1. These four appeals arise out of two Suits No. 129 of 1928 and No. 6 of 1929 instituted by two groups of plaintiffs. The parties represent some members of five branches of the descendants of Raghubar Singh, who was their common ancestor. The claim related to numerous properties consisting of zamindaries, houses as well as tenancies. The case put forward by the plaintiffs in Suit No. 129 of 1928 was that they were entitled; to a one-fifth share in the properties in suit under an arbitration award dated 20th December 1916, on the basis of which a decree was passed on 5th January 1917, and they were in possession up to the time of the suit. The plaint was filed on 20th December 1928. The cause of action alleged in the plaint was 20th December 1927 when it was stated that the defendants had commenced to deny the plaintiffs' rights. Later on 20th March 1930, the plaintiffs with the permission of the Court got a new relief added which was in the following terms:
If in the opinion of the Court the possession of the plaintiffs over the said property is not proved then a decree for joint possession of one-fifth of the property etc., be passed in favour of the plaintiffs against the defendants.
2. In Suit No. 6 of 1929 the plaintiffs claimed that they were in possession of the properties in suit and also based their rights on the same award and decree. They claimed a declaration of title as regards three-fifths in the entire property and also asked from the very beginning an alternative relief that if for some reason the plaintiffs are considered to have been dispossessed then a decree for joint possession may be passed in their favour against the defendants. The plaintiffs alleged the date of their cause of action to be in September 1928, when the defendants denied their rights. In both these cases as the plaintiffs' principal case was that they were in possession up to the time of the suit, there was no specific allegation that they had in fact been dispossessed and accordingly there was no statement of the date of any such dispossession.
3. The contesting defendants in both the suits took up the position that the plaintiffs were not entitled to the properties claimed by them and also that the decree and award were not given effect to and were not binding on the parties and that the defendants had remained in adverse possession all along and the claim was barred by time. There was a further plea that the Civil Court had no jurisdiction to entertain the claim with regard to the tenancies. The learned Subordinate Judge has decreed Suit No. 129 of 1928 in part and dismissed the rest of the claim in that suit. He has however decreed Suit No. 6 of 1929 for the joint possession of the properties in its entirety except as regards the tenancies. The reason why the claims as regards the tenancies have been dismissed is that the Court is of the opinion that these claims were cognizable by the Revenue Court and not by the Civil Court and that therefore they could not be entertained by it. Both the sets of the parties have appealed and there are cross-appeals which account for the four appeals before us.
4. The plaints in both the suits were presented on 20th December 1928, though owing to the deficiency in the amount of the court-fees paid there was delay in registering one of the suits. Various pleas were raised by the defendants including those of limitation, adverse possession, Order 2, Rule 2, estoppel, Section 47, Civil P.C., want of jurisdiction and so on. The learned Subordinate Judge has overruled all these pleas except that as to want of jurisdiction regarding the tenancies. This is the main point before us. As already pointed out, the plaintiffs' case was that they were in possession of the properties up to the time of the suit, while the defendants' case was that they had never obtained possession even after the award and the decree. The finding of the lower Court is as follows:
In these cases I may say at once that merely declaratory decree is out of question, for the plaintiffs are certainly not in possession of the properties in suit. If any decree can be passed then that will be for possession.
5. The learned Judge has not referred expressly to the evidence on which he relies for the finding that the plaintiffs are not in possession. He has also not expressly held on what dates they were actually dispossessed. The finding therefore is defective.
6. The Court below has relied on the Full Bench cases of this Court in Sahdeo v. Budhai : AIR1929All571 and Ananti v. Chhannu : AIR1930All193 in which it has been clearly held that a suit for recovery of possession of tenancies by a person claiming to be a co-tenant or rival tenant against another tenant is not cognizable by the Civil Court but by the Revenue Court only. The learned advocate for the appellants relies strongly on a recent case decided by a Division Bench of this Court in Sukhdeo v. Basdeo : AIR1935All594 . That case however is easily distinguishable. At p. 584 the learned Judges had pointed out that at the trials the plaintiffs abandoned their claims for partition and prayed only for a declaration that those holdings were the property of the joint family and the plaintiffs' share in the same was to the extent of half, and the Court below held that it had jurisdiction to grant that relief to the plaintiffs.
