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Ghansham Dass and anr. Vs. Lala Kalyan Mal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in62Ind.Cas.82
AppellantGhansham Dass and anr.
RespondentLala Kalyan Mal and ors.
Excerpt:
.....settlement of accounts in respect of the monies advanced by them to the defendants for investment by way of mortgage, could have been obtained by means of any suit brought under the tenancy act......we are bound to pronounce some opinion on the question whether this suit was entertainable by the subordinate judge. we think it quite clear that the suit, as brought, was not one which could have been instituted in the court of an assistant collector. we are not satisfied that the relief which the plaintiffs seek, namely, a complete settlement of accounts in respect of the monies advanced by them to the defendants for investment by way of mortgage, could have been obtained by means of any suit brought under the tenancy act. we think, therefore, that in view of the pleadings of both parties in this case and the nature of the issues fixed for trial, the civil court in entertaining this suit would not be taking cognizance of a dispute which could have been adjusted by means of any one.....
Judgment:

1. This was a suit brought by two plaintiffs against three defendants and was instituted in the Court of the Subordinate Judge of Cawnpore. The pleadings were very lengthy and led to the framing of no less than seven issues. Of these, however, only one issue was decided, namely, the 7th, which was framed in these words: 'Is the suit triable by this Court.' On this issue the learned Subordinate Judge found that he was debarred from entertaining the suit by reason of the provisions of Section 167 of the Local Tenancy Act, II of 1901. Upon this he passed an order that the plaint be returned to the plaintiff for presentation to the proper Court. The appeal before us is against this order. The fasts alleged in the plaint are somewhat complicated and those put forward in the written statement of the defendants are still more so. Essentially, however, the point in issue may be stated thus. The plaintiffs allege that in virtue of a contrast come to between themselves On the one hand, and defendant No. 1 and the father of defendants Nos. 2 and 3 on the other, the plaintiffs advanced Rs. 800 on one occasion and Rs. 1,200 on another occasion, to be employed by the persons to whom the advance was made in taking up usufructuary mortgages on various villages. They allege that a mortgage was first taken on seven villages as set forth in the plaint, under which possession was actually given to the father of defendants Nos. 2 and 3. A further mortgage was taken on the same property in favour of the father of defendants Nos. 2 and 3 and the plaintiffs, but possession is alleged to have remained with the father of defendants Nos. 2 and 3, and after him with defendant No. 2. The plaint goes on to set forth a number of subsequent transactions under which the equity of redemption in some of the villages has passed to the defendants and in one village to the plaintiffs. Finally they claim that an account be taken of the profits enjoyed by the parties respectively in all the villages affected by the two mortgages, namely, from the defendants in respect of all the mortgaged property up to the year 1322 Fasli, and of all the mortgaged villages except one since that date, and from the plaintiffs in respect of the profits of that particular village, Mauza Seontha, from 1322 Fasli onwards. On the basis of such an account they claim that a sum of more than Rs. 800 will be found due to them. The learned Subordinate Judge has not held that this suit, as it stands, could have been brought in the Court of an Assistant Collector.

2. Assuming the facts to be as stated and the plaintiffs to be mortgagees in possession to the extent of a two fifth share and the defendants mortgagees in possession to the extent of a three-fifth share in respect of each of the seven villages set forth in the plaint, separate suits for settlement of accounts would have had to be brought in respect of each village, and presumably if the plaintiffs sued in respect of those villages where possession had been enjoyed by the defendants, it would have been left to the defendants to sue for a settlement of accounts in respect of village Seontha where the plaintiffs bad been in possession. As a matter of fact it would seem from the written statement that the parties are at issue on a question of fact as to which party was in actual possession and enjoyment of the profits of the various villages during the years in suit, as well as upon other points. The learned Subordinate Judge, however, is clearly of opinion that the plaintiffs could have obtained the relief which they are now seeking, by bringing suits under Section 165 of the Local Tenancy Act, and that consequently he is debarred from taking cognizance of the present suit by the latter part of Section 167 of the same Act, where it is laid down that no Court other than a Revenue Court shall take cognizance of any dispute or matter in respect of which a suit might be brought under the Tenancy Act itself, if it were not for the fact that the dispute is complicated by a plea of limitation, we should have felt much disposed to content ourselves with a reference to the provisions of Sections 196 and 197 of the Tenancy Act itself. We have no doubt that the provisions of these sections are saved by the words, 'except in the way of appeal as hereinafter provided,' in Section 167 itself, and that it would be open to this Court in any event to treat the present suit as one which it had jurisdiction to remand to the Subordinate Judge for disposal on the merits, without determining one way or the other the question whether it had been lawfully instituted in the said Court. If, however, the appeal were disposed of in this way, the question of limitation would give rise to further difficulties, as the Subordinate Judge would no doubt be asked to determine it on the assumption that the suit had been instituted in what he found to be the right Court, namely, the Court of an Assistant Collector. We think, therefore, we are bound to pronounce some opinion on the question whether this suit was entertainable by the Subordinate Judge. We think it quite clear that the suit, as brought, was not one which could have been instituted in the Court of an Assistant Collector. We are not satisfied that the relief which the plaintiffs seek, namely, a complete settlement of accounts in respect of the monies advanced by them to the defendants for investment by way of mortgage, could have been obtained by means of any suit brought under the Tenancy Act. We think, therefore, that in view of the pleadings of both parties in this case and the nature of the issues fixed for trial, the Civil Court in entertaining this suit would not be taking cognizance of a dispute which could have been adjusted by means of any one suit or series of suits brought in the Court of an Assistant Collector. We, therefore, set aside the order under appeal and send the case back to the Court of the learned Subordinate Judge, with orders to re-admit it on to his pending file and to proceed to dispose of it according to law. The costs here and hereafter, including fees in this Court on the higher scale, to be costs in the cause.


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