Pt. Dwakka Prasad Shukla Vs Ram Kishon and Others

Kidwai, J.@mdashThese two appeals arise out of two suits instituted by Ram Kishen and others against the appellant in the court of the Munsif Partabgarh, for ejectment of the defendant on the ground that he was a sajhidar in the cultivation but had refused to vacate on being asked to do so and had recourse to proceedings u/s 145 Or. P. C. as a re-suit of which he had been given possession over the lands by the order of the sub-Divisional Magistrate Kunda on the 19th of March. 1945.

2. The defence was that the defendant was a co-tenant of the land in suit; that be had been in possession for a considerable length of time, that in any case he had acquired the rights a hereditary tenant u/s 180 clause (2; and that Section 183 of the U.P. Tenancy Act barred the suit.

3. An issue as to tenancy right was framed and remitted to the revenue court. The revenue Court found that the plaintiffs were the hereditary tenants of the plots in suit and that the defendant was not a tenant. It was also found that the plaintiffs had not lost their rights by reason of Section 180; clause 2 of the U.P. Tenancy Act. When these findings were returned by the revenue court, the learned Munsif found that Section 83 did not bar the suit since the dispossession was not by the landholder or by any person claiming through the landholder* As a result of the findings the suits of the plaintiffs for possession were decreed and they were awarded damages.

4. The defendant went up in appeal in both the cases but the appeals have been dismissed by the learned Civil Judge of Partabgarh. The defendant has now come up in second appeal Two points have been . argued by his learned counsel firstly that Section 180 of the U.P. Tenanoy Act bars the suit since in proceedings u/s 145 Cr. P. C. the defendant had pleaded that he was a co-tenant and secondly that by virtue of Section 295 (a) of the U.P. Tenancy Act as amended in 1947 the defendant was entitled to retain possession of the land for a period of five years since he was on the statement of Ram Krishen himself a subtenant.

5. On the first point reliance is placed noon, a decision given by a Bench of this Court in second Bent Appeal No. 116 of 1946 which followed the decision of a full Bench of the erstwhile Allahabad High Court in D.N. Rege, Solicitor through Gopal Lal Mukhtaram Vs. Kazi Muhammad Haider and Another, . These two decisions are; however, not applicable to this case. In those cases the suits were instituted by the proprietor and the question was whether a proprietor could sue a person who had already claimed only tenancy rights, and not proprietary rights in the revenue Court. It was held that if the defendant claims proprietary rights the suit lies in the Civil Courts but if a defendant has made it dear before the suit is brought that he claims only the tenancy rights the revenue Court is the proper forum. Those decisions govern the case when a person who claim to be the proprietor sues and they are not applicable to cases in which it is a tenant who sues With regard to the right of a tenant to sue it was laid down in Ori Lal v. Ganeshi (5), by a Pull Bench of the Oudh Chief Court that a suit by a tenant against a trespasser did not lie u/s 180 of the U.P. Tenancy Act and that consequently the jurisdiction of the Civil Court was not barred. It is true that the view of the erstwhile Aliahabad High Court was not the same, but the legislature has re-organized the force of the reasoning adopt ed in Ori Lal v. Ganeshi 1947 O.W.N. 42 : 1947 A.W.R. (C.C.) 7 and has amended Section 180 so as to remove the defeats pointed out in that decision and has now brought cases filed- by tenants even against trespassers within the purview of Section 180. This was, however, done after the present suits had been decided by the Civil Court, and the jurisdiction of that Court cannot, therefore, be affected by the subsequent alteration of the law. Section 180 read with Section 242 of the U.P. Tenancy Act do not, therefore, bar the jurisdiction of the Civil Court.

6. With regard to the Second point all that requires to be said is that this point was never raised in the Court below and it is a point which depends not only upon an interpretation of law but also upon the establishment of certain facts In these circumstances it cannot be taken in second appeal. The result is that both these appeals fail and are dismissed with costs.