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B. Tulsi Prasad Sahai Vs. Ramraj Ahir - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in71Ind.Cas.308
AppellantB. Tulsi Prasad Sahai
RespondentRamraj Ahir
Cases ReferredParbhu Narain Singh v. Baldeo Prasad
Excerpt:
agra tenancy act (ii of 1901), sections 177, clause (e), 198 - title of landlord repudiated--third person's title pleaded--third person not made party to suit--question of title raised and decided--appeal. - .....claim. the plaintiff comes here in second appeal and his contention is that no appeal lay to the district judge but that the appeal, if any, lay to the commissioner under serial no. 29 of the fourth schedule to the tenancy act. the learned vakil for the appellant has drawn any attention to section 198 of the tenancy act which deals with cases where the defendant raises a question of title and says that no appeal lies in a case covered by section 198, as the only remedy provided by that section is a suit for declaration of title in the civil court. on the other hand, mr. harnandan prasad, the learned vakil for the respondent, has invited my attention to the case of parbhu narain singh v. baldeo prasad 8 ind. cas. 817 : a.l.j. 36 : 36 a. 260. that case is similar to the present case.....
Judgment:

Gokul Prasad, J.

1. This is a plaintiff's appeal arising out of a suit for ejectment under Section 58 of the Tenancy Act brought in the Revenue Court. The defence pleaded was that the relationship of landlord and tenant did not subsist between the parties, that the land in dispute belonged to another village and that the defendant had been paying rent to the landlord of that village. The First Court came to the conclusion that the land in dispute appertained to the village of the plaintiff and decreed the claim. On appeal the lower Appellate Court has come to an opposite conclusion, has allowed the appeal and dismissed the plaintiff's claim. The plaintiff comes here in second appeal and his contention is that no appeal lay to the District Judge but that the appeal, if any, lay to the Commissioner under Serial No. 29 of the Fourth Schedule to the Tenancy Act. The learned Vakil for the appellant has drawn any attention to Section 198 of the Tenancy Act which deals with cases where the defendant raises a question of title and says that no appeal lies in a case covered by Section 198, as the only remedy provided by that section is a suit for declaration of title in the Civil Court. On the other hand, Mr. Harnandan Prasad, the learned Vakil for the respondent, has invited my attention to the case of Parbhu Narain Singh v. Baldeo Prasad 8 Ind. Cas. 817 : A.L.J. 36 : 36 A. 260. That case is similar to the present case except that in that case the rival Zemindar whose title was set up by the defendant was also made a party. The question, however, arises whether the mere fact that the person whose title was pleaded as jus tertii has been impleaded in the suit makes any difference. There is no doubt that when the defendant pleads the title of a third person and repudiates the title of the plaintiff, the alleged landlord, a question of proprietary title is raised, and it cannot be said that no question of proprietary title has been raised, or decided. In this case the question of proprietary title was not only raised but was decided by the First Court, and, therefore, in order to reconcile the provisions of Sections 198 and 177 of the Tenancy Act, I come to the conclusion, although not without hesitation, that in the present case ail appeal did lie to the District Judge. The remedy under Section 198 of the Tenancy Act is an additional remedy but it does not prevent an appeal lying to the District Judge under Section 177, Clause (e). I might also note that another ground has been taken that the Court below has not followed the procedure expressly laid down by Section 198. I do not think there has been such an irregularity in procedure as would warrant me in setting aside the decree of the lower Appellate Court. I, therefore, dismiss this appeal with costs.


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