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Musammat Chitto Vs. Ganga Sahai and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All527; 77Ind.Cas.638
AppellantMusammat Chitto
RespondentGanga Sahai and anr.
Cases ReferredKishore Singh v. Bahadur Singh
Excerpt:
civil procedure code (act v of 1908), section 11 - agra tenancy act (ii of 1901), section 95(a)--suit cognizable by revenue court--decision by revenue court--suit in civil court--res judicata--suit for declaration that plaintiff is sole occupancy holding, whether cognizable by revenue court. - - she distinctly asked for a declaration that she and musammat kesai were the sole occupancy tenants of the holding......musammat kesar by way of consolation. at the last settlement ganga sahai, son of bhupal singh, and fateh singh in collusion with musamma kesar and without the knowledge of the plaintiff got their names entered as joint occupancy tenants of the said holding with the plaintiff. she came to know of the fraud practised upon her some time in march 1919. she applied to the revenue court for the correction of the revenue papers asking for the names of ganga sahai and fateh singh to be expunged. the revenue court rejected her prayer and hence she his come into civil court for the declaration of her right as the sole occupancy tenant of the holding in question. the claim was resisted by the denial of the allegations in the plaint. it was urged that the suit was not maintainable in a civil court.....
Judgment:

Rafique, J.

1. This is a plaintiff's appeal arising out of a suit brought by her for a declaration that she was the sole occupancy tenant of the holding mentioned in the plaint. She stated in her plaint that the occupancy Inkling originally belonged to her husband Baldeo Singh who died some time ago without any issue, leaving her surviving as the sole heir. After the death of her husband she applied for mutation of name and also asked the Revenue Court to include with her name the name of her sister-in-law Musammat Kesar, the widow of a deceased brother of Baldeo Singh. She extended this indulgence to Musammat Kesar by way of consolation. At the last Settlement Ganga Sahai, son of Bhupal Singh, and Fateh Singh in collusion with Musamma Kesar and without the knowledge of the plaintiff got their names entered as joint occupancy tenants of the said holding with the plaintiff. She came to know of the fraud practised upon her some time in March 1919. She applied to the Revenue Court for the correction of the revenue papers asking for the names of Ganga Sahai and fateh Singh to be expunged. The Revenue Court rejected her prayer and hence she his come into Civil Court for the declaration of her right as the sole occupancy tenant of the holding in question. The claim was resisted by the denial of the allegations in the plaint. It was urged that the suit was not maintainable in a Civil Court and that it was barred by Section 11 of the Code of Civil Procedure. Bath the Courts below have dismissed the claim of the plaintiff on the ground that her present claim is barred by the principles of res judicata. The contention for the plaintiff-appellant in her second appeal to this Court is that the lower Courts were in error in holding that hit present suit is barred under Section 11 of the Code of Civil Procedure.

2. In order to decide the question raised in the appeal it is necessary to refer to some of the facts which are disclosed from the evidence on the record. It appears that the last Settlement in the Bulandshaher District, where the property in suit is situate, was made same time in 1916. On the 16th November 1916 the plaintiff together with Musammat Kesar appeared before the Settlement Officer and stated that the names of Ganga Sahai and Fateh Singh should also be recorded as joint tenants 0 the holdings. The General Agent of the zemindar was also present at the time and he filed a written statement accepting the allegation of the two ladies namely, the plaintiff and Musammat Kesar, that Ganga Sahai and Fateh Singh were joint with the ladies in the occupancy holding. On the statement of the parties concerned the Settlement Officer ma de an order directing the entry of the names of Ganga Sahai and Fateh Singh, in respect of the holding. This state of things continued until the 28th March 1919 when a plaint was filed in the Revenue Court by the present plaintiff under Section 95(a) of Act II of 1901 against the zemindar of the village. Musammat Kesar was also impleaded as a defendant. It was stated in the plaint that the plaintiff Musammat Chitto and Musammat Kesar were the occupancy tenants of the holding and as Musammit Kesar had no joined in the plaint she was made a pro forma defendant. Ganga Sahai and Fateh Singh, it was stated, with the collusion of the zemindar and the Patwari had got their names recorded in the revenue papers as joint tenants which was untrue and against the interest of the plaintiff. She asked for the following reliefs namely, (1) it maybe declared that the plaintiff (Musammat Chitto) and Musammit Kesar defendant No. 4, were the sole occupancy tenants of the holding, (2) that the entry of the names of Fateh Singh and Ganga Sahai was farzi and that they were not the occupancy tenants of the holding. The learned Assistant Collector in whose Court the plaint was filed tried the case on the evidence that was tendered by the parties. The contesting defendants denied the allegations of collusion and fraud made in the plaint as also the plaintiff's allegation that they had no right or interest in the occupancy holding. On the 3rd August 1920 after a thorough inquiry the learned Assistant Callector dismissed the claim of Musamntt Chitto. No appeal was preferred from the decree of the Assistant Collector. On the 15th September 1920 the suit out of which this appeal has a risen was filed for the relief mentioned above. From a comparison of the two plaints of Musammat Chitto in the Revenue Court and the Court of the Munsif it would appear that her allegations arc not quite consistent. In the present suit she denies the right even of Musammat Kesar to have any interest in the occupancy holding while in the Revenue Court she admitted her to be her joint tenant. However, apart from any inconsistencies in her negations in the two plaints the question for decision is whether the civil suit of Musammat Chitto is maintainable in view of the provisions of Section 11 of the Code of Civil Procedure. The contention for her is that her suit in the Revenue Court purporting to be under Section 95 of the Rent Act was not really a suit under that section. She was claiming to have the names of Fateh Singh and Ganga Sahai expunged from the Revenue Records. Such a suit is rot contemplated by Section 95 of the Rent Act. The proceedings, therefore, in the Revenue Court were irrelevant and do not operate as res judicata against her present claim In view of the reliefs sought by the plaintiff in the Revenue Court which have already been recited above her contention has no force. She distinctly asked for a declaration that she and Musammat Kesai were the sole occupancy tenants of the holding. She asked this relief against the zemindar whom she had charged with collusion with Fateh Singh and Ganga Sahai In other words she wanted to have her status as an occupancy tenant declared by the Revenue Court.

3. Such a suit is maintainable under Section 05 of the Rent Act in the Revenue Court alone. The balance of authority of this Court is that, if after a decision of a suit of such nature by a Revenue Court the losing party comes to the Civil Court for a relief which would have the effect of setting aside the decree of the Revenue Court the civil suit would not be maintainable and would stand barred by the principles of res judicata. A few cases of this Court on the point maybe mentioned them vide, Motto v. Ramlal 58 Ind. Cas. 772 : 18 A.L.T. 1030 : 43 A. 191, Ram Das Dubri Kosri 77 Ind. Cas. 139 : 20 A.L.J. 606. 44 A. 724 : (1922) A.I.R. (A.) 336, Baljit v. Mahipat 49 Ind. Cas. 118 : 17 A.L.J. 60 : 41 A. 203, Kishore Singh v. Bahadur Singh 48 Ind. Cas. 470 : 16 A.L.J. 933 : 41 A. 97. In the face of these authorities it is not possible for the plaintiff to contend that her present suit is not barred by the principles of res judicata. In my opinion the decree of the Court below is correct. The appeal fails and is dismissed with costs including fees in this Court on the higher scale.


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