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Bhola Ojha and anr. Vs. Dhaneshwar Ojha and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All677
AppellantBhola Ojha and anr.
RespondentDhaneshwar Ojha and anr.
Excerpt:
.....held by a full bench of this court in ramkaran singh..........115, civil p.o. it arises in the following circumstances. the plaintiffs bhola ojha and deo narain singh instituted a suit in the court of the munsif of ballia, claiming possession over a holding of 14 bighas and 16 biswas with a declaration that a sale deed executed on 7th august 1931 in respect of the holding in dispute by one mt. parbati kunwari was null and void and did not affect their rights. it was claimed in the alternative that even if it is found that mt. parbati kunwari inherited the holding in dispute from her husband ram narain singh, still it should be declared that the sale deed executed by her was invalid inasmuch as it was not supported either by legal necessity or by consideration and was consequently not binding on the plaintiffs. the facts alleged by the.....
Judgment:
ORDER

Mulla, J.

1. This is a plaintiffs' application in revision under Section 115, Civil P.O. It arises in the following circumstances. The plaintiffs Bhola Ojha and Deo Narain Singh instituted a suit in the Court of the Munsif of Ballia, claiming possession over a holding of 14 bighas and 16 biswas with a declaration that a sale deed executed on 7th August 1931 in respect of the holding in dispute by one Mt. Parbati Kunwari was null and void and did not affect their rights. It was claimed in the alternative that even if it is found that Mt. Parbati Kunwari inherited the holding in dispute from her husband Ram Narain Singh, still it should be declared that the sale deed executed by her was invalid inasmuch as it was not supported either by legal necessity or by consideration and was consequently not binding on the plaintiffs. The facts alleged by the plaintiffs upon which the above reliefs were claimed may briefly be stated as follows : The holding in dispute which is admittedly a fixed rate holding was the joint ancestral property of a family descended from one Moti Singh who had two ions named Dukhra Singh and Damri Singh. Dukhra Singh had two sons named Deo Narain Singh, who is one of the plaintiffs, and one Sita Ram Singh, who years ago renounced all his civil rights and turn. rui a sadhu, Damri Singh had a son named Ram Narain. Singh who died years ago, leaving him surviving a widow named Parbati Kunwari. It is alleged that the holding in dispute descended to Ram Narain Singh and the plaintiff Deo Narain Singh as joint family property and upon the death of Ram Narain Singh it passed by survivorship to Deo Narain Singh to the exclusion of Parbati Kunwari who had nothing more than a Hindu widow's right of maintenance. It is not alleged in the plaint that the plaintiff Deo Narain Singh ever came into possession of the holding on the death of Ram Narain Singh; nor is it stated on the other hand, that Parbati Kunwari obtained possession of the holding as the sole heir of Ram Narain Singh. The plaint however contains an implicit admission of the fact that the widow came into possession of the holding for it is alleged that the plaintiff Deo Narain Singh used to live for the most part in Hazaribagh in order to earn his living. It is admitted however that on 7th August 1931, Mt. Parbati Kunwari, the widow of Ram Narain Singh, executed a sale deed in respect of the holding in dispute in favour of defendant 1, Dhaneshar Ojha, for a sum of Rs. 700 though it is alleged that she had no power to do so inasmuch as she had not inherited the holding from her husband and also that she did so without having any legal necessity and without actually receiving any consideration for it. It is alleged in para. 7 of the plaint that defendant 2 in the suit, namely Adit Singh, also joined the widow in executing the said sale deed without having any right to do so.

