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Kunwar Jagdamba Singh and anr. Vs. Ram Sarup and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1937All415
AppellantKunwar Jagdamba Singh and anr.
RespondentRam Sarup and ors.
Excerpt:
.....ic 1858 overruled]. - the plaintiffs have clearly alleged in the plaint that defendants 1-3 are trespassers. it was clearly not a case in which a zamindar sued for ejectment of the defendant treating him as a trespasser. on the facts of that case however it is perfectly clear that the civil court could have no jurisdiction. it is perfectly clear that the relationship of landlord and tenant was not put an end to by actual ejectment of the tenant. the full bench clearly held that section 44 was enacted in order to allow facility to an owner of an agricultural land in seeking a speedy remedy through the revenue court, if the defendant had taken possession without his consent and if he is prepared to accept damages up to the maximum prescribed, and that it could not deprive the landlord..........a decree for ejectment had been passed. instead of executing the decree, the zamindar instituted a suit in the civil court on the strength of a formal delivery of possession given at the time when actual ejectment of the tenant was not permissible under the tenancy act. it was also found that the tenant continued in possession in spite of the so called delivery of possession. it is perfectly clear that the relationship of landlord and tenant was not put an end to by actual ejectment of the tenant. the decision in that case was put in the alternative. it was held that if the 'dakhal-namah' did not operate as a break in the tenancy of the defendant, he continued to be a tenant; and if it did the defendant was a trespasser, against whom a suit under section 44, tenancy act, was maintainable.....
Judgment:
ORDER

Niamatullah, J.

1. This is an application for revision under Section 115, Civil P.C., by the plaintiffs against an order passed by the learned District Judge, Mainpuri, upholding an order of a Munsif of that district returning the plaint for presentation to the revenue Court, which, according to the Munsif, is the proper Court to take cognizance of the suit. The plaintiff-applicants are some of the zamindars of the village in which the land in dispute lies. They took ejectment proceedings against a tenant and ejected him. Defendants 4 and 5, who are co-sharers of the plaintiffs, then granted a lease to defendants 1-3. The plaintiffs do not recognize these defendants as their tenants and seek to eject them as trespassers. The defendants, however, maintain that the lease granted by defendants 4 and 5 is valid having been granted by them with the concurrence of the plaintiffs. A preliminary question was raised in the trial Court as to whether the civil Court has jurisdiction to entertain the suit. The trial Court held that the suit was exclusively triable by the revenue Court. Accordingly it returned the plaint to the plaintiffs for presentation to the revenue Court. The plaintiff appealed from that order to the District Judge, who took the same view. In the present revision it is contended that the civil Court has jurisdiction and that the lower Courts were wrong in holding to the contrary.

2. The jurisdiction of the Court is primarily determined by the allegations contained in the plaint. The plaintiffs have clearly alleged in the plaint that defendants 1-3 are trespassers. The plaint goes on to allege that defendants 1-3 claim to hold the land under a lease granted by defendants 4 and 5, which lease is invalid. The lower Courts have held that the plaintiffs can take ejectment proceedings under Section 44, Tenancy Act, and therefore the civil Court has no jurisdiction. The lower Courts have relied on Dan Sahai v. Jairam Singh and Mt. Duiji Kunwar v. Baila Kunwar and have distinguished the Full Bench ease in Mohammad Muslim v. Maharania .

3. I may say at once that the case of Mt. Duiji Kunwar v. Baila Kunwar is not in point. It was a suit by persons claiming to be the heirs of a tenant for establishment of their right. It was clearly not a case in which a zamindar sued for ejectment of the defendant treating him as a trespasser. In Dan Sahai v. Jairam Singh certain observations occur which undoubtedly support the view taken by the lower Court. On the facts of that case however it is perfectly clear that the civil Court could have no jurisdiction. The suit was tried out, and it was definitely found that the plaintiff zamindar had not taken delivery of possession, though a decree for ejectment had been passed. Instead of executing the decree, the zamindar instituted a suit in the civil Court on the strength of a formal delivery of possession given at the time when actual ejectment of the tenant was not permissible under the Tenancy Act. It was also found that the tenant continued in possession in spite of the so called delivery of possession. It is perfectly clear that the relationship of landlord and tenant was not put an end to by actual ejectment of the tenant. The decision in that case was put in the alternative. It was held that if the 'dakhal-namah' did not operate as a break in the tenancy of the defendant, he continued to be a tenant; and if it did the defendant was a trespasser, against whom a suit under Section 44, Tenancy Act, was maintainable in the revenue Court. In either view, it was said, the civil Court had no jurisdiction. I was one of the Judges who decided that case but have no hesitation in saying that if our attention had been drawn to the case in Mohammad Muslim v. Maharania the second alternative ground, on which the decision was based, would have been omitted.

4. I would have referred the present case to a Division Bench if Dan Sahai v. Jairam Singh had been the only case of this Court in point. I however find that the Full Bench case, above referred to, is applicable and that I am bound to follow it in preference to the Division Bench ruling. The lower appellate Court has sought to distinguish the Full Bench case on the ground that the defendant in that case had pleaded that he was a tenant of the plaintiff and that no such plea has been taken in the present case. This is no distinguishable feature whatever. The Full Bench clearly held that Section 44 was enacted in order to allow facility to an owner of an agricultural land in seeking a speedy remedy through the revenue Court, if the defendant had taken possession without his consent and if he is prepared to accept damages up to the maximum prescribed, and that it could not deprive the landlord of his right to eject the defendant through the civil Court on the ground that he (the defendant) is a trespasser. It is true if the defendant pleads that he is a tenant of the plaintiff, the civil Court is bound to remit an issue to the revenue Court for a decision of the question as to whether the relationship of landlord and tenant exists between the parties.

5. Besides the Full Bench ruling already discussed, there is another Division Bench ruling Raji v. Ram Lagan which follows the Full Bench case and lays down that the suit by a landlord against a trespasser lies in the civil Court, and although Section 44 of the Act 3 of 1926, would also give a remedy with a limited amount of damages in the revenue Court, still Section 230 of that Act does not bar the jurisdiction of the civil Court. In this state of the authorities I have no difficulty in holding that the alternative ground, on which the decision in Dan Sahai v. Jairam Singh is bassed, is not correct, and being opposed to the Full Bench ruling of this Court cannot be treated as good law. Accordingly I allow this revision, set aside the orders of the lower Courts and remand the case to the Court of first instance with the direction that the suit be restored to its original number and disposed of according to law. Costs hitherto incurred shall abide the result.


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