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Jag-naraIn Mallah Vs. Bhagauti Prasad Pandey - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. Nos. 1548 of 1951 and 126 of 1952
Judge
Reported inAIR1958All48
ActsTenancy Law; Uttar Pradesh Tenancy Act, 1939 - Sections 180, 183 and 242; Code of Civil Procedure (CPC) , 1908 - Sections 9; Specific Relief Act, 1877 - Sections 9; Uttar Pradesh Land Revenue Act, 1901 - Sections 40, 40(2) and 40(3)
AppellantJag-naraIn Mallah
RespondentBhagauti Prasad Pandey
Appellant AdvocateV.K.S. Chaudhary, Adv.
Respondent AdvocateJ.N. Chatterji, Adv.
DispositionApplication allowed
Excerpt:
(i) tenancy - jurisdiction - section 180,183 and 242 of tenancy laws, 1939 - plaint alleges set of facts which empower court to exercise jurisdiction and mentions nothing about the latter set - court bound to take cognizance. (ii) civil - possession of property - section 40(2) of uttar pradesh land revenue act, 1901 - party found to be in possession and by order his name entered in the khasra - cannot be termed as an order as to possession. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run.....desai, j.1. these two revision applications raise the same question whether a suit can be instituted in a civil court under section 9 of the specific relief act even though a suit could be instituted in a revenue court under section 180 or section 183 of the u. p. tenancy act.2. the two suits which give rise to the applications were instituted in civil courts under section 9, specific relief act and were both decreed in spite of the objections of the defendants-applicants that the jurisdiction of the civil courts to hear them was barred by the provisions of section 242 of the u. p. tenancy act. both the suits purported to be suits purely and simply under section 9, specific relief act; the only allegations contained in the plaints were that the plaintiffs were in possession of the land in.....
Judgment:

Desai, J.

1. These two revision applications raise the same question whether a suit can be instituted in a civil Court under Section 9 of the Specific Relief Act even though a suit could be instituted in a revenue Court under Section 180 or Section 183 of the U. P. Tenancy Act.

2. The two suits which give rise to the applications were instituted in civil Courts under Section 9, Specific Relief Act and were both decreed in spite of the objections of the defendants-applicants that the jurisdiction of the civil Courts to hear them was barred by the provisions of Section 242 of the U. P. Tenancy Act. Both the suits purported to be suits purely and simply under Section 9, Specific Relief Act; the only allegations contained in the plaints were that the plaintiffs were in possession of the land in dispute previously and that they were dispossessed by the defendants within the six months immediately preceding the institution of the suits.

In the suit giving rise to the application, No. 1543 of 1951, it turned out from the evidence produced in the Court that in the course of record operations the name of the defendant-applicant was entered in the khasra of 1355 Fasli in compliance with an order passed by a Record Officer. The land in dispute was khudkasht of the plaintiff-opposite-party and his name was entered in the column of tenant's name in the khasra of 1354 Fasli.

In the remarks column there was a note that the possession of the plaintiff-opposite-party was disputed, that the defendant-applicant was in possession and that there was an order of the Record Officer that the name of the defendant-applicant should be entered in the khasra of 1355 Fasli with the term of cultivation as one year. Accordingly the applicant's name was entered in the khasra of 1355 Fasli.

On establishing these facts the defendant contended that the civil Court had no jurisdiction, its jurisdiction being barred not only by the provisions of Section 242, U. P. Tenancy Act, but also by those of Section 40, U. P. Land Revenue Act. In the other suit giving rise to the application No. 126 of 1952, it was established during the hearing of the suit that the plaintiff had instituted a Suit against the defendant for his ejectment from the land in dispute under Section 180, U. P. Tenancy Act, that proceedings in the suit were stayed in accordance with the provisions of U. P. Acts Nos. 10 of 1949 and 7 of 1950 and that while the proceedings remained stayed the suit was instituted concealing the facts about the institution of the suit under Section 180 and its stay.

