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Musammat Dhanpati Vs. Jokhan Ahir - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.401
AppellantMusammat Dhanpati
RespondentJokhan Ahir
Cases ReferredIshri and Anr. v. Musammat Kaisar Revision No.
Excerpt:
agra tenancy act (ii of 1901, local), section 95 - claim between rival tenants--tenancies at fixed rates--suit for declaration of right of joint tenancy--alternative prayer for joint possession--jurisdiction of civil or revenue court. - .....tries to interfere with her and she has no course open but to ask for a decree maintaining her joint possession with the defendant over, and declaring her right to, the property in dispute. she also asks for a declaration that a compromise filed in the revenue court and the order for mutation of names passed by that court and by the appellate court, and the judgment of the court of the subordinate judge of ghazipur, dated the 29th january 1907, are null and void. in the plaint there was a further prayer that if the plaintiff be deemed out of possession by reason of the order for mutation of names or otherwise, a decree be given in her favour for joint possession over the property in dispute. this suit then, to reduce it to a smaller compass, is a suit brought by the holder of a fixed.....
Judgment:

1. The present appeal is from an order passed by the Subordinate Judge of Ghazipore whereby he returned a plaint, which had been presented to his Court, with directions to the plaintiff to present it to the Court of Revenue. The plaintiff comes in appeal here and contends that the suit as instituted by her is cognisable by a Civil Court. The plaint is a wrong rambling plaint, full of a great deal of irrelevant matter, one which should have been challenged by the Munsarim of the Court and should have been given back to the plaintiff to be purged of the irrelevant matter. Had this been done, it is possible that the Court below would have acted differently from the way which it has acted. The subjectmatter of dispute is described in the plaint as a fixed rate holding. The plaintiff claimed to be the heiress of Gopal Ahir who, she says, was sharer and owner in possession of half the fixed rate holding. The father died in 1900 and his widow entered into possession by right of inheritance with a limited and life interest. While she was in possession she died in September 1906. The defendant, one Jokhan Ahir, got his name recorded on the subjectmatter of dispute, but according to the plaint never got into possession. The plaintiff throughout alleges that she is the person in possession, that the defendant tries to interfere with her and she has no course open but to ask for a decree maintaining her joint possession with the defendant over, and declaring her right to, the property in dispute. She also asks for a declaration that a compromise filed in the Revenue Court and the order for mutation of names passed by that Court and by the appellate Court, and the judgment of the Court of the Subordinate Judge of Ghazipur, dated the 29th January 1907, are null and void. In the plaint there was a further prayer that if the plaintiff be deemed out of possession by reason of the order for mutation of names or otherwise, a decree be given in her favour for joint possession over the property in dispute. This suit then, to reduce it to a smaller compass, is a suit brought by the holder of a fixed rate tenure whose possession is being interfered with, to have a declaration that she by virtue of inheritance is entitled to joint possession with the defendant over the property in dispute or if she be out of possession to a decree giving her joint possession over the property.

2. The question, therefore, which we have to consider is whether a suit of this kind is one in respect of which any suit or application may be brought or made in the Revenue Court. If the answer to this question is in the affirmative, then, so far as the question is covered by Section 167 of Act II of 1901 (Local), no Court other than a Revenue Court is entitled to take cognisance of it. The only section to which we have been referred by the learned vakil for the defendant as being a section in point, was Section 95 of Act II of 1901. Assuming for a moment that this section was not intended to refer only to suits between landlords and tenants and that one tenant could ask the Revenue Court to give him a declaration under Section 95 as against another tenant, it yet remains to be seen whether the Revenue Court could grant such a declaration as the plaintiff in the present case seeks. It seems to us that there can only be one answer to this question and that is that the plaintiff could not get the relief she seeks for and that, therefore, Section 167 does not stand in her way. We know of no other section in Act II of 1901 which would give the plaintiff the reliefs she seeks and that being so. we see nothing to bar her from bringing her suit in the Civil Court. The case is still stronger if we take into consideration the other miscellaneous and subsidiary reliefs for which the plaintiff prayed in her plaint. In the course of the argument we were referred to two cases which were decided since Act II of 1901 was passed into law. The first case is the case of Ajudhia Singh v. Ram Dayal Upadhia (1908) A.W.N. 3. The facts of that case are not on all fours with the facts of the present case and this Court in that case held that there was no bar to the institution of plaintiff's suit in a Civil Court. We have been also referred to an unreported case Ishri and Anr. v. Musammat Kaisar Revision No. 69 of 1908. The facts of that case are more in harmony with the present case before us and, therefore, it was held that the Court which had jurisdiction was the Civil Court. We, accordingly, decree the appeal, set aside the order of the Court below and direct the Court below to readmit the plaint if it is presented by the plaintiff within 15 days from the date on which this order reaches the Court. If the plaint is still on the file we direct the Court below to readmit the case to its original number on the register of suits and dispose of it according to law. The appellant will have his costs in all Courts from the respondent.


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