2. On 4th January 1934, the plaintiff Deo Narain Singh executed a sale deed in respect of a half of the holding in dispute in favour of plaintiff 1, Bhola Ojha. Para. 8 of the plaint contains a very important admission which has a vital bearing on the decision of the case. The admission is that mi the strength of the sale deed dated 7th August 1931 executed by Parbati Kunwari and defendant 2, Adit Singh, an application was made by defendant 1, Dhaneshar Ojha, for his name being recorded in the jamabandi and in spite of an objection being taken by the plaintiffs it was allowed and his name was entered as a tenant of the holding, and this decision of the Revenue Court was confirmed in appeal by the Collector and also by the Commissioner. Having thus got his name entered in the revenue papers defendant 1, Dhaneshar Ojha, proceeded to take possession of the holding in dispute though he had no right to do so. This was alleged as a cause of action for the suit which was instituted on 13th April 1936 claiming the above mentioned reliefs. The defendants resisted the suit on various grounds including one to the effect that plaintiff 2, Deo Narain Singh, was not a member of the family of Moti Singh at all but was only an impostor who had been set up by plaintiff 1, Bhola Ojha. The real plea taken by the defendants with which we are concerned in this case however is that in view of the provisions of Sections 99, 121 and 230, Agra Tenancy Act, the Civil Court had no jurisdiction. The learned Munsif framed an issue on the question of jurisdiction and deciding it in favour of the defendants directed the plaint to be returned for presentation to the proper Court. This order has been confirmed in appeal by the learned Additional Civil Judge of Ballia. Hence this application in revision. The argument on behalf of the applicants is that the Courts below have erred in law in holding that the suit as framed was not cognizable by the Civil Court. It is contended that upon the allegations contained in the plaint the defendants are merely trespassers and a suit for ejecting a trespasser cannot be governed by Sections 99 and 121, Agra Tenancy Act, and clearly lies within the jurisdiction of the Civil Court. On the other hand, it is con. tended by the opposite parties that the cause of action disclosed by the suit is one in respect of which adequate relief could be granted by the Revenue Court under Sections 99 and 121, Agra Tenancy Act, and hence the Courts below were right in holding that the Civil Court had no jurisdiction. Several cases have been cited by learned Counsel for the opposite parties but reliance has been placed principally upon a decision by a Full Bench of this Court in Ananti v. Chhannu : AIR1930All193 . Upon a careful consideration of the arguments on both sides, I find that the contention of the opposite parties is sound and must prevail. In Ananti v. Chhannu a Full Bench decision of this Court, reported in Ananti v. Chhannu : AIR1930All193 it was held by the majority that

the jurisdiction of the Court is to be initially determined by the allegations made in the plaint and the allegations made in the written statement cannot oust that jurisdiction unless and until the allegations of fact have been gone into, tried judicially and found to be true and the plaintiff's allegations have been found to be false.

3. The first question for consideration, therefore, is whether upon the allegations contained in the plaint the reliefs claimed by the applicants did or did not fall within the purview of Sections 99 and 121, Agra Tenancy Act. The allegations contained in the plaint have already been set out above and in view of those allegations I think the answer must be in the affirmative. Taken as a whole, the allegations in the plaint 3how beyond any doubt that the defendants were persons claiming to be tenants of the holding in dispute and were consequently persons claiming under a title derived from the landlord. In para. 9 of the plaint it is no doubt alleged that the possession of the defendants was that of trespassers; but having regard to the admitted fact that they had preferred a claim to the holding as tenants and that claim had been upheld by the Revenue Courts, it cannot but be held that upon the allegations contained in the plaint itself they are persons claiming through the landholder and not mere trespassers. The real purpose and object of the suit clearly is that the plaintiffs-applicants want a declaration to the effect that they are the tenants of the holding in dispute as against the defendants opposite parties who claimed the same status and whose claim has been admittedly recognized by the Revenue Court. They further seek possession of the holding because they have been dispossessed. The declaration claimed by then that the sale deed executed by Mt. Parbati Kunwari is null and void and does not affect their right is only ancillary to the real declaration which they seek, namely that they have acquired the status of tenants in respect of the holding in dispute as against the opposite parties. Under the old Tenancy Act, suits between rival tenants? were held to be cognizable by the Civil Court but having regard to the changes effected by Section 99, Agra Tenancy Act of 1926, it is now well settled that such suits are cognizable by the Revenue Court alone. The declaratory relief which the applicants really seek could have been easily given to them by the Revenue Court under Section 121, Agra Tenancy Act, and the relief for possession could have been obtained by them under Section 99 of the Act. The Pull Bench case in Sahdeo v. Budhai : AIR1929All571 and others referred to above fully support this view.

4. Learned Counsel for the applicants laid some stress on the fact that the opposite parties were really persons claiming not through the landholder but through Mt. Parbati Kunwari. This contention has however little force in my opinion because the opposite parties claim to be tenants of the holding in dispute which clearly amounts to claiming a derivative title from the land, holder. It has been clearly held by a Full Bench of this Court in Ramkaran Singh v. Ram Das Singh (1931) 18 A.I.R. All. 935 that

the words claiming through in Clause (b) of Section 99, Agra Tenancy Act of 1926, mean holding a derivative title from the land-holder and so a suit for possession between co-tenants falls within the purview of Section 99.

5. The fact that the opposite parties rely for their title as tenants of the holding in dispute upon the sale deed executed by Mt. Parbati Kunwari cannot, in my opinion, alter the position that they claim a derivative title from the land-holder. If the sale deed upon which they base their claim is found to be invalid and inoperative the applicants will succeed in securing the reliefs which they claim from the Revenue Court. The fact however remains that the opposite parties are persons claiming to be tenants of the holding in dispute or in other words persons claiming a derivative title from the landlord and hence the suit lies exclusively within the jurisdiction of the Revenue Court in view of the provisions of Sections 99 and 121 read with Section 230, Agra Tenancy Act. The result therefore is that I uphold the order passed by the Courts below and dismiss this application with costs.


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