3. A person entitled to admit another to occupy a plot of land is entitled to eject him through a suit under Section 180 if he takes possession of it without his consent and otherwise than in accordance with the provisions of the law, and a tenant ejected from his holdings or a part of it otherwise than in accordance with the provisions of the law by his landholder or a person claiming as such or a person admitted to or allowed to retain possession of the holding by him, may Sue him for possession under Section 183, U. P. Tenancy Act.

It is provided in Section 242 that suits of the nature specified in the fourth schedule (suits under Ss. 180 and 183 are specified in it) must be heard and determined by a revenue Court and no other Court can take cognizance of any such suit, or of any suit based on a cause of action in respect of which any relief could be obtained by means of any such Suit.

Previously the provision was that if adequate relief could be obtained by means of a suit in a revenue Court, no suit would lie in a civil Court; later the word 'adequate' was expunged and still later the word 'any' was added. The position now is that if some relief, whatever be its nature and however inadequate it may be, can be obtained by means of a suit under Section 180 or Section 183, no suit can be instituted in a civil Court.

The language employed in Section 242 is as emphatic as it is clear. As observed by our brother M. L. Chaturvedi in Mohammad Zahir Hasan v. Dulare : AIR1953All729 , the prohibitory clause is 'very widely worded'; the exclusion of cases from a civil Court's jurisdiction is very wide. Not only a suit, which can be filed in a revenue Court under Section 180 or Section 183, cannot be filed in a civil Court but also if a plaintiff can obtain from a revenue Court, any relief by means of a suit under Section 180 or Section 183, he cannot file a suit for any relief in a civil Court.

Of course no plaintiff would be foolish enough to state in the plaint that the suit is under Section 180 or Section 183 and yet file it in a civil Court; what is meant by barring a civil Court's taking cognizance of a Suit under Section 180 or Section 183 is that if a plaint contains allegations which are required for a suit under Section 180 or Section 183, i, e it is based on a cause of action mentioned in either of those sections, a civil Court is prohibited, from entertaining it.

The prohibition is not confined to a plaint based on such a cause of action; it goes further and a civil Court is prohibited from taking cognizance of a suit based on a cause of action in respect of which any relief could be obtained by a suit under either of the sections from a revenue Court, i.e., whatever may be the allegations in the plaint, if the plaintiff could obtain any relief by means of such a suit, the plaint cannot be entertained by a civil Court.

If on the accrual of a cause of action a person can get relief by mean's of a suit under either of the sections, he is compelled to file such a suit and a civil Court is prohibited from entertaining any suit howsoever framed in respect of the cause of action. Since the legislature could not expect a person to be so foolish as to purport to sue under either of the sections and yet file the suit in a civil Court, the words 'no Court other than a revenue Court shall ..... take cognizance of any such suit' must mean that no other Court shall take cognizance of a suit containing the allegations required for such a suit, i.e., based on a cause of action for such a suit.

Consequently the further prohibition thatno other Court shall take cognizance of anysuit based on a cause of action in respect ofwhich any relief could be obtained by meansof such a suit must mean that no other Courtcan take cognizance of any suit, though notcontaining the allegations required for a suitunder either of the sections, if the plaintiff canfile such a suit on the cause of action accruingto him.

In other words a plaintiff :is not given a choice of two Courts; he is not permitted to file a suit in one Court or the other by making appropriate allegations in the plaint. He has no election in the matter at all; the forum of Court is determined once for all by the cause of action that has accrued. The cause of action means the facts that have happened on account of which a person gets a right to file a suit for a relief; whatever facts have happened have happened and cannot be changed subsequently.

It means that a cause of action is, and remains immutable after it has accrued; it cannot be changed though it can be suppressed or concealed or twisted. Whether a suit would lie in a civil Court or a revenue Court is determined and determined once for ever as soon as the cause of action accrues and the plaintiff is required by law to file the suit in the Court which can grant relief for the cause of action and is not prohibited from taking cognizance of the suit.

