.

6. Now, it is absolutely clear that defendant 2 had no right to accept a surrender or transfer of the field for arrears of rent, and he is exactly in the same position as an absolute outsider would be. Can it be seriously contended that, if an outsider resident of another village - chooses to accept a surrender or a transfer from a tenant in another person's patti and then gives the land out to another tenant, the owner of the patti is debarred from pressing his claim in a civil Court? I do not think so. The plaintiff here is the sole landlord, and as to what took place between Ragho and defendant 2 is no concern of his and is void as against him. Further, had the document been executed as a transfer, registration would have been refused and so that registration was obtained by fraud, which vitiates the transaction. After all, the venue in a case is determined by the nature of the claim as brought; see Ganpat v. Trimbak,1913 9 NLR 54. In my opinion the civil Courts have a right to try the present suit. I therefore, set aside the decree of both the lower Courts and remand the case to the trial Court for a fresh decision. Costs will abide the result.