JUDGMENT S.S. Dhavan, J. - This is a plaintiff's second appeal against the decree of the lower appellate court dismissing their suit on the ground that the Civil Court has no jurisdiction to try the dispute and returning the plaint for presentation to the proper court. The appellants filed at first a first appeal from order under Sec. 104, C.P.C. treating the decision of the lower appellate court as an order appealable under O. 43, R. 1, C.P.C., but this Court took the view that the appeal was essentially directed against the decree dismissing the appellants' suit and thereupon the appellants sought permission to convert their F.A.F.O. into a regular second appeal and pay the necessary court fee. He was permitted to do so and has paid the court fee. 2. The plaintiff appellants filed a suit against the defendant-respondents for the recovery of possession of certain plots situate in their village and for Rs. 800/- as damages. They allege that they had been holding these plots as sub-tenants of two persons who were the fixed rate tenants of these plots. They further claim that, with the coming into operation of the U.P. Zamindari Abolition and Land Reforms Act (Act 1 of 1951), they had become the Adhivasis of these plots. They complained that the two defendant respondents had been interfering with their possession since the year 1959 F and that the dispute reached the stage when proceedings under Sec. 145, Cr. P.C. had to be taken. The Magistrate, after hearing the disputants, put the defendant respondents in possession, leaving the plaintiff appellants to enforce their rights in the proper court. Thereupon they filed a suit before the Munsif of Mirzapur for recovery of possession and damages against the defendant respondents. The learned Munsif framed a number of issues on the pleadings of the parties, one of them being whether the suit was cognizable by the Civil Court. He held that it was. He also upheld the contention of the plaintiff respondents that they had become, on the passing of the U.P. Zamindari Abolition and Land Reforms Act, Adhivasis of the plots by virtue of Sec. 20 of that Act. He held that it was. He also upheld the contention of the plaintiff respondents that they had become, on the passing of the U.P. Zamindari Abolition and Land Reforms Act, Adhivasis of the plots by virtue of Sec. 20 of that Act. He rejected the contention of the defendant appellants that they had become Sirdars or Adhivasis of the plots in dispute and totally disbelieved their evidence describing the defendant appellant Parasram and his witnesses as "liars who have not been ashamed of eating their own words." Accordingly, he decreed the plaintiff appellant's suit for possession and damages. He assessed the damages at Rs. 500/-. 3. In appeal the learned Additional Civil Judge, Mirzapur, reversed the finding of the trial court on the question of jurisdiction. He held that the plaintiff appellants had a remedy under Sec. 20 of the Zamindari Abolition and Land Reforms Act to enforce their right to possession of the land, and that Entry No. 4 of schedule 2 of the Act provided that an application for recovery of possession under Sec. 20 is maintainable before the Assistant Collector in charge of the Sub-Division in which the plots are situate. He also held that Sec. 331 of the Act bars the jurisdiction of the Civil Courts in a dispute of this nature. Accordingly, he upheld the preliminary objection of the defendant respondents and allowed their appeal with costs. He set aside the decree of the trial court with a direction that the plaint should be returned to the plaintiff appellants for presentation to the proper court. Against this decision the plaintiffs have filed a second appeal before this Court. 4. It must be noted that the lower appellate court gave no decision on the merits of the case in appeal. Having decided that the civil court had no jurisdiction it directed the return of the plaint to the plaintiffs. The result has been that there has been no reassessment of the evidence or the merits of the case by the appellate court which disposed of the appeal on the preliminary question of jurisdiction. The first question before this court is whether this decision is correct in law. 5. For a proper appreciation of the nature of the controversy it is necessary to examine in detail the nature of the dispute and the matter in issue between the parties. The first question before this court is whether this decision is correct in law. 5. For a proper appreciation of the nature of the controversy it is necessary to examine in detail the nature of the dispute and the matter in issue between the parties. The plaintiff appellants filed their suit on 2nd July, 1952 that is, one day after the Zamindari Abolition and Land Reforms Act had become effective. It will be recalled that the notification of the Government of Uttar Pradesh under Sec. 4 of that Act was promulgated on the 1st of July 1952. In their plaint, the plaintiff appellants stated that originally they were sub-tenants of the plots in dispute. They further stated that the defendant respondents began to interfere with their possession and attempted to take forcibly possession of the plots. They alleged that this wrongful action of the defendants resulted in an apprehension of the breach of peace and the authorities had to take proceedings under Sec. 145, Cr. P. C. The Magistrate who held these proceedings directed that possession be given to the defendants and that the plaintiffs should enforce their rights in law. In paragraph 5 of the plaint the plaintiffs claim that, under the New Act that is, the Zamindari Abolition and Land Reforms Act they have acquired the status of Adhivasis and therefore entitled to possession