Since he is required to state in the plaint how the Court has jurisdiction, he must state the cause of action as it accrued, i.e., he must make true and full allegations. He cannot suppress the cause of action or a part of it and cannot make false or incomplete allegations and file the suit in another Court. Even though another Court would have jurisdiction to entertain his suit, if the allegations made in the plaint were correct, and would entertain it for the time being, on the defendant's showing what the real cause of action was, it would be obliged to dismiss the suit on the ground of exclusion of its jurisdiction.

The words 'cause of action' used in Section 242 mean the actual or real cause of action that has accrued and not a fabricated or simulated cause of action or the cause of action alleged in the plaint. The emphatic prohibition would be wholly inconsistent with the idea of giving a plaintiff a choice of two Courts by making appropriate allegations in the plaint and since he has no choice in the matter, the forum must be determined by the real or actual cause of action and not by what he alleges in the plaint.

If he has no choice, he cannot change the forum by changing the cause of action or alleging an unreal or incomplete cause of action. It is true that the jurisdiction is determined by the allegations made in a plaint, but this statement does not solve the whole problem or answer all the questions that arise.

It is clear from the language of Section 242 that the forum should be ascertained first and then, appropriate allegations should be made in the plaint and not that any allegations be made in the plaint and then the forum be determined on their basis. The section takes into account only the cause of action which means the real cause of action and not the allegations that may be made in the plaint.

Since a plaintiff has no choice of forum, he has also no choice of allegations to be made. The forum is determined by the cause of action that has already accrued and the allegations to be made depend upon the forum.

4. In many cases it has been held that the forum depends upon the allegations made in the plaint for instance Ganga Din v. Gokul Prasad : AIR1950All407 ; Mt. Ananti v. Chhannu : AIR1930All193 ; Khushnud Husain v. Janki Prasad : AIR1931All663 and Ishwar Din v. Ch. Mohd. Ishaq : AIR1952All496 , but only in the last case it was made clear that this is true only for the initial stage.

However the distinction between the real cause of action and a fictitious or incomplete cause of action was brought out in the cases of : AIR1930All193 and : AIR1952All496 , Even in the case of : AIR1930All193 , at one place the actual cause of action was confused with the allegations made in the plaint. At page 194 Sulaiman Mukerji and Kendall JJ. observed that the plaintiff

'is to see in which Court his suit would lie, having regard to the facts of his case, which means the allegations in his plaint, and the valuation of the suit';

this confuses the facts of the cause with the allegations. The facts of the case are the real cause of action; the allegations in the plaint may describe the cause of action completely or may describe it incompletely or may suppress or conceal it and allege a different or unreal cause of action. The learned Judges did not mean to lay down that the forum depended not upon the real cause of action that had accrued but upon the cause of action alleged in the plaint.

So far as the taking cognizance of the suit is concerned, the Court would certainly decide the matter by taking the allegations in the plaint to be correct; but if its jurisdiction is barred by law if certain circumstances existed, it would lose the jurisdiction on the existence of the circumstances being proved by the defendant.

A Court may have jurisdiction over a suit if certain circumstance's existed, but its jurisdiction, may be excluded if certain other circumstances existed; if a plaint alleges the former set of circumstances and mentions nothing about the latter set, the Court would be bound to take cognizance of the suit; it would be for the defendant, if he wants to challenge the jurisdiction of the Court, to prove the latter set and when he succeeds the Court would be divested of the jurisdiction and would be bound to dismiss the suit.

That the plaintiff was in possession previously and that he was dispossessed by the defendant within the six months immediately preceding the institution of the suit are circumstances conferring jurisdiction upon a civil Court to take cognizance of the suit; if only these circumstances are alleged in the plaint, the Court would be bound to take cognizance of the suit and proceed to hear it.

