Mullick, J.This is an appeal from judgment of the Subordinate Judge of Hazaribagh dismissing the plaintiffs suit.

2. The plaintiff is admittedly the proprietor and the defendants were non-occupancy raiyats of the lands in suit during the years 1974, 1975 and 1976 Section which roughly correspond to the years 1917, 1918 and 1919 A.D. The defendants were let in under a registered kabuliyat executed on 20th March 1917, by defendants 1 and 2 and one Anant Mahton. That lease expired in the Sam-bat year 1976, and according to the plaintiff defendants 1 and 2 made an application to the plaintiff on 1st Chait Sudi of that year asking for a renewal of the settlement. The plaintiff called for a report from her officers and it appears that on 4th August 1921 (corresponding to the 3rd Sawan Sudi 1977) the plaintiff ordered that settlement for one year, that is to say, for the year 1977 should be made with the defendants upon an increased rental. The oral evidence in the case is that this order carried with it also the condition that a registered kabuliyat should be taken from the defendants. In point of fact no kabuliyat was executed and it is the plaintiffs case that the negotiations for renewal for the year 1977 fell through. It is, however, a fact that on 9th Falgun 1977, which corresponds to February 1920, the defendants delivered over to the plaintiff about 74 maunds of rice. The defendants state that this was a part of the rental fixed for a renewed lease. The plaintiff on the other hand, says that, it was nothing of the kind but was merely damages for the use of the land in contemplation of the intended lease which was under negotiation.

4. At any rate, the plaintiff received no further sums and the plaintiffs case is that she treated the defendants as trespassers thereafter. The defendants then attempted to induce the revenue authorities in Hazaribagh to commute the rent of the holding from produce to cash rent, on the footing that they were occupancy raiyats. That attempt failed. The defendants also deposited in the treasury at Hazaribagh two sums of money of Rs. 330 each stating in the challan that the payments went for the rent agreed upon between them and the plaintiff for a renewed lease. That money is still lying in the treasury as the plaintiff declined to receive it.

5. On 6th September 1923, the plaintiff lodged the present suit for ejectment against the defendants.

6. The defence was that the defendants were not non-occupancy raiyats in 1917 as alleged by the plaintiff but that the holding was their ancestral holding in which they hid long ago acquired occupancy, rights. They also alleged that the kabuliyat of 23rd March 1917, was a forgery and that the plaintiffs officers had placed a blank sheet of paper before them on which they had been compelled to affix their signatures and that the kabuliyat was subsequently inscribed upon that paper. They further alleged that the application of 1st Chait Sudi 1977 was also a forgery and that this document also had been inscribed upon a piece of paper upon which the defendants had been compelled by threats to affix their signatures.

7. This part of the defence has been found to be completely false.

8. It has, on the other hand, been found that the kabuliyat of 20th March 1917, was executed by the defendants of their free will and was a perfectly valid contract; and with regard to the application for the renewal of the lease of 1st Chait Sudi 1977, that also has been found to be genuine.

9. With regard to the alleged payment of rent on 9th Falgun 1977, the Subordinate Judge his found as a fact that this transaction constitutes an acceptance of rent by the plaintiff. The plaintiff on the other hand, says that she never intended to treat this money as rent and that the transaction was then only at the stage of negotiation and finding that the defendants had omitted to carry out the condition precedent, namely, the execution and legislation of a kabuliyat she credited the sum not as rent but as mesne profits in her accounts. It is a fact that the piece of paper, upon which the payment is entered, is in the form of a rent receipt but it was kept in the office of the landlord and was never delivered to the defendants.

10. The contention that the contract was complete for the renewal of the lease for, at least the year 1977, in my opinion, is not based on any evidenve at all. In the first place the defendants denied it themselves. Their case from the beginning was that they were occupancy raiyats and that they never executed a kabuliyat and that they never made a proposal for the renewal of the lease; and in their evidence in Court they have maintained that position and continued to assert that they never made any application for the renewal of their lease. A new case is now sought to be made in appeal.

