1. This is a defendant's appeal arising out of a suit for joint possession of the plaintiff's share in certain tenancy lands.
2. The main defence put forward on behalf of the defendant was that these lands were not joint tenancies at all but belonged exclusively to the defendant and that the plaintiff was the defendant's sub-tenant.
3. The Court of first instance dismissed the plaintiff's suit but on appeal the decree has been set aside and the suit for joint possession decreed.
4. It was admitted that, prior to the institution of the present suit in the Civil Court, the defendant No. 1 brought a suit in the Revenue Court for ejectment of plaintiff Pratab under Section 58 of the Agra Tenancy Act claiming that Pratab was his sub-tenant. So far as the record before me goes, there is nothing whatsoever to show what ultimately happened in the Revenue Court.
5. Mr. Sastry on behalf of the defendant wanted to tender before me a certified copy of an order purporting to have been passed by the Revenue Court on the 13th of May 1921 showing that after the dismissal of the civil suit the Revenue Court had decreed the suit. This order obviously was passed as early as the 13th of May 1921. The appeal was not disposed of by the lower Appellate Court till the 15th of February 1921, i.e., not till after nine months. The defendant made no attempt whatsover to tender this additional piece of evidence which was within his knowledge and power before the lower Appellate Court, nor was the attention of that Court directed to this matter. This not having been done, I am of opinion that it is now too late for the defendant to try to tender it in this Court. Under the circumstances, I am quite unable to hold that the decree of the lower Appellate Court was wrong, because of a certain order, a copy of which the defendant could have tendered, but which was not tendered, before that Court. It is also to be noted that there is no affidavit before me to show that that order of the Revenue Court was in fact the final order of the Revenue Court. For aught one knows, the matter might have been taken to a higher Court or may still be pending in the Revenue Court. I am, therefore, not disposed to admit this fresh evidence in second appeal. No such prayer was made in the grounds of appeal, nor was any application filed for tendering fresh evidence, with notice given to the defendant so that he may not be taken by surprise at the eleventh hour.
6. On the record as it stands, there is nothing to show that the Revenue Court has passed any final decree in favour of the defendant. All that appears is that a suit was filed in respect of this very holding, and in that suit the present plaintiff clearly denied that there was any relation of landlord and tenant between the parties; and pleaded that the Revenue Court had no jurisdiction to try the suit. The plaintiff's plaint as framed is a plaint which cannot be entertained by a Revenue Court at all. It asks for a declaration that the plaintiff is a joint tenant with the defendant and is entitled to joint possession, Such a suit is cognisable exclusively by the Civil Court. Vide Bhup v. Ram Lal 11 Ind. Cas. 268 : 8 A.L.J. 1009 : 33 A. 795 and Jagar Nath v. Ajudhia Singh 17 Ind. Cas. 376 : 35 A. 14 : 10 A.L.J. 408. I am, therefore, unable to hold that the Civil Court has no jurisdiction to entertain this claim. Furthermore, as a suit of this kind is not cognisable by a Revenue Court, Section 10 of the Civil Procedure Code cannot apply, and I cannot hold that the Civil Court should have stayed proceedings in the civil suit.
7. The learned Vakil for the appellant cited before me two oases where it has been held that if, previous to the institution of the civil suit, a final decree had been obtained from a Revenue Court declaring the status of one party as the tenant of the other that decree cannot be reopened by the Civil Court. That, of course, is quite obvious. The Revenue Court is the proper Court for trying the question whether the relation of landlord and tenant exists or not. Once it has been found by that Court, namely, that such a relation exists it is not open to the party to come to, the Civil Court and establish his proprietary title. That, however, is not the case here, and so far as it appears no final decree has been passed in favour of the defendant. The rule of law laid down in Jaigopal Narain Singh v. Uma Dat 10 Ind. Cas. 573 : 8 A.L.J. 695 at P. 699 applies.
8. The last point urged on behalf of the appellant was that the finding of the lower Appellate Court that the holding was a joint holding of the parties was incorrect. The question was a pure question of fact. The learned Judge has disbelieved the entire evidence of the defendant. He has believed the evidence for the plaintiff and his witnesses, and there is also the presumption of the Hindu law in favour of the plaintiff. He has also found that the plots where the occupancy lands belonging to the plaintiff's father. This finding cannot be interfered with in second appeal.
9. The appeal is without force and is hereby dismissed with costs including in this Court fees on the higher scale.