That the plaintiff could obtain a relief on the cause of action that had accrued by means of a suit under Section 180 or 183, U. P. Tenancy Act, is a circumstance which divests a civil Court of its jurisdiction. If the circumstance is mentioned in the plaint, the civil Court will refuse to take cognizance of the suit and return the plaint to the plaintiff for presentation to a revenue Court, but if the circumstance is suppressed from the plaint and is proved by the defendant to exist, the Court will be obliged to hold that it has no jurisdiction and to dismiss the suit.

It may be noted here that the Court will dismiss the suit and not return the plaint for presentation to a revenue Court, because the plaint as it is drafted would not be within the cognizance of a revenue Court. In order to confer jurisdiction upon a revenue Court the plaint must allege a cause of action in respect of which it can grant relief. A plaint can be returned for presentation to another Court only if, as it stands, it can be entertained by the other Court; if as it stands it cannot be entertained by the other Court, it must be amended before it is presented to it.

In certain cases the Court in which it was presented initially will order the amendment to be carried out (for example when the plaint is undervalued). In other cases the plaint will be returned leaving it to the plaintiff to file another plaint in the competent Court. This legal position has been made very clear in the case of : AIR1930All193 , and I respectfully agree with the following observations of the learned Judges at pages 195-196:

'The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts, he will get his relief from the forum chosen.

If.....he frames his suit in a manner not warranted by the facts, and goes for his relief to a Court which cannot grant him relief, on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper Court, for the plaint, as framed, would not justify the other kind of Court to grant him the relief.

Where it is found that on the allegations made in the plaint, the suit is cognizable by the Court, it will have to proceed to find whether the facts alleged in the plaint are established or not. If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendant are true, and that the case is not cognizable by the Court, there will be two kinds of orders to be passed.

If the jurisdiction is only one relating toterritorial limits or pecuniary limits the plaintwill be ordered to be returned for presentation to the proper Court. If, on the otherhand, it is found that, having regard to thenature of the suit, it is not cognizable by theclass of the Court to which the Court belongs,the plaintiff's suit will have to be dismissedin its entirety. The reason will be that on theunamended plaint the revenue Court wouldhave no jurisdiction to hear this suit.'

The distinction between a suit based on thereal cause of action and a suit based on a fictitious cause of action is brought out in these ,observations and they make it clear that a Court may lose jurisdiction on a certain set offacts being proved even though at the initial stage it had jurisdiction and that in such acase the suit will be dismissed instead of the plaint being returned. In the case of : AIR1931All663 , Sulaiman J. simply followed the case of : AIR1930All193 .

D.N. Rege v. Mohammad Haidar : AIR1946All379 , is another decision, of a Full Bench of this Court supporting the view that the allegations made in a plaint do not conclusively determine the jurisdiction of a Court, that a plaintiff cannot go to a wrong Court by making false allegation and that the state of affairs which existed at the time of the institution of the suit determines the jurisdiction.

In Baur v. Deo Kali : AIR1951All610 , Agarwala J., with whom Kidwai J. agreed, recognized that the jurisdiction rightly assumed by a Court on the basis of the allegations made in the plaint may be lost by subsequent proof of certain facts by the defendant. In that case a suit was brought in a revenue Court under Section 180 by a person who simply alleged that he was a landholder and that the defendant was a trespasser and it was held that the revenue Court had jurisdiction to try the suit even though it was not alleged that the defendant claimed tenancy rights and not proprietary rights.

It was pointed out that if the defendant had claimed proprietary rights and proved the fact, the revenue Court would have been divested of its jurisdiction. (The learned Judge added that the plaint would have been returned for presentation, but I respectfully disagree.) Man Pal v. Birja : AIR1951All611 , follows the cases of : AIR1946All379 and : AIR1951All610 , and emphasizes that the jurisdiction depends upon the real cause of action and not upon an alleged cause of action if it is different; in that case the plaintiff sued in a civil Court for ejectment of the defendant alleging that he had wrongfully trespassed upon his land and the plaint was held to be cognizable by a revenue Court, because the fact was that the defendant was claiming only tenancy right's and not proprietary rights adversely to the plaintiff.

