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(Lt. Raja Misra) Kali Charan Vs. Bholi Bakhsh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All711
Appellant(Lt. Raja Misra) Kali Charan
RespondentBholi Bakhsh and anr.
Excerpt:
.....had reference, amongst others, to plot 176, appears to me to be perfectly correct. 10. as already pointed out the revenue court did clearly hold that the suit was not triable by that..........(no. 176) by ejectment of the defendants. the plaintiff's case was that he was the zamindar of the plot in dispute and the defendants were tenants-at will of the said plot which was being used by them for the purpose of keeping a tal. the plaintiff alleged that, notwithstanding the fact that he had given a legal, notice to the defendants calling upon the latter to vacate the plot, the defendants did not sever their connexion with the plot and did not deliver possession to the plaintiff.2. the defence to the suit was that the plot in dispute was part of the occupancy holding of the defendants, and was being held for agricultural purposes and that the relationship of landholder and tenant existed between the parties to the suit, and, as such, the suit was not cognizable by the civil court......
Judgment:

Iqbal Ahmad, J.

1. This is a plaintiff's appeal and arises out of a suit for possession of a plot of land (No. 176) by ejectment of the defendants. The plaintiff's case was that he was the zamindar of the plot in dispute and the defendants were tenants-at will of the said plot which was being used by them for the purpose of keeping a tal. The plaintiff alleged that, notwithstanding the fact that he had given a legal, notice to the defendants calling upon the latter to vacate the plot, the defendants did not sever their connexion with the plot and did not deliver possession to the plaintiff.

2. The defence to the suit was that the plot in dispute was part of the occupancy holding of the defendants, and was being held for agricultural purposes and that the relationship of landholder and tenant existed between the parties to the suit, and, as such, the suit was not cognizable by the civil Court. It was also pleaded by the defendants that inasmuch as a former suit brought by the plaintiff for the ejectment of the defendants from the plot in dispute and from certain other plots was dismissed by the revenue Court, the decision of the revenue Court operated as res judicata and was a bar to the present suit. It was further contended by the defendants that the suit was barred by 12 years, rule of limitation and by Section 115, Indian Evidence Act.

3. The trial Court overruled all the pleas urged in defence and decreed the plaintiff's suit. On appeal by the defendants, the lower appellate Court held that 'the defendant is the tenant of the plot in suit' and 'that the present suit is not cognizable by the civil Court' and on these findings reversed the decree of the trial Court and' dismissed the suit. In appeal before me it is argued on behalf of the plaintiff-appellant that the lower appellate Court was wrong in holding that the relationship of landholder and tenant existed between the parties to the suit with respect to the plot in dispute, and that the suit was not cognizable by the civil Court. In my judgment the contention of the learned Counsel for the appellant is perfectly correct and ought to prevail.

4. In the year 1921 the plaintiff appellant filed a suit for ejectment against the present defendants in the revenue Court under Sections 57(b) and 57(d). Agra Tenancy Act (Act 2, 1900. The plaintiff appellant prayed for ejectment of the defendants from a number of plots including the plot in dispute, and his allegation in the plaint filed in the revenue Court was that the defendants were using some of the plots for purposes inconsistent with the purpose for which the plots were let and further that they had sublet the remaining plots in contravention of the provisions of the Agra Tenancy Act and as such the defendants were liable to ejectment from all the plots. All the plots from which the defendants were sought to be ejected were detailed at the foot of the plaint and as against the plot in dispute it was clearly noted that the same was a tal. Two of the plots were shown as baghicha (grove). One plot was shown as abadi.

5. The defendants contested the suit in the revenue Court inter alia on two grounds: (1) That the suit was time-barred and (2) that the suit was not cognizable by the revenue Court.

6. On the pleadings of the parties in the revenue Court the following two issues were framed by that Court:

(1) Is the suit time barred and (2) 'is the suit not tenable in the rent Court

7. The finding of the revenue Court on both the issues was in favour of the defendants. On the second issue the learned Assistant Collector summarized his conclusions as follows:

It is clear that part of the holding is not agricultural land and no evidence has been produced to show that it was let for agricultural purposes.

8. It is no doubt a fact that in the written statement filed in the revenue Court the defendants did not state the grounds of the contention advanced by them that the revenue Court had not jurisdiction to try the suit. But having regard to the finding of the learned Assistant Collector on issue 2, noted above there cannot be the slightest doubt that the contention of the defendants was based on the ground that some of the plots in dispute in the suit were not let or used for agricultural purposes. As already stated a reference to the plaint in the ejectment suit shows that some of the plots were shown in the plaint as not being used for agricultural purposes and, therefore, the conclusion arrived at by the learned Munsif that the plea of the defendants that some of the plots in dispute were not used for agricultural purposes had reference, amongst others, to plot 176, appears to me to be perfectly correct. The allegation contained in the plaint that plot 176, was being used for the purpose of keeping a tal was not denied in the written statement and, therefore, if must be presumed that the defendants in the revenue. Court maintained that the plot in dispute was not let or used for agricultural purposes. The question that then remains for consideration is: Can the defendants having successfully pleaded in the revenue Court that the plaintiff was not entitled to maintain a suit for ejectment of the defendants from the plot in dispute now be permitted to resist the suit filed in the civil Court on the ground that the civil Court has no jurisdiction to try the suit. In my judgment the answer to the question must be in the negative. That the plaintiff is the zamindar of the plot in dispute admits of no doubt. That he must have a remedy either in the civil or in the revenue Court is equally clear. The defendants having successfully denied the jurisdiction of the revenue Court must submit to the jurisdiction of the civil Court. This was the view taken by this Court in the case of Raj Mangal Sahu v. F. Mackinnon [1918] 18 I.C. 875.

9. The lower appellate Court was of opinion that all that was decided by the revenue Court in the ejectment suit filed by the plaintiff was that the suit was time barred and that the revenue Court did not decide that the suit was not cognizable by that Court. The lower appellate Court was obviously wrong in proceeding on the above assumption.

10. As already pointed out the revenue Court did clearly hold that the suit was not triable by that Court.

11. As the decision of the lower appellate Court proceeds on a preliminary point and as I am in disagreement with that Court I must allow the appeal, set aside the decree of the Court and remand the case with directions to re-admit the appeal to its original number and to dispose of it according to law. It is to be noted that all the other pleas urged in defence by the defendant-respondents have to be determined by the lower appellate Court. Costs here and hitherto will be costs in the cause and shall abide the result.


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