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Mohammad Shabbir and anr. Vs. Zain-ul-abdIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1927All564
AppellantMohammad Shabbir and anr.
RespondentZain-ul-abdIn and ors.
Cases ReferredDina v. Harkishen Das
Excerpt:
- - i am of opinion that this content is well founded......were entitled to a decree. against the decree of the trial court an appeal was filed before the district judge. at the time of the hearing of the appeal a preliminary objection was raised on behalf of the plaintiffs to the effect that no appeal lay to the district judge against the decree of the assistant collector decreeing the plaintiffs' suit. the learned district judge was of opinion that a question of proprietary title was in issue in the court of first instance and was a matter in issue in appeal before him and as such he overruled the preliminary objection and decided the appeal on the merits. the learned district judge as a result of the findings arrived at by him dismissed the plaintiffs' suit.4. in appeal before me it is argued that no appeal lay to the district judge.....
Judgment:

Iqbal Ahmad, J.

1. This is a plaintiffs' appeal and arises out of a suit for ejectment of the defendants from Plot No. 18/1 on the allegation that the defendants first party, who were the occupancy tenants of the said plot had without any right permitted the defendants second party to build a house on that plot, and the defendants second party had actually built a house and this action of the defendants was detrimental to the land and was in consistent with the purpose for which the land was let, and as such the defendants were liable to ejectment under Clause (b). Section 57 of the Tenancy Act.

2. The main defence to the suit was that the house in question was situate, not on Plot No. 18/1, but on Plot No. 18/2 and as the plaintiffs had no concern with Plot No. 18/2 they had no right to maintain the suit. It was also contended by one of the defendants that the relation of zemindar and tenant did not exist between the plaintiffs and that particular defendant, and as such the suit was not cognizable by the revenue Court.

3. During the course of the trial it was admitted by the defendant who had challenged the jurisdiction of the revenue Court to entertain the suit, that he, in fact, was the tenant of the plaintiffs of Plot No. 18/1, and after this admission the main controversy between the parties centered round the question whether the house in question was situate on Plot No. 18/1 on upon Plot No. 18/2. If the house existed on Plot No. 18/2 the plaintiffs obviously were not entitled to a decree. On the contrary, if the house was found to exist on Plot No. 18/1, the claim of the plaintiffs was unanswerable. The trial Court came to the conclusion that the house was situate on Plot No. 18/1 and that the plaintiffs had brought the suit within a year of the accrual of the cause of action and that the plaintiffs were entitled to a decree. Against the decree of the trial Court an appeal was filed before the District Judge. At the time of the hearing of the appeal a preliminary objection was raised on behalf of the plaintiffs to the effect that no appeal lay to the District Judge against the decree of the Assistant Collector decreeing the plaintiffs' suit. The learned District Judge was of opinion that a question of proprietary title was in issue in the Court of first instance and was a matter in issue in appeal before him and as such he overruled the preliminary objection and decided the appeal on the merits. The learned District Judge as a result of the findings arrived at by him dismissed the plaintiffs' suit.

4. In appeal before me it is argued that no appeal lay to the District Judge against the decree of the Assistant Collector. I am of opinion that this content is well founded. True it is that a suit for the ejectment of a tenant under Section 57, Clause (b) of the Tenancy Act is one of the suits included in group B of the Fourth Schedule to the Tenancy Act. But it is to be noted, that it as not in every case included in group B that an appeal against the decision of the Assistant Collector of the first class lies to the District Judge. Only those decrees of Assistant Collectors of the first class in suits included in group B of the Fourth Schedule are appealable to the District Judge which come within Clauses (a), (b), (c), (e) or (f) of Section 177 of the Tenancy Act. Obviously Clause (a) of Section 177 has no application to the present case inasmuch as the value of the subject-matter of the suit was not in excess of Rs. 100. The learned Counsel for the respondents had placed reliance on the case of Dina v. Harkishen Das [1915] 37 All. 272 as an authority for the proposition that an appeal does lie to the District Judge from every decree of an Assistant Collector of the first class in any of the suits included in group B of the fourth schedule to the Tenancy Act. I am unable to agree with this contention. True it is that it was observed in that case that

a suit for ejectment on one of the grounds specified la Clause (b) of Section 57 is one of the suits mentioned in group B of the 4th Schedule to the Tenancy Act and an appeal from the decree in such a suit lies to the District Judge;

5. but in view of the clear provisions of Clause (a) of Section 177, 1 must presume that the observations of the learned Judge quoted above had reference to the facts of the particular case. I have sent for the record of the case of Dina v. Harkishen Das [1915] 37 All. 272 and I find that the value of the subject-matter of the suit in that case was Rs. 180 and as such obviously an appeal did lie to the District Judge in that particular case. The very fact that in the heading of group B the words 'if any' shows that an appeal to the civil Court does not lie against every decree of the Assistant Collector of the first class in suits included in group B. For these reasons, in my opinion, an appeal did not lie to the District Judge against the decision of the Assistant Collector in this particular case.

6. Then it is argued by the learned Counsel for the respondents that a question of proprietary title was in issue in the Court of first instance and was in issue in appeal and as such the learned District Judge was competent to entertain the appeal against the decree of the Assistant Collector. In my opinion there is no substance in this contention. As stated above the sole controversy between the parties was as to whether the house in dispute was on Plot No. 18/1. It was admitted on all hands that the defendants were tenants of Plot No. 18/1 and a proprietary title with respect to that plot was not claimed by any of the defendants. The mere fact that the defendants asserted that the house was not situate on that plot but was situate on a plot with which the plaintiffs has no concern did not raise a question of proprietary title with respect to the particular plot from which the ejectment of the defendants was sought by the plaintiffs. It is further contended by the learned Counsel for the respondents that the case did come within the purview of Clause (f) of Section 177 and as such an appeal did lie to the District Judge. There is no force in this contention True it is, that in the written statement tiled by one of the defendants the jurisdiction of the revenue Court to entertain the suit Was challenged but this challenge was withdrawn when the suit proceeded to trial with the result that there was no issue framed by the Assistant Collector on the question of jurisdiction and no such question was decided and as such Clause (f) has no application.

7. The result is that in my view no appeal lay to the District Judge against the decree of the Assistant Collector in this particular case, and as such I set aside the decree of the lower appellate Court and restore the decree of the Assistant Collector with costs in all Courts.


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