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Har Prasad Vs. Tajammul HusaIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All290(1); 44Ind.Cas.720
AppellantHar Prasad
RespondentTajammul HusaIn and ors.
Excerpt:
.....act (ii of 1901), sections 177, 198 - ejectment, suit for--tenant denying plaintiff's proprietary title--appeal, forum of. - - we are clearly of opinion that the appeal lay to the district judge. section 198 occurs under the heading of questions of proprietary title in revenue courts and deals with a case in which the defendant pleads that the relation of landholder and tenant does not exist between the plaintiff and himself on the ground that he actually and in good faith pays the rent of his holding to some third person. this was clearly a question of proprietary title and as it was in issue in the court of first instance and was also a matter in issue in the appeal, the appeal lay to the district judge under the provisions of section 177. we express, no opinion on the merits of the..........of the agra tenancy act. the point for consideration is whether an appeal in the case lay to the district judge or to the commissioner. the suit was one for ejectment on the allegation that the defendants were the plaintiff's tenants without rights of occupancy. the defendants denied the title of the plaintiff and asserted that the relation of landlord and tenant did not subsist between the plaintiff and themselves. the court of first instance dismissed the suit, holding that the plaintiff was not entitled to maintain it in view of certain orders passed by the revenue court. an appeal was preferred to the district judge, but he was of opinion that the appeal lay to the commissioner. the petition of appeal was returned and was presented in the court of the commissioner. the learned.....
Judgment:

1. This is a reference under Section 195 of the Agra Tenancy Act. The point for consideration is whether an appeal in the case lay to the District Judge or to the Commissioner. The suit was one for ejectment on the allegation that the defendants were the plaintiff's tenants without rights of occupancy. The defendants denied the title of the plaintiff and asserted that the relation of landlord and tenant did not subsist between the plaintiff and themselves. The Court of first instance dismissed the suit, holding that the plaintiff was not entitled to maintain it in view of certain orders passed by the Revenue Court. An appeal was preferred to the District Judge, but he was of opinion that the appeal lay to the Commissioner. The petition of appeal was returned and was presented in the Court of the Commissioner. The learned Commissioner has referred the case to this Court for determination of the question whether the appeal lay to the Judge or to the Commissioner. We are clearly of opinion that the appeal lay to the District Judge. Section 177 of the Tenancy Act provides that an appeal shall lie to the District Judge from the decree of an Assistant Collector of the first claps in all suits in which a question of proprietary title has been in issue in the Court of first instance, and is a matter in issue in the appeal. There can be no doubt that in this case a question of proprietary title was in issue in the Court of first instance and was also a matter in issue in the appeal. The act itself indicates what is meant by a question of proprietary title. Section 198 occurs under the heading of questions of proprietary title in Revenue Courts and deals with a case in which the defendant pleads that the relation of landholder and tenant does not exist between the plaintiff and himself on the ground that he actually and in good faith pays the rent of his holding to some third person. In the present case the plea of the defendants was that the relation of landlord and tenant did not exist between the plaintiff and them. They alleged that they were lessees from other persons and that the plaintiff had no right to sue them. This was clearly a question of proprietary title and as it was in issue in the Court of first instance and was also a matter in issue in the appeal, the appeal lay to the District Judge under the provisions of Section 177. We express, no opinion on the merits of the case but we think that the appeal ought to have been entertained by the District Judge and the memorandum of appeal ought not to have been returned. We accordingly direct that the District Judge do receive the memorandum of appeal which was originally presented to him by the appellant and dispose of the appeal according to law. The costs of this reference will abide the result.


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