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Mt. Mubarak Bano and anr. Vs. Ali Raza and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1928All556
AppellantMt. Mubarak Bano and anr.
RespondentAli Raza and ors.
Excerpt:
- .....not bound to grant a declaratory decree simply upon the ground that it is lawful for plaintiff to claim a declaratory relief. in view of the circumstances set out above it seems to me that the plaintiffs' claim was liable to dismissal in the exercise of the discretion which reposes in the court that in the present instance no declaratory decree should he passed although, the matter is obvious, it may not be out of place to refer to a number of authorities in support of the proposition that it is not open to any party to evade the provisions of section 167, agra tenancy act, by merely altering the form of a relief: see kundan lal v. prasadi a.i.r. 1914 all. 744; ajudhia puri v. brij bhukhan [1919] 17 a.l.j. 922; jagannath v. balwant singh a.i.r. 1922 all. 372 and murtaza v. zia-ul-hasan.....
Judgment:

Sen, J.

1. This is plaintiffs' appeal. The suit was one for a declaration that the plaintiffs are entitled to get Rs. 492-8-0 being two thirds of Rs. 738-12-0, which had been deposited in the Court of the Munsif of Bareilly by the judgment debtor in Suit No. 122 of 1921 in re: Baqar Raza v. Nazir Husain.

2. The plaintiffs and Mt. Haidri Banu were cosharers in the same mahal or mahals of which Mt. Haidri Banu was the lambardar. Mt. Haidri Banu had engaged the services of one Nazir Husain to make collections in the mahal or mahals on her behalf. Certain collections were made by Nazir Husain and were not handed over to Mt. Haidri Banu. The lady in the meantime died. She was succeeded by Baqar Raza and the other defendants to the present action. Baqar Raza instituted a suit against Nazir Husain for the recovery of the unpaid collections. The suit was numbered and registered as Suit No. 122 of 1921 and a decree for Rs. 738-12-0 was passed in favour of Baqar Raza. Nazir Husain deposited this amount in Court.

3. The plaintiffs allege that this sum of Rs. 738-12-0 includes the plaintiffs' share of profits in the mahal or mahals for certain years and they are entitled to recover the same.

4. The suit was resisted inter alia on the grounds that it was not cognizable by the civil Court, that it is barred by time, that the suit was misconceived and that it was legally not maintainable.

5. The learned Munsif who had primarily the seisin of the case held that the suit was exclusively cognizable by the revenue Court and directed the return of the plaint for presentation to the proper Court. The plaintiffs appealed and the learned District Judge (Mr. Saksaina) held that the suit was not a suit for profits; the relief claimed was purely declaratory, that the defendant was sued in the capacity of a lambardar and consequently the suit was triable by the civil Court. He accordingly reversed the order of the Munsif and remanded the case for trial on the merits.

6. On remand the Munsif held that the suit, as framed, was certainly cognizable by the civil Court and, therefore, it had been decided by the appellate Court that the suit was cognizable by the civil Court and on that basis it had directed a remand.

7. On appeal the case was heard by the successor of Mr. Saksaina, Mr. Plowden. He held that the suit was in substance a suit for profits and the civil Court had no jurisdiction to entertain the suit and he further held that the mere fact that Baqar Raza succeeded in obtaining a decree for the recovery of collections from the hand of the agent of the lambardar does not afford the present plaintiffs a cause of action to maintain the present suit. The judgment of the lower appellate Court is not clear or very happily worded but I consider this to be the trend of the decision. The lower appellate Court, therefore, on these findings affirmed the decision of the trial Court and dismissed the appeal.