of the plots in dispute. In paragraph 6 they stated that the cause of action arose some time "in the beginning of the month of Jeth, 1359F" on the day of interference by the defendants with the plaintiff's possession and on 31st May 1952, the date when the court directed possession of the plots to be given to the defendants. Paragraph 8 of the plaint contains the relief demanded by the plaintiff appellants. In clause (a) they prayed that possession be given to the plaintiffs who "have become Adhivasis of the plots in dispute." In clause (b) they asked for damages against the defendants at the rate of Rs. 800/- per year. 6. It appears to me, therefore, that the plaintiff appellants based their suit for possession on their status as Adhivasis. In other words, they sought to enforce their right as Adhivasi, whatever be the content of that rights. In addition, they claimed damages against the defendants for wrongful use of the plots in dispute and for having deprived them of their possession. In other words, they sought to enforce their right as Adhivasi, whatever be the content of that rights. In addition, they claimed damages against the defendants for wrongful use of the plots in dispute and for having deprived them of their possession. The nature of the right to claim damages has not been explained in detail, but it is obvious that it is based on their allegation that they were deprived of their possession to which they claimed to be entitled under the law. 7. The lower appellate court held, and rightly in my opinion, that the relief for possession of the plots in dispute as Adhivasis could have been enforced by the plaintiff appellants under Sec. 20 of the Zamindari Abolition and Land Reforms Act. In fact, it was conceded by Mr. G. P. Bhargava, learned counsel for the plaintiff appellants that if the plaintiffs had sued for possession alone, Sec. 20 was sufficient to give them all the reliefs they wanted. However, it is the plaintiff's claim for damages which complicates the question. The lower appellate court did not apply its mind at all to the relief for damages. As stated above, it rightly decided that an Adhivasi's claim for possession is within the exclusive jurisdiction of the revenue court by virtue of Sec. 20 read with Sec. 331 of the Zamindari Abolition and Land Reforms Act; but he did not consider the position in a case where a plaintiff claims damages in addition to possession. The sole question before me is whether a suit by an Adhivasi for possession plus damages was within the exclusive jurisdiction of the revenue court on the date when the plaintiff appellants filed it. 8. It is not contended that the relief for damages was added mala fide purely with the object of giving jurisdiction to the civil court. In any case, this contention would not be open to the defendant respondents in view of the decision of the trial court awarding a sum of Rs. 500/- as damages to the plaintiffs. A claim which is examined by the court on merits and substantially granted cannot be assailed as mala fide. 9. I am also of the opinion that the plaintiff's suit for possession was based on their status as Adhivasis and therefore maintainable under the Zamindari Abolition and Land Reforms Act and not under any other law. A claim which is examined by the court on merits and substantially granted cannot be assailed as mala fide. 9. I am also of the opinion that the plaintiff's suit for possession was based on their status as Adhivasis and therefore maintainable under the Zamindari Abolition and Land Reforms Act and not under any other law. It was contended by Mr. Harnandan Prasad, learned counsel for the defendant respondents, that the plaintiff's suit for possession was really under Sec. 180 of the U.P. Tenancy Act. He pointed out that the plaintiffs themselves had stated in their plaint that the cause of action arose in Jeth and May 1952 when the Zamindari Abolition and Land Reforms Act had not come into force. He argued that, in view of this statement, it was not open to the plaintiffs to contend before this Court that a suit for possession, in which the cause of action accrued before the passing of the Act, was instituted under that Act. According to Mr. Harnandan Prasad, this would be an impossible contention and should be rejected. He further emphasised the fact that the plaintiffs happened to have become Adhivasis after the cause of action had arisen but that this fact should make no difference to the nature of the suit which was for possession. According to him, their becoming Adhivasis was an episode which gave the plaintiffs no extra rights and that the passing of the Zamindari Abolition and Land Reforms Act made no difference in the nature of the dispute between the parties. The plaintiffs wanted possession and damages. Both these reliefs, according to him, could have been claimed by them under Sec. 180 of the U.P. Tenancy Act. If they could be so claimed, the revenue courts would have exclusive jurisdiction by virtue of 102 2 of the U.P. Land Tenures (Legal Proceedings) (Removal of Difficulties) Order 1952 which was issued on 26th August 1952 and published in the U.P. Gazette Extraordinary dated 26th August, 1952. If they could be so claimed, the revenue courts would have exclusive jurisdiction by virtue of 102 2 of the U.P. Land Tenures (Legal Proceedings) (Removal of Difficulties) Order 1952 which was issued on 26th August 1952 and published in the U.P. Gazette Extraordinary dated 26th August, 1952. Under that order, every suit, appeal or legal proceeding in respect of any right, privilege, obligation or liability acquired, accrued or incurred under or in pursuance of the U. P. Land Revenue Act, 1901, or the U.P. Tenancy Act, 1939, shall- (a) where pending on 30th day of June, 1952, in any revenue or civil court, be continued in such court; and (b) where not so pending, may be instituted or commenced in the court in which it would, but for the enactment of the U.P. Zamindari Abolition and Land Reforms Act, 1950, have been instituted or commenced.........." 