JUDGMENT M.C. Desai, C. J. - This is an appeal by the defendants from a decree passed by an Additional Civil Judge for their ejectment from the land in dispute. The suit was brought by respondent no. 1, who claimed that he was a sub-tenant of the land in dispute and that the appellants had taken wrongful possession of it and were liable to be ejected as trespassers. It was brought in the court of a Munsif, who being of the view that the suit did not lie in a civil court, dismissed it. On appeal, the learned Additional Civil Judge held that the civil court had jurisdiction over the suit, that it did not lie in a revenue court under Section 180 of the U.P. Tenancy Act and that the respondent was entitled to a decree for ejectment and passed the decree. On second appeal the matter came up before V. D. Bhargava, J. who has referred it to a Bench of two Judges. 2. The sole question before us is whether the suit lay in a civil court or in a revenue court. On behalf of the appellants it was contended that the suit lay in a revenue court under Section 180 (1) of the U.P. Tenancy Act (and not under any other provision). There is no controversy about the law that if it did not lie under Sec. 180(1) it lay in a civil court. We have, therefore, to see whether it lay under Sec. 180(1) or not. Sec. 180(1) reads as follows: - "A person taking........possession of a plot of land without the consent of the person entitled to admit him to occupy such plot shall be liable to ejectment under this section on the suit of the person so entitled." Sub-Sec. (2) of Section 180 lays down that if no suit is brought under sub-sec. (1). "The person in possession shall become a hereditary tenant of such plot on the expiry of the period of limitation prescribed for such suit ....: Provided that where the person in possession can not be admitted to such plot except as sub-tenant by the person entitled to admit, the provisions of this sub-section shall not apply until the interest of the person so entitled to admit is extinguished in such plot under Sec. 45(f)." 3. The question for decision by us is whether the respondent sub-tenant could bring a suit against the appellants for their ejectment under Section 180 (1). Since he could do so only if he was a person entitled to admit them to occupy the land in dispute, the question resolves into a question whether he was a person entitled to admit them to occupy the land in dispute. Explanation II to sub-sec. (1) provides that a tenant entitled to sublet in accordance with the provisions of the Act may maintain a suit under Section 180 (1) against a trespasser; this shows that who is entitled to admit a trespasser to occupy the land depends upon the law regarding the power to sublet. The words "entitled to admit to occupy" mean "entitled to admit a sub-tenant," if there is any existing lawful tenant-in-chief. The proviso to sub-sec. (2), which refers to the impossibility of admitting the trespasser to the land except as a sub-tenant also points in the same direction. 4. A person cannot be said to be entitled to admit another to occupy the land if he has already admitted somebody to do so; for instance if a land-holder has let out the land he is not entitled to admit another person to occupy it, and it is the tenant-in-chief who is entitled to admit another (by subletting it). It is thus the person who is in actual occupation of the land that can be said to be entitled to admit another to occupy it; he may leave his occupation and admit another to occupy it. The person from whom he derives the title lawfully cannot be said to be entitled to admit another to occupy the land as he has no right to remove the latter from occupation. But a person in occupation, who is debarred by law from transferring the possession to another person by sub-lease or in any other manner, cannot be said to be entitled to admit another person to occupy the land. Consequently if the land is in occupation of a land-holder himself, it is he who can sue under Sec. 180(1) because he is entitled to admit the trespasser to occupy the land (as a tenant-in-chief). If it is in occupation of a tenant-in-chief, it is he and not the land holder, who can sue under sub-sec. Consequently if the land is in occupation of a land-holder himself, it is he who can sue under Sec. 180(1) because he is entitled to admit the trespasser to occupy the land (as a tenant-in-chief). If it is in occupation of a tenant-in-chief, it is he and not the land holder, who can sue under sub-sec. (1) because he is entitled to admit the trespasser to occupy it (as a sub-tenant). If the person in occupation is a sub-tenant., whether he can sue or not depends upon whether he can admit the trespasser to occupy the land or not. Sec. 39 (1) lays