8. In second appeal it is contended before me and there appears to be considerable force in the contention advanced by Mr. Akhtar Husain that the question of jurisdiction having been raised and decided by Mr. Saksaina sitting as a Court of appeal and that decision not being open to appeal it was final and conclusive between the parties. Whether this decision was right or wrong, the parties were bound by it, and the matter could not be re-agitated at a subsequent stage of the case nor was it open to Mr. Plowden to reverse the decision of Mr. Saksaina on this point. It must be remembered that he was not sitting as a Court of appeal on the judgment of his predecessor. Whether that judgment be right or wrong is a matter with which we are not concerned. It is a judgment inter partes and it is final and it has got to be given effect to with all the consequences and implications. Under the circumstances I unhesitatingly come to the conclusion that for the purpose of the present suit, it must be held that the civil Court had jurisdiction to entertain the present suit.

9. The learned Counsel for the respondents attempts to sustain the decree of the lower appellate Court upon a very different ground. His contention is that the mere fact that the civil Court has jurisdiction to entertain a declaratory suit does not preclude the said Court from throwing out the claim upon any other grounds. The claim as brought was a declaratory suit. It may be conceded that a declaratory suit, unless there is a distinct statutory bar, should ordinarily be instituted in the civil Court, but there is nothing to preclude the civil Court from dividing beneath the surface and finding out for itself the real nature and scope of the suit irrespective of the form in which the suit has been brought.

10. Under Section 167, Agra Tenancy Act, all suits and applications of the nature specified in the fourth schedule are exclusively triable by the revenue Courts except to the extent the said rule is qualified. A suit for profits by a cosharer against a lambardar has been specifically provided for in Section 164, Agra Tenancy Act, and it is exclusively cognizable by a Court of revenue.

11. The plaintiff's allege that they are the cosharers in the mahal and that defendant 3 and the other defendants are the heirs or the representatives of the deceased lambardar Mt. Haidri Banu. The plaintiffs made no concealment of the fact that this sum of Rs. 492-8-0 which is claimed in the present action represents their share of the profits as cosharers which they are entitled to recover from the heirs and representatives of the deceased lambardar. It is permissible for a Court of law to examine the allegation contained in the plaint in the light of the surrounding circumstances with a view to find out what is the real nature of the claim, what is the real contest between the parties and what is the real object of the suit. An examination of the plaint discloses that the real object of the suit is to equip the plaintiffs with a weapon whereby the plaintiffs may be able to walk into the execution Court holding the sum of Rs. 738-12-0 in their hands and claim two-thirds out of it as being the plaintiffs' share of profits for certain years due from the lambardar or the representatives of the deceased lambardar. A party cannot merely by altering the form of a suit or changing the form of a relief contravene or evade the provisions of Section 167, Agra Tenancy Act.

12. This being the nature of the suit, although in form it was a suit for a declaration of the plaintiffs' right with regard to a specific sum of money lying in deposit in a certain Court, the Court had to remember whether a declaration should, under the circumstances be allowed. What are the points which would come up before the Court for decision? The first point to which the Court will have to address itself is whether the plaintiffs are cosharers; and are entitled to claim this sum of money from the defendant, the deceased lambardar, or the representatives of the lambardar as being the plaintiffs' share of the profits. The next question the Court will have to determine would be as to whether the plaintiffs' claim to profits is within limitation. It would be impossible for the civil Court to dispose of the plaintiffs' case on the merits without going into the questions which are exclusively determinable by a Court of revenue.

13. The declaratory relief is a specific relief. A Court is not bound to grant a declaratory decree simply upon the ground that it is lawful for plaintiff to claim a declaratory relief. In view of the circumstances set out above it seems to me that the plaintiffs' claim was liable to dismissal in the exercise of the discretion which reposes in the Court that in the present instance no declaratory decree should he passed Although, the matter is obvious, it may not be out of place to refer to a number of authorities in support of the proposition that it is not open to any party to evade the provisions of Section 167, Agra Tenancy Act, by merely altering the form of a relief: see Kundan Lal v. Prasadi A.I.R. 1914 All. 744; Ajudhia Puri v. Brij Bhukhan [1919] 17 A.L.J. 922; Jagannath v. Balwant Singh A.I.R. 1922 All. 372 and Murtaza v. Zia-ul-Hasan A.I.R. 1921. All. 59.

14. In view of what has been said above I dismiss the appeal with costs.


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