10. Mr. Harnandan Prasad argued on behalf of the defendants respondents that the plaintiffs' claim for possession and damages had accrued under the U.P. Tenancy Act, for it is their own case that they were sub-tenants who had been deprived of their possession in May 1952. Therefore, they where not so pending, may be instituted or commenced in the court in which it would, but for the enactment of the U.P. Zamindari Abolition and Land Reforms Act, 1950, have been instituted or commenced could have enforced this claim in the revenue court under Sec. 180 of the U.P. Tenancy Act. He further argued that a suit maintainable by the revenue court under Sec. 180 of that Act, would confer on that court exclusive jurisdiction under Sec. 242 of the same Act. 11. Mr. Harnandan Prasad argued this part of his case with ability, and consider-able skill and ingenuity, but I am afraid that I am unable to agree with him. The point can be disposed of in a simple manner. The plaintiffs went to the court with an allegation that they had become Adhivasis and therefore entitled to possession of the plots in dispute. No amount of forensic skill can explain away the fact that their claim is based on their status as Adhivasis. This status is the foundation of their suit. Their having become Adhivasis is not a mere passing episode without legal significance. An Adhivasi claiming possession has merely to show that he is recorded in the revenue records as such. No amount of forensic skill can explain away the fact that their claim is based on their status as Adhivasis. This status is the foundation of their suit. Their having become Adhivasis is not a mere passing episode without legal significance. An Adhivasi claiming possession has merely to show that he is recorded in the revenue records as such. The entry in the record alone gives him the right to possession. That being so, he cannot be met with any defences which might be open to a defendant in a suit for possession under Sec. 180 of the U. P. Tenancy Act by a plaintiff who claims to have been wrongfully dispossessed. In such a suit, defences may be open to the defendants which would not be available against an Adhivasis. I therefore hold that the plaintiff's suit for possession as an Adhivasi could only have been filed after the passing of the U.P. Zamindari Abolition and Land Reforms Act and could not have been filed, before and but for the passing of that Act. In that view of the matter, this suit would not be covered by Sec. 2 of the U. P. Land Tenures (Legal Proceedings) (Removal of Difficulties) Order 1952. I might add that even if I were to hold that this section is applicable to suits of this nature, I have doubts as to whether the aforesaid order had come into effect on 2nd July, 1952 when the plaintiff's suit. was filed. It is true that the order itself states that "it shall come into force with effect from the first day of July 1952," but it was passed by the U.P. Government in the exercise of the powers delegated to it under the Act. It was promulgated on 26th August, 1952 and published in the Gazette on that date. I am doubtful whether the Government had the power, without the aid of Legislation to pass an order on the 26th of August and give it retrospective effect as from 1st July, 1952. However, I do not propose to decide this point as it was not argued before me and occurred only to the court. 12. I shall now consider the question whether the addition of the suit for damages makes any difference to the question of jurisdiction. However, I do not propose to decide this point as it was not argued before me and occurred only to the court. 12. I shall now consider the question whether the addition of the suit for damages makes any difference to the question of jurisdiction. I have already observed that the plaintiff's right, based on their status as Adhivasis, could have been enforced under Sec. 20 of the Zamindari Abolition and Land Reforms Act (and under that section alone), and that the jurisdiction of the revenue court in these dispute, has been made exclusive under Sec. 331. But learned counsel for plaintiff appellants contended that the revenue court could not have granted the relief for damages on the date when the suit was filed. He pointed out that Sec. 209 of the Act, which was amended after 2-7-1952 and which in its present form enables an aggrieved person to claim damages from a person who takes or retains possession of his land otherwise than in accordance with the law, contained no provisions for damages as it stood on 2-7-52, Mr. Bhargava stated that the words "and shall also be liable to pay damages" were added by Sec. 38 of the U.P. Act No. 20 of 1954. He also pointed out that on the date when the present suit was filed 2-7-1952 - schedule 2, which gives exclusive jurisdiction to the revenue courts by virtue of Sec. 331, did not contain Sec. 209. He pointed out that this Section was included in this schedule in 1958 by the U.P. Act no. 37 of 1958. He therefore argued that he could not have filed the suit for damages in any revenue court and alternatively, in any case, the jurisdiction of the civil court as regards the suit for damages, was not barred till 1958. 