11. By reason of certain admissions made by the plaintiffs witness Girja Sahay we are asked to disregard the false case set up by the defendants in their written statement and in their evidence and to hold that there was in 1977 an offer and an acceptance for a new contract for the year 1977 followed by an acceptance of a part of the rent. I think when the evidence of the two material witnesses upon this point called by the plaintiff, namely Makundi Prasad and Girja Sahay is carefully considered, it is quite clear that no completed contract for the year 1977 was made. Makundi Prasad certainly does not say anything to suggest such a case. Girja Sahay does say in cross-examination that in 1977 a settlement was made with them for one year. He also states that a kabuliyat was prepared, but he goes on to say that it was not signed or registered and that, therefore, the contract fell through. Now, his statement that a settlement was made for the year 1977 must be read with reference to his statement in his examination-in-chief where he clearly intends to say that in 1977 the defendants applied for a settlement, but on being asked to execute the kabuliyat they declined to execute it. He does not in examination-in-chief say anything about a completed contract for the year 1977 and his evidence, must also be read with his employers order of 4th August 1921, and the evidence of the witness Makundi Prasad from which the reasonable inference to be drawn is that what Girja means is that an order was made for the grant of a lease but upon the refusal of the defendants to execute, a kabuliyat the contract was not completed. Makundi Prasad clearly in distinct terms states that the land in 1977 was settled with to defendants on produce rent on condition of their executing a kabuliyat which, means that if no kabuliyat was executed, there would be no settlement.

12. Taking the evidence, therefore, as a whole, I think the learned Subordinate Judges finding that the lordlord assented to the continuance of the tenancy must be set aside. The money, which was received by the landlord on 9th Falgun 1977, was an advance of the rent which would become payable upon the completion of the contract and in no sense can it be urged that by receiving it and keeping; the receipt in her possession the proprietor consented to treat the defendants as tenants holding for a fresh term.

13. So much for the contention now raised for the first time that there was a fresh settlement for the year 1977.

We must now go back to the plaint to see whether there is anything in the contention that the plaintiff assented to a. new tenancy either for a period of three years or for an indefinite term on the expiry of the settlement of the 20th. March 1917.

14. For this contention the learned advocate for the defendants relies upon paras. 3 and 4 of the plaint. In para. 3 the plaintiff says that she

agreed to give settlement and produce rent was fixed, but the defendant did not submit kabuliyats after registering them according to the custom and rules. Hence the contract stood cancelled.

In para. 4 it is alleged that

the defendants or their ancestor paid the produce rent in the shape of rice weighing. 74 maunds 19 seers worth about Rs. 200 in respect of the said under-mentioned land in 1977 and the rice was taken. But as they did not submit kabuliyat, no receipt was granted. The said amount was credited as mesne profits.

15. I cannot find from these two paragraphs any unequivocal assent to the continuance of the position of the defendants as raiyats. Having regard to the fact that the plaintiff was then attempting to-eject the defendants as trespassers while the defendants were contending that they were not liable to ejectment because they had acquired occupancy, rights, any admission on the part of the plaintiff that the defendants were non-occupancy raiyats for a fresh term seems to me to be out of the question.

16. It is contended that if the defendants became non-occupancy raiyats for a fresh term of three years or for an indefinite term, then they can be only ejected under the provisions of Section 41, Chota Nagpur Tenancy Act read with Section 139.

17. Of course, if they were non-occupancy raiyats for the years 1977, 1978 and 1979 or for an indefinite term, then this suit must fail, but if they were trespassers and if they are liable to ejectment under general law, then Sections 41 and 139 will have no application. Now, it is an admitted proposition that upon the expiration of the term of a lease the lessee becomes a trespasser unless the landlord chooses to treat him as a tenant for a fresh term. It has been sometimes said that the position of the lessee is that of a tenant on sufferance, that is, a person who comes in with a right hut holds over without a right; and in the present case the defendants, mot only upon this general principle, but also under the definition of tenant in the Chota Nagpur Tenancy Act cannot in any sense claim the status of a non-occupancy raiyat. They are not entitled to hold the land as of right and they cannot assume the status of non-occupancy raiyats.

