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Babu Bharat Indu and ors. Vs. Khetsi Das - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.848
AppellantBabu Bharat Indu and ors.
RespondentKhetsi Das
Excerpt:
.....court, section 197 of that act was clearly intended by the legislature to prevent unnecessary litigation, and it was the duty of the lower appellate court to have taken action thereunder and to have decided the case..........appears that one pahlawan singh, a co-sharer in the village, was sued by another co-sharer named mulaim singh in respect of certain arrears of revenue. the exact nature of the suit has not been clearly put before the court. but it terminated in a decree for sale of pahlawan singh's share which was 10 biswa odd. pahlawan singh apparently borrowed money from the present defendant leaving in the latter's hand a certain sum where with to pay off mulaim singh. as security he mortgaged 5 biswas of his share. the defendant failed to pay off mulaim singh, and then subsequently brought a suit for sale upon his mortgage, obtained a decree, put the 5 biswa share to sale, purchased it himself, and took possession. mulaim singh then put the 10 biswa share to sale, purchased it, and took formal.....
Judgment:

Tudball, J.

1. This appeal arises out of a suit for profits brought by a co-sharer against a lambardar under Section 164 of the Tenancy Act in respect of the years 1313, 1314 and 1315 fasli. It appears that one Pahlawan Singh, a co-sharer in the village, was sued by another co-sharer named Mulaim Singh in respect of certain arrears of revenue. The exact nature of the suit has not been clearly put before the Court. But it terminated in a decree for sale of Pahlawan Singh's share which was 10 biswa odd. Pahlawan Singh apparently borrowed money from the present defendant leaving in the latter's hand a certain sum where with to pay off Mulaim Singh. As security he mortgaged 5 biswas of his share. The defendant failed to pay off Mulaim Singh, and then subsequently brought a suit for sale upon his mortgage, obtained a decree, put the 5 biswa share to sale, purchased it himself, and took possession. Mulaim Singh then put the 10 biswa share to sale, purchased it, and took formal possession. But when he came to mutation of names, was resisted by the defendant who claims to maintain possession of the share which he had purchased. On this Mulaim Singh brought a suit against the defendant in respect of the disputed share which resulted in a decree dated the 27th of June 1905 by the Munsif of Farrukhabad in favour of Mulaim Singh. It was then held that Mulaim Singh was the real owner of the share and not the defendant. In the meantime the defendant who had been in possession of that share had been elected lambardar of the village, Apparently the suit was appealed up to this Court but was not finally decided until 6th March 1908. The decision was in favour of Mulaim Singh. The Munsif's decree was obtained about the beginning of the year 1313 fasli. It is an admitted fact that the defendant continued to act as lambardar at least for the years 1313 and 1314 and that he remained recorded as lambardar in 1315 though whether or not he performed his duties is a disputed question. The present plaintiffs are co-sharers who had nothing whatsoever to do with the litigation between the defendant and Mulaim Singh. In the Court of first instance the defendant pleaded that he was not legally a co-sharer in the years in suit, and that, therefore, he was not legally a lambardar that no suit for profits would lie under Section 164 of the Tenancy Act, and that the Revenue Court had no jurisdiction to hear the suit. The Assistant Collector rejected this plea and gave the plaintiffs a decree for profits. On appeal the learned District Judge has held that though the defendant was in possession of the disputed share and had been elected lambardar, still he had no title to his share, and was, therefore, not a co-sharer within the true meaning of the term, that he had no right to the post of lambardar, and that the plaintiffs had only cause to sue in the Civil Court. He, therefore, held that the suit must fail and dismissed it with costs. In second appeal it is now urged, first of all, that the defendant was duly ejected as lambardar and was in possession of his share, and, therefore, the profits ought to be decreed against him as lambardar. Secondly, it is further urged, that even if the suit against him for money due was not within the jurisdiction of the Revenue Court, the case falls within the purview of Section 197 of the Tenancy Act, and the lower Court ought not to have dismissed the suit but should have taken action under that section and decided the suit between the parties. In view of the terms of Section 197 of the Tenancy Act, it is unnecessary to decide the other question which arises between the parties, though it seems to me that the defence raised by the defendant was not open to him as he had all along put himself forward as the owner of his share, that he had in that capacity been elected a lambardar, and I do not think that it could lie in his mouth now to deny the fact that he was responsible as lambardar, i.e., it seems to me that he is estopped from raising this plea. Be that as it may, it is clear that the plaintiffs were merely suing him for money which was theirs, and which was in his hands, and that, whether the suit lay under Section 164 of the Tenancy Act or in a Civil Court, Section 197 of that Act was clearly intended by the Legislature to prevent unnecessary litigation, and it was the duty of the lower Appellate Court to have taken action thereunder and to have decided the case accordingly. If there ate sufficient materials on the record, the District Judge can dispose of the appeal as if the suit had been instituted in the right Court. Clause (2) of that section enables him to remand the case if necessary after framing issues for trial. I, therefore, admit the appeal, set aside the decree of the lower Appellate Court, and order that the appeal be re-admitted to its original number and decided on its merits according to law. The appellants will have their costs in this Court in any event.


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