JUDGMENT

Ashworth, A J C - This second rent appeal arises out of a suit brought by the plaintiffs-appellants Lachhmi Narain, etc. against one Ramanuj Singh under Section 127 of the Oudh Rent Act for arrears of rent The suit was decreed and under Sub-section (2), of Section 127 a decree for ejectment was passed. The judgment of the Assistant Collector is dated 31st October, 1923.

2. The defence set up by the defendant-respondent Ramanuj Singh was inter alia that he had got the plaintiffs' permission to retain the land and alternatively that he held the land from one Ram Sewak who was the tenant-in-chief. On these two pleas Issues Nos. 4 and 5 were framed but they were both decided against the defendant-respondent Ramanuj.

3. In first appeal to the District Judge of Fyzabad the defendant-respondent urged that both these findings of the first Court were wrong. The District Judge did not come to any decision on these two findings of the first Court, but he allowed the appeal on the ground that the plaintiffs in their plaint had described the defendant as a sub-tenant and he held that Section 127 could not be invoked against a person who was admittedly a sub-tenant. In second appeal to this Court it was pointed out that a person entitled to eject another person, who was a trespasser on a holding, could, claim under Section 127 arrears of rent against that person as if he were his tenant and that such a claim was not inconsistent with the position that the defendant was otherwise merely a trespasser. The appeal was remanded by this Court by an order dated 9th July, 1924 and the District Judge was directed to re-admit the appeal and proceed to decide it.

4. The District Judge has again failed to decide the grounds of appeal raised by the defendant-respondent in this case. In effect the District Judge has stated that on the defendant's pleadings it appeared that the defendant believed that Ram Sewak was the tenant-in-chief of land and it also appeared that he, the defendant, had taken a mortgage from Ram Sewak. The District Judge has held, that there being no evidence of the relation of landlord and tenant existing between the plaintiff and the defendant, a suit would not lie under Section 127. He also has said that the pleadings of the defendant raised the question of the validity of a mortgage.

5. As to the first decision it is curious that the District Judge in his first judgment threw out the suit on the ground that Section 127 would not apply where the plaintiff admitted the defendant to be his tenant. He has now held that Section 127 will not apply where no relationship of landlord and tenant exists between the plaintiff and the defendant. The proper view is that Section 127 applies to a case where a plaintiff alleges a person to be a trespasser, but agrees that in order to get a decree for rent from him he will treat him as a tenant, in the way that Section 127 permits. The question whether a mortgage by a tenant is legal or not did not arise in the case, at any rate at the stage that the case was in when the appeal was preferred to the District Judge. The defendant stated that he had a mortgage from Ram Sewak. The plaintiffs denied that Ram Sewak was tenant of the land and consequently they denied by implication that any mortgage by Ram Sawak could assist the defendant to resist the suit. If the District Judge were to find as against the Assistant Collector who tried the case that Ram Sewak was tenant-in-chief, and not the plaintiffs, then the suit would fail because the plaintiffs would have failed to prove as required by Section 127 that they were the persons entitled to eject the defendant as trespasser and it would not be necessary to enter into the question of mortgage by Ram Sewak.

6. The finding of the District Judge that on the pleadings of the defendant no suit will lie under Section 127 is set aside and the case is remanded again to the District Judge for decision of the questions raised by the defendant's appeal to