18. If authority is needed for the proposition that a lessee becomes a trespasser upon the termination of his lease, we need only cite the case of Jagannath Das v. Janki Singh AIR 1922 P.C. 142. In that case their Lordships held that upon the termination of the lease the lessee became a trespasser whose possession was adverse to that of the landlord. To the same effect is Nathuni Ram v. Paresh Nath Singh 14 C.W.N. 297. The older cases under the Tenancy Act of 1859 (Act 10 of 1859) were considered in this case and it was observed that whatever might have been thought in some earlier cases reported in the Weekly Reporter, which were based on Section 25, Act 10 of 1859, there was certainly no room in the Chota Nagpur Tenancy Act for the argument that upon the expiration of his lease the lessee still continued to be a non-occupancy raiyat without proving any special contract with the landlord. This was a case from Chota Nagpur and it applies to the facts of the case before us.

19. It is, however, contended that even if the defendants are trespassers they cannot be ejected except under the special provisions of the Chota Nagpur Tenancy Act.

20. Now, a person, who has. been once inducted as a non-occupancy raiyat, is liable to ejectment during the term of his tenancy on the happening of the conditions mentioned in Clauses (a), (b), (c), (d) and (e), Section 41. Clause (d) refers to the condition arising upon the termination of his tenancy, where that tenancy has been created under a registered lease for a term, and it deals with his liability to ejectment when he has become a trespasser. It maybe that if he is admitted into occupation otherwise than under a registered lease for a term, a suit for ejectment cannot be brought without complying with the provisions of Section 42 of the Act; but in the present case having been admitted the land under a registered lease for a term, the defendants, in my opinion, are liable to ejectment u/s 41, Clause (d), upon the temination of that period.

21. Then the question is whether Section 139 is any bar to the entertainment of the suit by a civil Court.

22. Now, Clause (4), Section 139, provides that the revenue Courts shall have exclusive jurisdiction for all suits and applications under this Act to eject any tenant of agricultural land or to cancel any lease of agricultural land. If the defendants were not tenants within the meaning of the Chota Nagpur Tenancy Act at the time of the suit, obviously Clause (4) cannot apply. That clause only applies to the ejectment of persons to whom Clauses (a), (b), (c) and (e), Section 41, are applicable. It does not apply to a person who has ceased to be a tenant and who has become a trespasser and is holding adversely to the landlord. It will be seen by reference to Clause (4)(a), Section 139, that the Act provides for the ejectment of a trespasser if the landlord claims as an alternative relief that the defendants shall be declared liable to pa$ rent for the land, and enacts that in that case the suit is exclusively triable by the revenue Court. In the present case no alternative relief has been asked and, therefore, the jurisdiction of the civil Court is not ousted.

23. It was, however, contended that we are bound by the decision in Mt. Jageshwar Kuer Vs. Tikakdhari Singh, . In that case there was a lease and the plaintiff endeavoured to eject the defendants on the ground that they were inducted as non-occupancy raiyats and that the lease having been determined by efflux of time the defendants were liable to ejectment as trespassers. It was held that the suit was cognizable only by the revenue Court and that Clause (4), Section 139, Chota Nagpur Tenancy Act, was a complete bar to the jurisdiction of the civil Court. But the report does not show whether the non-occupancy raiyat was inducted by means of a registered kabuliyat for a term. The report only shows that there was a finding, by the final Court, of fact that the defendants were non-occupancy raiyats at the time of the suit and upon that finding the decision appears to have been perfectly correct that Section 139 was a bar. There is nothing in the report of the case to show that the defendants were inducted into the land by a registered kabuliyat the term of which had expired. We should, of course, have been compelled either to follow this case or to make a reference to the Full Bench if the material facts found in that case had been identical with those in the case now before us; but there was the great difference to which I have just referred and, therefore, in my opinion the case is not relevant to the matter before us.

24. The result, therefore, is that the decision of the learned Subordinate Judge must be set aside and the plaintiffs suit must be decreed with costs in the lower Court in full. The appeal is decreed with costs.

25. The plaintiff will also be entitled to mesne profits. By consent the mesne profits are fixed at Rs. 330 per year. The plaintiff will be entitled to recover mesne profits for the year 1977 and subsequent years up to the date of delivery of possession or the expiry of three years from the date of this decree whichever time may arrive earlier. The amount deposited in the treasury by the defendants will be withdrawn by the plaintiff in part payment of the above decree for mesne profits. The amount paid in as damages for use and occupation for 1977 will also be deducted.

26. The plaintiff will not be entitled to interest.

Kulwant Sahay, J.

27. I agree.