1. This is a second appeal in a suit which has been tried in a very curious manner. The circumstances are that the father of the plaintiff is recorded in the khewat for zemindari property, and he made a document conferring certain occupancy rights on his sister. In accordance with that, the sister, defendant No. 1, made an application to the Revenue Court under Section 18, U.P. Act III of 1926 (the Agra Tenancy Act) for entry of her name as occupancy tenant. That application was opposed by the present plaintiff. The objection was apparently taken that the present plaintiff was not recorded in the khewat and that his father alone was recorded. The Revenue Court, therefore, acted under Section 18(3) and required the present plaintiff to institute within three months, a suit in the Civil Court for the determination of his proprietary rights. Paragraph 1 of the plaint sets forth the claim of the plaintiff that he, on his birth, acquired proprietary rights jointly with his father Natthu Singh, defendant, No. 2. The rest of the plaint unfortunately enters into controversial matters in regard to validity of the grant of the occupancy rights. The relief asked for in the plaint is confined to a declaration that the plaintiff jointly with his father, Natthu Singh, defendant No. 2, is the owner of the zemindari property in question, and no further relief is asked for. The written statement of defendant No. 1, in para. 1 states 'of the contents of para. 1 of the plaint the first Clause is admitted, clause second is not admitted'. This was apparently a denial of the proprietary rights of the plaintiff. The rest of the written statement is taken up with a reply to the controversial matters in regard to the deed conferring occupancy rights. The issues were very badly framed, and the first issue-did not question clearly as to whether the plaintiff was entitled to the proprietary rights or not. On the contrary the first issue was:
Is the plaintiff entitled to sue? Was defendant No. 2, a manager and karta of a joint Hindu family, competent to confer occupancy rights? Is the plaintiff entitled to declaration sought
2. The second issue was whether the suit was barred by Section 115, Evidence Act, and Section 42, Specific Relief Act. Both courts have considered issues which did not arise in the case at all and have not confined themselves to the only issue which was within the jurisdiction of the Civil Court, that is, the simple question as to whether the plaintiff was the owner of proprietary rights or not in the mahal in question. Both courts have dismissed the suit, the lower Appellate Court dismissing it on the ground that the suit was barred by estoppel, because the plaintiff consented to the grant of occupancy rights. This has nothing whatever to do with the question. The questions of estoppel or the validity of the grant of occupancy rights are, under the Agra Tenancy Act, solely within the jurisdiction of the Revenue Court and the only question before the Civil Court was the question of proprietary rights, which had been referred to it. It is clear that the plaintiff is entitled to the declaration for which he asks, as it is not denied that he is the son of his father, defendant No. 2, and no separation between the plaintiff and defendant No. 2 is alleged. Accordingly the plaintiff and defendant No. 2 form a joint Hindu family, and the property in question is admittedly ancestral property and on birth the plaintiff acquired the status of a member of a joint Hindu family.
3. We, therefore, allow this appeal and grant the plaintiff a declaration that he along with his father Natthu Singh are the owners of the property in question. As regards the question of costs, it was alleged that the parties were equally to blame in misleading the court below by the introduction of matter entirely foreign to the case; but we consider that the contesting defendant No. 1 is more to blame, as in her written statement she denied the proprietary rights alleged in para. 1 of the plaint. We accordingly set aside the decrees of the courts below and decree the plaintiff's suit with costs, in all the three courts against defendant No. 1 who contested the suit and ex parte defendant No. 2.