7. It was again pointed out at p. 586 that in the suit before the Bench, the plaintiffs alleged and proved that they were members of the joint Hindu family with the defendants and were as such entitled to a declaration of their right as to zamindari properties and tenancy holding's owned by the family, and for partition of the moveables and cash belonging to the family. The cause of action on which the suit was based was therefore one in respect to which adequate relief could not be granted by the Revenue Court and the suit was rightly entertained by the Civil Court. Where the plaintiffs are alleging that they constitute a joint Hindu family and the property in suit is joint family property and the claim is either for partition of such property or for a mere declaration, the position is obviously different. The cause of action for the declaration or partition is one. Further, the property is owned by one unit consisting of the joint Hindu family and there is no question of there being co-tenants or rival tenants. It would also be convenient that the rights of the parties as regards the entire family property should be disposed of in one suit, although the Civil Court would not be able to grant any relief for partition or possession as regards the tenancies and can merely declare that they form part of the joint family property. In the present case both the plaintiffs admit that they are separate from the defendants. It is nobody's case that the tenancies in dispute belong to any joint Hindu family. The several sets of claimants therefore are rival tenants, one set claiming to be co-tenants and the other claiming to be exclusive tenants. Such a case therefore is governed by the Full Bench rulings Sahdeo v. Budhai : AIR1929All571 and Ananti v. Chhannu : AIR1930All193 referred to above and is distinguishable by the Division Bench ruling in Sukhdeo v. Basdeo : AIR1935All594 .
8. On the finding that the plaintiffs were not in possession at the time of the suit, their primary claim for a mere declaration of title would have failed; but their alternative claim for joint possession cannot fail simply on that ground. It is urged on behalf of the defendants that the suits having been brought at a time when the new Agra Tenancy Act was in force, the plaintiffs could not claim joint possession through the Civil Court. It has to be conceded that if the plaintiffs had been dispossessed from these tenancies previous to the coming into force of the Agra Tenancy Act, No. 3 of 1926, namely prior to 6th September 1926, then their rights were governed by the old law, and the period of limitation applicable would be 12 years from the date of dispossession, as was laid down by the Full Bench in Ram Karan Singh v. Ramdas Singh : AIR1931All635 . If however the plaintiffs were dispossessed after the coming into force of the new Act then the position might be different. Unfortunately there is no clear finding by the Court below on this point.
9. We must however dispose of two points which were raised on behalf of the defendants. One position taken up by them was that the award and the Civil Court decree were never given effect to and are therefore not binding on the parties. Such a plea cannot be entertained. The Civil Court's decree must govern the rights of the parties and must be conclusive as between them. It is not open to any person who is a party to a decree or for his representative to deny the effect or the validity of such a decree unless and until such decree is set aside on the ground of fraud or any other ground. This point therefore fails. The second point urged on behalf of the defendants was one of adverse possession. That also must fail so far as the properties covered by the previous Civil Court decree are concerned. That decree was a decree for a joint possession in favour of some members of the family and it was one for a declaration of title in favour of others. It is admitted that those who obtained a decree for joint possession executed their decree and obtained symbolical possession. Those who obtained a mere declaration of title did not possess any executable decree and it was not necessary for them to get their decree executed. As regards all such plaintiffs it must be taken that on the date when the Civil Court passed the decree or on the date when possession was delivered they obtained possession and title effectively. If in fact the defendants did not hand over possession to them, then the plaintiffs must be deemed to have been dispossessed from after the date of delivery of possession or the date of the declaratory decree as the case may be. If the defendants dispossessed them on any subquent date then the dispossession must be deemed to have taken place on such dates. We accordingly send down the following issue to the Court below for decision:
Were the plaintiffs or any of them dispossessed by the defendants, if at all, from any of the tenancies in suit; and if so, when?
10. As the issue was not framed in such express terms by the Court below, we direct that the parties should be at liberty to produce fresh evidence, if so advised, on this issue. The finding of the lower Court should be returned within three months from this date, if convenient. The usual ten days will be allowed for objections. The respondents in F. A. No. 393 of 1930 will not be allowed to produce fresh evidence unless and until they have made good the deficiency due from them in this Court.
(On receipt of the finding from the lower Court, the High Court delivered the following judgment.)
Bennet, Ag. C.J.