In Beni Madho Singh v. Prag : AIR1949All510 , Bhargava J. held that a suit filed under Section 9, Specific Relief Act, was not cognizable by a civil Court. The allegations in the plaint of the suit themselves showed that the defendant was a previous tenant of the land in dispute and had mortgaged it with the plaintiff, that the defendant's tenancy right was lost and that the plaintiffs acquired the tenancy right. On these allegations the plaintiff should sue the defendant under Section 180. It was observed at page 511 that

'in order to determine the real nature of the relief claimed, we have to consider the averments in the plaint and the pith and substance of the relief claimed and not the form in which it has been couched..... Having regard to its real nature the Suit was barred from the cognizance of the civil Court'.

The real nature of the suit was disclosed in the plaint itself on this case, but the observations would apply with equal force even if the real nature is concealed. By using the words 'real nature' the learned Judge meant the real cause of action; it happened that the real cause of action was stated in the plaint, but it might have been concealed and the result would still have been the same.

In passing I would note that the suit was dismissed instead of the plaint being returned and this Court refused to interfere. Since from the allegations in the plaint itself it was clear that a revenue Court had jurisdiction, the plaint could, and should, have been returned for presentation to a revenue Court. In Nageshwar Ram v. Bans Bahadur Singh : AIR1950All532 , Agarwala J. followed the case of : AIR1946All379 . In the case of : AIR1952All496 , Beg J. observed at p. 203 (of All LJ): (at p. 498 of AIR).

'A plaintiff, however, cannot give either the civil Court or the revenue Court jurisdiction by making false allegations in his plaint. The jurisdiction of civil and revenue Courts cannot be concurrent but depends on the allegations made in the plaint provided that those allegations are established to be true.'

I may add that jurisdiction lawfully assumed may be lost on certain facts being proved by the defendant, even though the facts alleged in the plaint are all true. Incompleteness of a cause of action may be as fatal a defect as a misstatement of a cause of action. The decision of Agarwala and Chaturvedi JJ. in : AIR1953All729 , also lends support to the view that a plaintiff cannot confer jurisdiction upon a Court by suppression of facts.

5. The period of limitation for a suit under Section 180 or Section 183 is laid down in second schedule of the Act. That for a suit under Section 183 is three years and that for a suit under Section 180 is two years, three years, six years or twelve years depending upon circumstance. The right of a person to sue for possession is barred if the period of limitation expires without the suit being brought; this consequence is automatic on the lapse of the time and arises whether the suit would have been brought in a civil Court or in a revenue Court.

When a cause of action accrues, there is certain period of limitation prescribed for filing a suit on it and if a suit is not filed within the period of limitation, the cause of action is extinguished and no suit can be filed subsequently. The extinction of a cause of action by efflux of time is thus dependent solely upon the period of limitation, which depends solely upon the cause of action.

It follows that within what period a suit should be filed cannot possibly depend upon the allegations to be made in the plaint and the automatic consequence of the non-filing of a suit is wholly irreconcilable with the plaintiff's choice of allegations to be made in the plaint. It is evident that when one is considering the effect of the non-filing of a Suit, what allegations might have been made if a suit had been instituted is wholly irrelevant.

6. It was held in : AIR1950All407 ; Rudan v. Ujagar Singh : AIR1953All733 ; Jagdish Singh v. Mehi Lal, 1950 All LJ 645 (L); Lal Bahadur Singh v. Suraj Pal Singh : AIR1946All486 and : AIR1931All663 , that a civil Court has jurisdiction to decide a Suit under Section 9, Specific Relief Act, in spite of the provisions of Section 242, U. P. Tenancy Act. The case of Khushund Husain (D), was decided under the old Agra Tenancy Act and may be left out of consideration.

