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Gauri Bai and ors. Vs. Manohar Teli and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in17Ind.Cas.520
AppellantGauri Bai and ors.
RespondentManohar Teli and ors.
Excerpt:
agra tenancy act (ii of 1901), section 202, scope of - procedure--question not material--mortgage unregistered. - - ' we have to see what would be the result if the defendants failed to institute a suit in the revenue court. the decision of the court upon the plea would be that the defendants had failed to prove that they are the tenants of the plot in suit. that decision would not help the plaintiffs,'as on the suit as framed they had failed to prove the existence of a mortgage. 358 inasmuch as they failed to prove the mortgage sued upon......upon the plea would be that the defendants had failed to prove that they are the tenants of the plot in suit. that decision would not help the plaintiffs,' as on the suit as framed they had failed to prove the existence of a mortgage. if, however, the procedure required by section 202 of the tenancy act had been carried out and the defendants had instituted a suit in the revenue court, it would have been the duty of the civil court to dispose of the suit according to the decision of the revenue court. again, we have to see what would be the decision if the court held that the defendants were tenants and (2) if it held that they were not tenants. in either alternative, the plaintiffs could not get a decree in respect of plot no. 358 inasmuch as they failed to prove the mortgage sued.....
Judgment:

Griffin, J.

1. The appellants in this case alleged that they were the occupancy-tenants of two plots Nos. 358 and 181, and that they had mortgaged these plots by two separate mortgages to defendants. They sued for redemption. This suit has been decreed with regard to plot No. 181, but it has been dismissed by both the Courts below with regard to plot No. 358. The lower Appellate Court finds as a fact that there was no legal mortgage over this plot, inasmuch as the mortgage alleged was for a sum of over Rs. 100 and the document was not registered. The plaintiffs come in second appeal to this Court. The defendants had denied the existence of a mortgage over plot No. 358 and alleged that they were the sub-tenants of the plaintiffs in respect of that plot. It is contended in second appeal that in view of the pleadings of the defendant, it was incumbent on the Courts below to require the defendants to institute a suit in the Revenue Court within three months for a determination of the question whether or not they were the tenants of plot No. 358. The provisions of Section 202 of the Tenancy Act lend support to this plea. The trait was one relating to an agricultural holding instituted in a Civil Court and the defendants pleaded that they held the land as the tenants of the plaintiffs. In the memorandum of appeal to the Court below, one of the grounds taken was that the defendants should have been required to institute a suit in the Revenue Court for the determination of their status. This plea was not noticed in the judgment of the Court below. The second paragraph of Section 202 sets out that if the defendant fails to comply with the order, the Court shall decide the question against him.' We have to see what would be the result if the defendants failed to institute a suit in the Revenue Court. The decision of the Court upon the plea would be that the defendants had failed to prove that they are the tenants of the plot in suit. That decision would not help the plaintiffs,' as on the suit as framed they had failed to prove the existence of a mortgage. If, however, the procedure required by Section 202 of the Tenancy Act had been carried out and the defendants had instituted a suit in the Revenue Court, it would have been the duty of the Civil Court to dispose of the suit according to the decision of the Revenue Court. Again, we have to see what would be the decision if the Court held that the defendants were tenants and (2) if it held that they were not tenants. In either alternative, the plaintiffs could not get a decree in respect of plot No. 358 inasmuch as they failed to prove the mortgage sued upon. It would, therefore, appear that the question remitted to the Revenue Court for decision must be vital question in the case. Where, as in this case, the decision of the Revenue Court would have no effect on the decision of the Civil Court, the provisions of Section 202, in my opinion, have no application. The appeal is dismissed with costs.


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