11. These are four appeals, two by plaintiffs 353 and 393 of 1930 and two by defendants 386 and 387 of 1930 against the judgments of the learned Subordinate Judge of Jaunpur in two Suits Nos. 129 of 1928 brought by one set of plaintiffs and No. 6 of 1929 brought by another set of plaintiffs. The facts of the case have already been set out by the order of a bench of this Court dated 24th February 1936 by which various points in the appeals were decided and a remand was ordered for a decision of the following issue by the Court below:
Were the plaintiffs or any of them dispossessed by the defendants, if at all, from any of the tenancies in suit and if so, when?
12. The finding on remand is that both sets of the plaintiffs were dispossessed in the month of Asarh (June) 1925 A.D. from all the tenancies in suit. Objection was taken on behalf of the defendant to this finding and learned Counsel argued that the Court should have paid more attention to the allegations in the plaints that the plaintiffs were in possession on the date of suit. Now the Court found that the plaintiffs had been dispossessed and the mere allegation in the plaints that the plaintiffs were in possession has no bearing on the date of dispossession. The Court gave very good reasons for concluding that the dispossession was in June 1925 and not as alleged by the defendants in November 1928. In November 1928 there were crops standing on the tenancy plots in suit and it was not probable that plaintiffs would give up possession of those plots without some reason; but no reason was shown for the plaintiffs to give up possession at that period and the suggestion of the defendants was that the plaintiffs abandoned their plots. This was prima facie improbable. The evidence therefore for the plaintiffs was supported by the probabilities of the case and we consider that the Court below was correct in finding that dispossession of the plaintiffs was in June 1925. That dispossession was prior to the coming in force of the Agra Tenancy Act, Act 3 of 1926, which came in force in September 1926. As already held by the order of remand in that case jurisdiction lay in the Civil Court.
13. Learned Counsel for defendant referred to a Full Bench ruling in Ram Karan Singh v. Ramdas Singh : AIR1931All635 and he argued that under this ruling as the plaint did not allege dispossession on a date prior to the Act of 1926, therefore jurisdiction did not lie in the Civil Court. But as is shown on page 1021, in that case the plaintiffs had alleged in the plaint that they were in possession and it was only at the time of the argument that the plaintiffs had added an alternative relief for possession if they were found to be out of possession, no date being assigned for the possession. In the present case the plaint had such an alternative relief from the date of filing the plaint. In the ruling it was held on p. 1036 that jurisdiction lay in the Civil Court. Accordingly therefore following the ruling we hold that in a case like the present the Civil Court has jurisdiction.
14. The title of the plaintiffs has been held to exist by the order of remand and the dispossession by the defendants in 1925 was within a short period of the plaints which were filed on 20th December 1928 and that therefore the suits were brought within the period of limitation. Some argument was made by learned Counsel that an issue of the pleadings under Order 2, Rule 2, Civil P.C., had not been decided by the lower Court, but that is incorrect as we find that this was decided on p. 78 of the paper book in F.A. No. 353 of 1930, and at line 11 it is stated 'so the suits are not barred in my opinion under Order 2, Rule 2, Civil P.C., with respect to any property'. The Court therefore paid attention to the tenancy property as well as to the zamindari property. Learned Counsel has not shown any reason why we should differ from that finding. No other point was urged for the appellant defendants. In ground No. 5 of F.A. No. 353 of 1930 it is set out that 'plots Nos. 44 and 76' should have been decreed as they are different from other tenancy plots. The Court below did not allow Nos. 44 and 76 for reasons that No. 44 was barred by the rule of res judicata : (p. 78) (p. 79). Item 44 is shown in the plaint as shares in zamindari property and not tenancy plots. No. 76 is one-fifth share of a certain fixed rate tenancy but it has been held by the Court below that that has been redeemed and is not in possession of the defendants and therefore a decree would not be granted for it. The appellant-plaintiffs have not pressed their appeal in respect of these two items.
15. The result is that we decree plaintiffs' Appeal No. 393 of 1930 for the tenancy in full with costs and we decree the plaintiffs' Appeal No. 353 of 1930 for the tenancies other than the share of No. 76 in the plaint and other than No. 44, which is not a tenancy in the plaint, with proportionate costs. The two appeals of defendants Nos. 386 of 1930 and 387 of 1930 are dismissed with costs.