1. This is a plaintiff's appeal and arises out of a suit brought by him for possession of the few plots of land specified at the foot of the plaint, on the allegations to be presently mentioned. The defence was a denial of the plaintiffs right and an allegation that the defendant was the owner of the plots in dispute. There were numerous other questions which arose between the parties and on which the respective rights of the parties depended. A number of issues were framed by the Court of first instance and decided on the merits. It decreed the plaintiffs suit, but on appeal by the defendant, the lower appellate Court dismissed the suit, holding that the suit was not cognizable by a civil Court. It should be mentioned that no question of jurisdiction was raised in the Court of first instance and it was raised by an application in the lower appellate Court.
2. The plaintiff's case, as disclosed in the plaint, is that he is the owner of Mahal Syed Mohd. Hadi, in which the plots in dispute are situate, that the defendant held these plots as shikmi in 1916 with the permission of the then owners, he (the defendant) being a near relative, general agent and servant of a cosharer, Syed Ali Hammad, that a suit for ejectment was filed by Syed Ali Hammad and others in that year, and on the defendant claiming proprietary right he was referred to institute a civil suit for the establishment of his right, and that the defendant obtained a decree from the civil Court without impleading the plaintiff. It is further alleged in the plaint that the decree obtained by the defendant was collusive and fraudulent, and the present entry of his name in the revenue record as owner is erroneous. On these allegations the plaintiff prays for a decree for possession. The jurisdiction of the Court is to be determined, in the first instances, with reference to the allegations to be found in the plaint. There is no allegation in the plaint that the defendant is now the plaintiff's tenant. There is further nothing in the plaint to suggest that the plaintiff admits the defendant to have been in possession of this land in 1916 as his tenant. Talcing the plaint as it stands, there is no warrant for the suggestion that the suit is one for ejectment by a landlord against his tenant. The lower appellate Court has supplemented the allegations contained in the plaint by certain documents on the record, which show that the plaintiff was one of these persons who instituted the ejectment suit in 1916 on the allegation that the defendant was in possession as shikmi with the permission of the proprietors, he (the defendant) being a near relative, mukbtariam, etc.
3. It does not clearly appear from these allegations, apart from the use of the word 'shikmi,' that the defendant was alleged to be a tenant otherwise than as a person holding under Section 34, Tenancy Act, then in force. There was no allegation of any agreement of tenancy, nor was any mention of the defendant's liability to pay rent or of its payment at any time. It is difficult to say that the defendant was alleged to be a tenant against whom a suit under Sections 57 or 63, Tenancy Act (No. 2 of 1901), could be brought. In any case, there is not the least doubt that, according to the plaintiff's allegation in his plaint in the present suit, the defendant is not his tenant. The reasoning on which the judgment of the lower appellate Court proceeds is that, in so far as the defendant was alleged to be a tenant in 1916 and as nothing has happened since 1916 to alter his position, he must be deemed to have been a tenant at the date of the suit. This is however not deciding the question of jurisdiction on the allegations contained in the plaint but on a finding based on inferences from facts mentioned in the plaint and in documents produced in the case, it is now settled law that the initial jurisdiction of the Court is to be determined with reference to the allegations contained in the plaint. If these allegations, true or false, do not disclose as case of ejectment by a landholder against a tenant, the initial jurisdiction of the Court is settled. If after trial of the suit the finding arrived at by the Court leads to the conclusion that the relationship of landlord and tenant subsists between the parties, though it was concealed in the plaint, the Court will give effect to its finding by dismissing the plaintiff's suit as one not cognizable by a civil Court: see Ananti v. Chhannu : AIR1930All193 .
4. As already stated, looking at nothing else but the plaint in the present case, it is impossible to construe it as disclosing a claim by a landlord to eject a tenant. Whatever might have been, according to the plaintiff, the position of the defendant in 1916, he now clearly does not admit him to be a tenant. He now treats the defendant as a rival claimant to the proprietary right. According to the plaintiff, the defendant has no right of any kind in the land as owner, tenant or otherwise. In this view, the lower appellate Court was not justified in deciding the case on some allegations contained in the plaint and and on some documents on the record. The defendant does not admit that he is a tenant. He persists in his claim of proprietary right. If it appears on trial that neither party is telling the truth and if the Court finds that the defendant is, in fact a tenant of the plaintiff, the suit will have to be dismissed. The suit will also have to be dismissed if the defendant's alleged proprietary right is established. On the contrary, if the plaintiff is found to be the owner, as he alleges and the defendant is not found entitled to remain in possession in any capacity the suit will have to be decreed. In these circumstances, I am clearly of opinion that the view taken by the lower appellate Court is erroneous and that the defendants' appeal to that Court should have been tried out on the merits. Accordingly I set aside the decree of the lower appellate Court and remand the case to it for disposal of the defendant's appeal on the merits. The plaintiff-appellant will have his costs in this Court from the defendant-respondent.
5. Mr. Mukhtar Ahmad for the respondent prays for leave to appeal under the Letters Patent. The grounds on which my judgment proceeds are covered by numerous rulings of this Court, including the Full Bench decision to which reference has been made in my judgment. 1 do not think this is a fit case in which leave to appeal under the Letters Patent should be allowed. Indeed I think it will be wasting the time of a Bench of this Court if an appeal under the Letters Patent is allowed to be preferred. The application is dismissed.