In the other cases it was not considered whether a plaintiff has a choice of Courts and of allegations to be made in the plaint and can by suppressing or twisting the facts of real cause of action file a suit in a Court other than that in which a suit based on the real cause of action would lie. The effect of the limitation expiring without a suit being filed and how the effect can be ascertained if the limitation is made to depend upon allegations to be made in the plaint were also not considered.

In : AIR1950All407 , Agarwala J. with the concurrence of Bhargava J. brushed aside, as arising out of confusion of thought, the contention that the cause of action in respect of which the suit was instituted was one in respect of which relief could be claimed under Section 180 or 183, U. P. Tenancy Act, though no allegations bringing the suit under either of them were made, and observed at page 409 that

' 'a cause of action' is the sum total of all those allegations upon which the right to the relief claimed is found,'

that an allegation of title as an owner or a tenant is essential in a suit under either of the sections and that in the absence of the allegation no relief can be claimed under either of them. The question arising under Section 242, U. P. Tenancy Act, is not whether any relief under the U. P. Tenancy Act can be obtained on the allegations made in the plaint but whether any relief under it can be obtained on the real cause of action by making appropriate allegations in the plaint.

The provisions of Section 242 would be set at naught if the contention that the jurisdiction of a civil Court to hear a suit was barred under the provisions, were to be repelled merely by saying that on the allegations actually made no relief could be obtained under the U. P. Tenancy Act. The test laid down by our learned brother namely that of the allegations actually made is contrary to the view expressed in the earlier cases that the real facts decide the forum.

In the case of Jadu Nath Singh v. Bishunath Singh, ILR (1951) 2 All 16 (N) Misra and Chandiramani JJ. went even a step further and held that a suit would lie under Section 9, Specific Relief Act, in a civil Court even if the plaint contained allegations showing that a suit could be brought also under Section 180, U. P. Tenancy Act. The provisions of Section 242, U. P. Tenancy Act, were not considered at all.

It appears that the only question raised before the learned Judges, and decided by them, was whether a suit can be brought by a landlord when his tenant has been dispossessed. Brij Mohan Lall J. held in Ram Lakhan v. Tulsha : AIR1954All199 , that if the only allegation made in a plaint is that the plaintiff was previously in possession and was dispossessed by the defendant without his consent and unlawfully, it can be filed under Section 9, Specific Relief Act, even though it relates to agricultural land.

The learned Judge simply relied upon the case of : AIR1950All407 , and did not consider the provisions of Section 242, U. P. Tenancy Act. The jurisdiction of a civil Court is excluded not on the ground that the Suit relates to agricultural land but on the ground that a relief in respect of the cause of action can be obtained by a suit under the U. P. Tenancy Act.

The reason given by Braund, J., in : AIR1946All486 for holding that a suit under Section 9 of the Specific Relief Act is not barred by Section 242 is that the cause of action for it is different from that for a Suit under section 180 or 183 and that a plaintiff has to allege many more facts in a suit under Section 180 or 183 than in a suit under Section 9, Specific Relief Act.

With great respect to the learned Judge I do not agree that a mere difference between the two causes of action is conclusive; the learned Judge has not considered the provision in section 242 that a suit in a civil court is barred if on the cause of action a relief could be obtained in a revenue Court. The decision in 1950 All LJ 645 (L), is based on the same difference between the two causes of action.

Misra J. relied upon AIR 1946 AU 379 (FB) (F) and agreed that a plaintiff cannot confer jurisdiction upon a civil Court or a revenue Court by making false allegations in the plaint, yet decided the question of jurisdiction on the basis of allegations made in the plaint.

In : AIR1953All733 , Kidwai J., based his decision on the allegations actually made and did not consider what allegations could or ought to have been made and whether on the allegations that could or ought to have been made a relief could be obtained from a revenue Court or not. I respectfully disagree with these decisions which do not seem to interpret the provisions of Section 242, U. P. Tenancy Act, correctly.

