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Khushnud HusaIn Vs. Janki Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1931All663
AppellantKhushnud Husain
RespondentJanki Prasad and anr.
Excerpt:
- - shama kunwar but the lessee failed to obtain possession under it;.....me. if a suit were barred by the provisions of the tenancy act, it would be immaterial whether a civil suit is brought under section 9, specific relief act or under section 9, civil p.c.3. the law on this question has been laid down in the recent full bench case of in re ananti v. ghhannu : air1930all193 . in view of the law laid down therein, i must examine the plaint. the plaintiffs alleged that their grandfather sohan lal was the occupancy tenant and on his death he left three sons two of whom are since dead. the plaintiffs as the grandsons of sohan lal claimed the tenancy and alleged that mt. shama kunwar the widow of one of the sons of sohan lal had no right in it, although her name was fictitiously recorded in the revenue papers. the plaintiffs alleged that they were actually.....
Judgment:

Sulaiman, J.

1. This is an application in Revision from a decree of the Court below under Section 9, Specific Relief Act. The revision is filed on the ground that the suit was not cognizable by the civil Court but was one exclusively triable by the revenue Court. A preliminary objection is taken on behalf of the respondents that no revision lies inasmuch as there is another remedy open to the plaintiffs. Reliance is placed on the case of Jwala v. Ganga Prasad [1908] 30 All. 331 and Ram Kishen Das v. Jai Kishen Das [1911] 33 All. 647. In the former case the revision had been filed on the ground that the order of the Magistrate under Section 145, Criminal P. C, was a bar to a suit under Section 9, Specific Relief Act, and in the second case the ground was that the Court below had made a mistake of law in holding that the plaintiff was not entitled to sue. In neither of these cases the ground of revision was that the Court below had absolutely no jurisdiction to hear the suit. It seems to me that the fact that another remedy may be open to the plaintiffs may be a ground for the refusal to exercise the discretion in a fit case, but that would not oust the jurisdiction of the High Court to interfere in cases where the Court below has acted entirely without jurisdiction. The position would be different when the decree of the Court below is ultra vires. The High Court would ordinarily interfere in setting aside such an order.

2. I therefore overrule the preliminary objection. Coming to the merits of the revision it is no doubt proved that the property in dispute is an occupancy holding which is an agricultural land. The Court below has thought that the provisions of the Tenancy Act are not applicable to a case where the plaintiff comes to the civil Court under Section 9, Specific Relief Act, for recovery of possession. Its view is based on the fact that it is only a civil Court which can entertain a suit under that section. This argument does not appeal to me. If a suit were barred by the provisions of the Tenancy Act, it would be immaterial whether a civil suit is brought under Section 9, Specific Relief Act or under Section 9, Civil P.C.

3. The law on this question has been laid down in the recent Full Bench case of In re Ananti v. Ghhannu : AIR1930All193 . In view of the law laid down therein, I must examine the plaint. The plaintiffs alleged that their grandfather Sohan Lal was the occupancy tenant and on his death he left three sons two of whom are since dead. The plaintiffs as the grandsons of Sohan Lal claimed the tenancy and alleged that Mt. Shama Kunwar the widow of one of the sons of Sohan Lal had no right in it, although her name was fictitiously recorded in the revenue papers. The plaintiffs alleged that they were actually cultivating the land and were in possession of it, that a lease was obtained from Mt. Shama Kunwar but the lessee failed to obtain possession under it; then subsequently another lease dated 21st June 1929 was obtained by the defendant from Mt. Shama and under the pretence of having secured rights under this lease the defendant forcibly dispossessed the plaintiffs from their fields. The plaintiffs expressly alleged that Mt. Shama had no right whatsoever to this land and that the defendant is a trespasser. It was not expressly alleged in the plaint that the tenancy was a joint family tenancy or that the grandsons of Sohan Lal had succeeded to it to the exclusion of the widow Mt Shama Kunwar. But there can be no doubt that the plaintiffs did not admit that the defendant was in any way a subtenant holding the land from the plaintiffs. In this view of the matter there was no admission in the plaint which would show that the suit as brought was not cognizable by the civil Court,

4. Once the plaint was entertained the plaintiffs had to be pinned down to the allegations in their plaint and if those allegations wore not proved the suit would have to be dismissed. The Court below however has gone into the question of fact and has found that the plaintiff had been in possession within six months of the suit and were forcibly dispossessed by the defendant. On that finding it has accordingly given the plaintiffs a decree under Section 9, Specific Belief Act. This finding cannot be challenged in revision. The finding of the Court below is of course not final on the question of real title, which would have to be fought out in a subsequent litigation. The application is accordingly dismissed with costs.


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