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Bhikhari Singh and ors. Vs. Jokhan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All124; 66Ind.Cas.856
AppellantBhikhari Singh and ors.
RespondentJokhan
Cases ReferredAbhilakh Dhelphora v. Liladhar Dhalphora
Excerpt:
.....79, 196 - jurisdiction, question of, not raised in first court--high court, whether point can be raised in--appeal, second--point of law, new, when can be allowed to be raised--wrongful dispossession of tenant--no suit within six months, effect of. - - no defence of limitation was, however, raised by the defendants who contended that they had taken possession under the terms of a mortgage executed by hanuman the father of the plaintiff, as interest bad not been paid and that they did not take wrongful possession bat entered into possession with the plaintiffs consent. 295, it has been uniformly decided that the failure of a tenant to apply to recover possession of a holding from which he has been wrongfully ejected by the landholder within the period of six months allowed by the.....1. this, is a defendants' appeal arising oat of a suit for possession. the plaintiff is the occupaney tenant of certain plots and the defendants are zamindars. the plaintiff sued on the allegation tint there had been a dispute between him and the defendants in respect of other tenancy holdings and ultimately defendant no. 1 obtained a decree for ejectment of the plaintiff from those plots, that after obtaining possession of those plots the defendant forcibly and without any right took possession of some of the plats in dispute, that the plaintiff filed a complaint in the criminal court about his dispossession but the complaint was ultimately dismissed on the 10th of december 1918, that after the dismissal of this complaint the defendants improperly took possession of the remaining plots.....
Judgment:

1. This, is a defendants' appeal arising oat of a suit for possession. The plaintiff is the occupaney tenant of certain plots and the defendants are Zamindars. The plaintiff sued on the allegation tint there had been a dispute between him and the defendants in respect of other tenancy holdings and ultimately defendant No. 1 obtained a decree for ejectment of the plaintiff from those plots, that after obtaining possession of those plots the defendant forcibly and without any right took possession of some of the plats in dispute, that the plaintiff filed a complaint in the Criminal Court about his dispossession but the complaint was ultimately dismissed on the 10th of December 1918, that after the dismissal of this complaint the defendants improperly took possession of the remaining plots in dispute, that the defendants had in the criminal case relied upon a certain mortgage deed which was quite wrong, fake, ineffectual and invalid, and that the defendants have no right to possession and have dispossessed the plaintiff through highhandedness. The plaintiff went on to say that the cause of action arose in the months of Kuar and Katik (September and October) 1918, hence the present suit for possession and mesne profits.

2. This suit which was instituted on the 15th of September 1919 was on the face of it, barred by the provisions of Schedule IV, Group C. No. 30 of the Tenancy Act. No defence of limitation was, however, raised by the defendants who contended that they had taken possession under the terms of a mortgage executed by Hanuman the father of the plaintiff, as interest bad not been paid and that they did not take wrongful possession bat entered into possession with the plaintiffs consent.

3. The Trial Court dismissed the suit, but the lower Appellate Court has decreed it.

4. The defendants some here in second appeal and the point raised by them was that the suit was not cognisable by the Civil Court. I cannot entertain this ground of appeal, because the question of jurisdiction was not raised in the First Court (vide Section 196 of the Tenancy Act).

5. The ground of limitation was, however, urged with my permission. The principle which has been accepted in this Court in allowing questions of law to be raised for the first time in second appeal is, that a point of law which does not require any questions of fact to be determined but can be decided on the record as it stands such a question of law may be allowed to be raised in second appall and not otherwise. [See in this connection Kanahai Lal v. Suraj Kunwar 21 A. 446; A. W. N. (1899), 164 : 9 Ind. Dec (n. s.) 992.] A large number of authorities were sited and reference was made to the Privy Council case of Raghunath Das v. Sundar Das Khetri 24 Ind. Cas. 304 : 18 C. W. N. 1058 : 1 L. W. 567 : 27 M. L. J. 150 : 16 M. L. T. 353; (1914) M. W. N. 747 : 16 Bom. L. R. 814 : 20 C. L. J. 555 : 13 A. L. J. 154 : 42 C. 72 : 41 I. A. 251 (P. C.), on behalf of the respondent to support his contention that I could not allow this contention to be raised. As to the Privy Council case, all that I need say is that it has no application just as the others have none. In the Privy Council case their Lordships refused to allow the question to be raised for the first time in appeal, because it would have made further enquiry necessary before the question could be decided. In the present case in order to decide the question of limitation no further enquiries or findings are required. On the cause of action, as stated in the plaint itself, the point of limitation has been argued and can be decided. It has not been suggested by the learned Vakil of the respondent that any farther fasts have to be found before this question can be determined. There is no doubt that, having regard to the course of rulings in this Court commencing from the case of Dalip Bai v. Deoki Rai 21 A. 204; A. W. N. (1899) 36 : 9 Ind. Dec. (n. s.) 840, up to the case of Balbhaddar Chaubey v. Sonaroo Rai 27 Ind. Cas, 914; A. L. J. 295, it has been uniformly decided that the failure of a tenant to apply to recover possession of a holding from which he has been wrongfully ejected by the landholder within the period of six months allowed by the Tenancy Act bars not only his remedy but extinguishes his rights also. In the present case the plaintiff, the occupaney tenant, comes to Court on the relegation that be has been wrongfully dispossessed by the defendants (his Zemindars) under the guise of an invalid mortgage said to have been executed by his (the plaintiff's) father. This was certainly not dispossession in accordance with law. Such dispossession was wrongful and, as such, the plaintiff tenant ought to have sued for recovery of possession within six months of his dispossession under the special period of limitation provided by the old Rent Act and the present Tenancy Act. He having failed to do so, his right to possession has ceased to exist. He is not suing to redeem the mortgage executed by his father and, therefore, the case of Abhilakh Dhelphora v. Liladhar Dhalphora 45 Ind. Cas. 549, does not apply. The mere fait that if the question of jurisdiction is not raised in the First Court the Appellate Court is to decide the suit as if it had been brought in the right Court does not in any way warrant the conclusion that limitation to be applied to that suit is not the one which would have applied if the suit had been brought in the right Court but that some otter rule of limitation is to be applied. This world appear from the provision that if the Appellate Court has not all the materials before it, it might direct a remand to the Court in which the suit ought to have been brought.

6. In my opinion the suit was barred by six months rule of limitation and, as such, should have been dismissed.

7. I allow the appeal, set aside the decree of the Court below and restore that of the Court of first instance with costs in all Courts, including in this Court-fees, on the higher scale.


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