7. Section 9, Specific Relief Act, certainly provides a speedy and summary remedy to a person who has been wrongfully dispossessed by another; but the ban imposed by Section 242, U. P. Tenancy Act, on a civil Court to entertain suit includes a suit even under Section 9, Specific Relief Act. If the jurisdiction of; a civil Court is barred, even a suit under Section 9, Specific Relief Act, cannot be filed; this was made clear by Sulaiman J. in the case of : AIR1931All663 .

8. If there is no cause of action for a suit in a revenue Court, Section 242 has no application and the jurisdiction of a civil Court would not be barred. Nurul Hansan v. Krishna Lal : AIR1951All581 , was such a case. The suit was for possession based on title but was brought by persons who were not entitled to admit the defendant to occupy the land in dispute (being only some of the co-sharers); according to the real cause of action no suit could be filed under Section 180 and, therefore, the jurisdiction of a civil Court was not barred.

9. The suit in the revision application. No. 126 of 1952, was clearly a fraudulent suit instituted to circumvent the provisions of the U. P. Acts Nos. 10 of 1949 and 7 of 1950. Not only had the plaintiff a cause of action in respect of which he could obtain relief from a revenue Court but also he had instituted a suit in a revenue Court for relief. Because he could not proceed with it, he instituted another suit under Section 9, Specific Relief Act, concealing the real cause of action. The jurisdiction of the civil Court was barred from the very beginning and under no circumstances could it revive.

10. There is no substance in the plea advanced by Sri V. K. S. Chaudhary in civil revision No. 1548 of 1951 that the suit was barred by Section 40 (2) of the Land Revenue Act. The Record Officer had only ordered the defendant's name to be entered in the khasra but had not put him into possession. As a matter of fact he had already found him to be in possession and it was on account of this fact that he had ordered his name to be entered in the khasra.

When he was already in possession, there arose no question of his being put into possession under Section 40 (2). Under Section 40 (2) no order as to possession can be called in question; the only order as to possession mentioned in Section 40 is the order putting a party, whose name is ordered to be entered in the khasra on the basis of a summary enquiry into title, into possession.

If a party has been found to be in possession and on this finding his name is ordered to be entered in the paper the order is of an entry of his name and cannot be said to be an order as to possession. The order as to possession means an order regarding possession as much as an order putting a party into possession. When only an entry is made, even though on the basis of possession, there is no order as to possession; there may be a finding as to possession but not an order.

It was held by Sulaiman and Pullan, JJ., in Ram Jas Singh v. Ram Harakh Pandey : AIR1930All305 , that an order as to possession includes an order maintaining a party's possession and ordering his name to be entered in the village records. With great respect I do not agree. Moreover Section 40(2) does not curtail the power of a civil court; its object is simply to preserve its power to decide a question of title. It does not mean that a civil court has no power except in regard to a case covered by Section 40(3). Therefore, a suit in a civil court would not be barred on the ground of anything contained in Section 40, Land Revenue Act.

11. The applicant also contended that since he was put into possession by the Record Officer, the dispossession of the plaintiff-opposite-party could not be said to be not in accordance with law. I have found that he was not put into possession by the Record Officer at all; he was in possession from before. So the dispossession of the plaintiff-opposite-party, if he was dispossessed, was otherwise than in accordance with law.

12. It has been found that in both the revision applications the plaintiffs-opposite-parties could not obtain relief from a revenue Court by means of a suit under Section 180 or 183, U. P. Tenancy Act, in respect of their dispossession by the defendants-applicants and, therefore, the jurisdiction of a civil Court was completely barred. Both the applications should be allowed.

Takru, J.

13. I agree and have nothing to add.

By The Court

14. We allow this application, set aside the decree of the trial Court and dismiss the suit with costs. On account of the uncertainty that prevailed in the law we leave the parties of this application to bear their costs themselves.


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