down that a tenant other than a sub-tenant can sublet subject to certain restrictions and that no sub-tenant can sublet the whole or any part of a holding at all. A tenant-in-chief is prohibited from subletting only in certain circumstances but a sub-tenant is prohibited absolutely from subletting in any circumstances. The circumstances in which a tenant-in-chief cannot sublet are mentioned in Section 40 and Section 41 lays down exceptions to the rule contained in that section. Every transfer, other than a sub-lease, made by a tenant in contravention of the provisions of the Act and every sub-lease made by a sub tenant in contravention of the provisions of Sec. 39(2) is void, vide Sec. 44. So a sub-tenant can in no circumstance sublet the land and he has no power of transferring it in any other manner; in other words he is not entitled to admit any person to occupy it and cannot sue the trespasser under Sec. 180(1). His tenant-in-chief also would not be entitled to admit the trespasser to occupy the land because after having already sublet to him he cannot sublet again; so he also cannot sue under Section 180 (1). 5. This interpretation is consistent with the consequence of the period of limitation prescribed for a suit under Sec. 180(1) expiring without such a suit being brought, stated in sub-sec. (2) of Section 180, reproduced above. The consequence is that the trespasser becomes the hereditary tenant of the land (or a khudkasht-holder, if he is a co-sharer). It is significant that he acquires the right of a tenant-in-chief and never that of a sub-tenant or a subtenant's sub-tenant. (2) of Section 180, reproduced above. The consequence is that the trespasser becomes the hereditary tenant of the land (or a khudkasht-holder, if he is a co-sharer). It is significant that he acquires the right of a tenant-in-chief and never that of a sub-tenant or a subtenant's sub-tenant. This is in conformity with the interpretation that a suit under Sec. 180(1) can be brought only by a land-holder or a tenant-in-chief and not by a sub-tenant. There is reason behind the provision that the trespasser acquires hereditary rights by prescription whether the failure is of landholder or of the tenant-in-chief; in the former case the failure is taken to be tantamount to an act of letting and in the latter case the tenant-in-chief loses his own rights by lapse of time and the trespasser acquires hereditary rights in place of them. If a suit under Sec. 180(1) could be instituted when a person trespasses upon land in the occupation of a sub-tenant the consequences of the failure to sue the trespasser cannot be prejudicial to the person who could not have sued at all. The legislature could not have contemplated to punish a person for the failure of another person to sue. The sub-tenant would be the person directly affected by the trespasser and it would be for him to sue the trespasser and he should lose his rights if he fails to sue him. There would be no justification for depriving his tenant-in-chief of his rights for his failure to sue and the legislature could not have contemplated that the tenant-in-chief would lose his rights if the sub-tenant failed to sue. Since the legislature did not provide for the extinction of the sub-tenant's rights and the acquisition of these rights by the trespasser by prescription, it means that it did not contemplate that a suit under Section 180 (1) can be instituted when a sub-tenant is in occupation. Where there is a lawful sub-tenant in occupation, none of the three persons having interest in the land, viz. the land-holder, the tenant-in-chief and the sub-tenant, is competent to bring a suit and, therefore, sub-sec.(2) does not provide for the consequence of a failure to sue the trespasser under Sec. 180(1). 6. Where there is a lawful sub-tenant in occupation, none of the three persons having interest in the land, viz. the land-holder, the tenant-in-chief and the sub-tenant, is competent to bring a suit and, therefore, sub-sec.(2) does not provide for the consequence of a failure to sue the trespasser under Sec. 180(1). 6. On the date on which the land in dispute was sublet to the respondent the tenant-in-chief was a minor; this only means that he could sublet without any restriction vide Section 41 but not that the sub-tenant could further sublet in contravention of the provision in Sec. 39. Sec. 41 creates an exception to the law contained in Section 40 and not to the law contained in Sec. 39. The contrary view taken by the Board of Revenue in Hingoo v. Tifial, 1961 ALJ (Rev.) 47 is incorrect and with great respect to the learned member we do not agree with it. 7. For the above reasons we agree with the learned Additional Civil Judge and dismiss this appeal with costs.