13. I am inclined to agree with this contention. After an examination of the relevant provisions of the various sections, I hold that it was not possible for the plaintiff-appellants to add a relief for damages if they wanted to enforce their right of possession as an Adhivasi under Sec. 20 of the U. P. Zamindari Abolition and Land Reforms Act. I have already held that the claim for possession was not under Sec. 180 of the U. P. Tenancy Act but under the "New Act". 14. Mr. I have already held that the claim for possession was not under Sec. 180 of the U. P. Tenancy Act but under the "New Act". 14. Mr. Bhargava pointed out that there was an additional reason why no suit could have been filed by the present plaintiffs under Sec. 180 of the U.P. Tenancy Act. He stated that the plaintiffs were subtenants of the plots in dispute. Therefore, they were prohibited from creating a further tenancy by Sec. 39 (2) of the U.P. Tenancy Act, Sec. 189 of that Act, he contended, gives a right to sue for possession only to a person who is entitled to admit the trespasser to occupy the plot in dispute. The relevant words are "without the consent of the person entitled to admit him to occupy such plot." According to Mr. Bhargava, the plaintiffs, by virtue of the prohibition of Sec. 39 (2) were not entitled to admit any one to the plots in dispute, and were therefore net entitled to file a suit against a trespasser under this section. In reply to this argument Mr. Harnandan Prasad pointed out that Sec. 180 was differently worded before 1947. Originally the relevant words were "without the consent of the person entitled to admit him as tenant." These were changed by the Amending Act (U.P. Act No. 10 of 1947) to "without the consent of the person entitled to admit him to occupy such plots." He therefore argued that the plaintiff's contention, which might have been valid before 1947, had no force in view of the Amending Act of 1947. According to learned counsel the change in the language of the section is significant and that the additional words are now wide enough to include any person who has the right or title to these plots. If a person has a title to occupy the plot himself he has the further right to admit any one else as a licensee. Therefore, the plaintiffs could have filed the suit under Sec. 180. I am doubtful whether this contention is valid. It is true that the right of ownership would include all its incidents including the right to alienate the property or to admit any one to occupy it. But the right to occupy property is not the same thing an owner-ship and does not necessarily include the right to transfer it. I am doubtful whether this contention is valid. It is true that the right of ownership would include all its incidents including the right to alienate the property or to admit any one to occupy it. But the right to occupy property is not the same thing an owner-ship and does not necessarily include the right to transfer it. A licensee may have a right to enter a certain property under his license, but it does not follow that he can allow others to enjoy this right. A license ordinarily confers a personal right which is not transferable. Moreover, I am equally doubtful whether the words "entitled to admit him to occupy such plots" are wide enough to include any person simply because he is entitled to occupy the plots himself. If that were so, the legislature would have used the words, "who is entitled to occupy the plot in his own right whether as landlord or tenant or sub-tenant or in any other capacity." I am inclined to agree with the suggestion of learned counsel for the plaintiff-appellants that the language of Sec. 180 was widened as a result of a decision of the Oudh Chief Court holding that, under the old words, only the landlord was entitled to sue under Sec. 180 and not the tenant. The amendment enables a tenant to sue for possession for he is entitled to create a sub-tenancy, but it confers no such right on a sub-tenant who cannot make a further alienation under the U.P. Tenancy Act. However, in view of my decision on other points, it is not necessary for me to decide this parr of the controversy. 15. For reasons given above, I hold that the civil court had jurisdiction, on the date when this suit was filed, to entertain the plaintiff's suit. 16. There remains the question as to what order should be passed in this appeal in the interests of justice. It is conceded by the counsel for the plaintiff-appellants that as a result of the action of the lower appellate court in dismissing the plaintiff's suit on the question of jurisdiction alone, they have not had the opportunity of having the assessment of the evidence by the trial court re-examined in appeal. Mr. It is conceded by the counsel for the plaintiff-appellants that as a result of the action of the lower appellate court in dismissing the plaintiff's suit on the question of jurisdiction alone, they have not had the opportunity of having the assessment of the evidence by the trial court re-examined in appeal. Mr. Harnandan Prasad, learned counsel for the defendant-respondents pointed out that if this Court allowed the appeal and left it at that, the result would be that his clients would be deprived of the opportunity of pressing their appeal as regards the merits of the case. I think there is force in this contention. The proper order, therefore, would be to remand the case to the lower appellate court. 17. I, therefore, allow this second appeal and hold that the trial court had jurisdiction to hear the case on merits. I remand the case to the lower appellate court with a direction that he shall hear the defendant respondent's appeal on merits. Pending and subject to the decision of the lower appellate court the decree of the trial court is restored. The plaintiffs shall get the costs of this appeal from the defendant respondents. 18. I do not think this is a fit case for Special Appeal and leave to appeal is refused.