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Bageshar Misir and ors. Vs. Mahabir Shukul and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All526; 157Ind.Cas.405
AppellantBageshar Misir and ors.
RespondentMahabir Shukul and anr.
Cases ReferredAnanti v. Chhannu
Excerpt:
- - in appeal the learned additional subordinate judge decreed the suit for joint possession as well as mesne profits......property or for mesne profits. the proper remedy of the plaintiff in such a case was to file; a suit for profits or for settlement, of accounts in the revenue court. the suit is therefore not cognizable by the civil court. it is therefore ordered that the appeal be allowed, the decree of the lower court be set aside, and the plaint be returned to the plaintiff for presentation to the proper-court. as this point of jurisdiction was not raised by the defendants the parties shall bear their own costs of this appeal.9. the learned counsel for the respondent relied on said unnissa v. fida husain 1921 all. 112. whatever may have been the doubts which were dealt with in the case cited by the learned counsel they have been: removed and set at rest by the full bench decision in ananti v......
Judgment:

Ganga Nath, J.

1. This is a defendants' appeal and arises out of a suit brought against them by the plaintiff-respondent for joint possession and mesne profits. The plaintiff's case was that the defendants had realized rent from the tenants which were due and payable to the plaintiff. The defendants denied doing so. Defendants 1 and 4, contested the suit and admitted the plaintiff's title to the property in question, but pleaded that they (defendants) had no concern with the property and, as such, they were not liable to pay mesne profits to the plaintiff. Defendant 5 also admitted that the parties had been in possession, but he contested the amount of mesne profits. The trial Court gave a decree to the plaintiff in respect of 3/4th of the two pies and old share. In appeal the learned Additional Subordinate judge decreed the suit for joint possession as well as mesne profits. Against this decision an appeal has been filed by defendants 1 to 4. The chief point for consideration is whether the suit was cognizable by the Civil Court or not. The case of the plaintiff is given in paras. 6 and 7 of his plaint para. 6 is:

The defendants have entered into wrongful possession of the property in dispute, are being benefited thereby there by and are realising rent from sub-tenants.

2. Paragraph 7 is:

The plaintiff brought some suits for arrears of rent against, the sub-tenants in revenue Court, wherein the defendants made the sub-tenants set up defence that they had paid the rent to the defendants. From this it is quite evident that the defendants have made collections from the plaintiff's tenants.

3. In para. 4 the plaintiff stated:

The plaintiff's claim for possession of the property in question was decreed on 18th May 1922, and, through Court amin; the plaintiff obtained possession of the property in respect o which the decree was passed, on 2nd June 1923.

4. It would appear from the allegations in para. 4 that the plaintiff did actually obtain joint possession with the defendants. There is nothing in the allegations made by the plaintiff in paras. 6 and 7 which may show that the plaintiff has been dispossessed by the defendants. The plaintiff's allegations amount to simply saying that the defendants have been realising rent from the tenants which should have-been paid to the plaintiff. The plaintiff has scrupulously avoided stating in the plaint that he has been dispossessed from any part of the property. It may be mentioned here that the property is zamindari and none of the parties has been in physical possession over any specific portion of the zamindari property or the sir or khudkasht appertaining to it. All the parties are jointly in possession. In relief (a) the plaintiff has stated that:

a decree for possession of the property in dispute specified at the foot of the plaint may be passed in favour of the plaintiff against the defendants.

5. Relief (b) states that:

Rs. 120 on account of damages and mesne profits for three years next before the date of institution of the suit, mar be awarded to the plaintiff against the defendants.

6. The suit is therefore for the recovery of rents which were due to the plaintiff and have been realized according to the plaintiff by the defendants. The plaintiff has added a relief for possession far which he has disclosed no cause of action and in respect of which he has not even stated that he has ever been dispossessed. Section 230, Agra Tenancy Act (3 of 1926), lays down that:

Subject to the provisions of 8. 271, all suits and applications of the nature specified in Schedule 4 shall be heard and determined by the revenue Courts and no Courts other than a revenue Court shall, except by way of appeal or revision as provided in this Act, take cognizance of any such suit or application, or of any suit or application, based on a cause of action in respect of which adequate relief could be obtained by means of any such suit or application.

7. Under Section 227:

A cosharer may sue another co-sharer for a settlement of accounts, and for his share of the profits of a mahal or of any part thereof,

8. The plaintiff could have got a relief which he seeks in this suit under Section 227, Tenancy Act, in the Revenue Court. The mere fact that a plaintiff chooses to add a relief which is unnecessary to the reliefs which can be granted by the Revenue Court will not take the case out of the jurisdiction of the Revenue Court. In Ananti v. Chhannu 1930 All. 193, where a relief for an injunction had been joined to the other reliefs it was held that the mere fact that a perpetual injunction has been asked for will not take the case out of the jurisdiction of the Revenue Court. In the present case as already stated the plaintiff has stated in the plaint that he obtained joint possession and he does not state anywhere that lie has been dispossessed. All that he says is that the defendants have realized his share of profits from the tenants. Therefore the only relief which the plaintiff claims and to which he is entitled is a decree for his share of profits which according to him has been I realized by the defendants from the tenants and for which, as already stated, he can claim and obtain relief in the Revenue Court under Section 227, Tenancy Act. This view is not without an authority. In Bashir Husaqin v. Mohammad Ali 1929 All. 810, where a cosharer in an undivided mahal was in actual possession of the property in the sense that he was making collections for the whole co-parcenary body, it was held that it was not open to another cosharer to institute a suit against him in the Civil Court for joint possession of the property or for mesne profits. The proper remedy of the plaintiff in such a case was to file; a suit for profits or for settlement, of accounts in the Revenue Court. The suit is therefore not cognizable by the Civil Court. It is therefore ordered that the appeal be allowed, the decree of the lower Court be set aside, and the plaint be returned to the plaintiff for presentation to the proper-Court. As this point of jurisdiction was not raised by the defendants the parties shall bear their own costs of this appeal.

9. The learned Counsel for the respondent relied on Said Unnissa v. Fida Husain 1921 All. 112. Whatever may have been the doubts which were dealt with in the case cited by the learned Counsel they have been: removed and set at rest by the Full Bench decision in Ananti v. Chhannu 1930 All. 193. As the valuation of this suit was below Rs. 200, no appeal lay to the Civil Court and consequently Section 268, Tenancy Act, does not apply. Permission to file a Letters Patent appeal is rejected.


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