Brij Narain Lal Vs Gokul Prasad and Others

Kisch, J.@mdashThis is a Plaintiff''s application arising out of a suit brought by him u/s 9 of the Specific Relief Act which has been dismissed by the Court below.

2. The Plaintiff''s case was that he was the fixed-rate tenant of a certain plot which was part of a larger fixed-rate holding and that within six months of the institution of the suit the Defendant had dispossessed him without any right. The Defendant''s case was that he was the tenant of the plot in question and that the Plaintiff was never in possession of it.

3. The trial Court framed the following issues:

(1) Whether the Plaintiffs had been in possession of the land in suit and have they been dispossessed therefrom ?

(2) Are the Plaintiffs entitled to possession ?

4. The parties agreed to abide by the sworn statement of one Ram Baran Singh as referee. Ram Baran Singh stated on oath that the Plaintiff had been in possession of the plot in suit within six months of the institution of the suit. He added that the parties were co-tenants of the holding of which this plot formed a part. On this latter statement the trial Court framed a third issue:

(3) Is the suit not cognizable by this Court?

5. The trial Court decided the first issue in favour of the Plaintiff on the strength of the statement made by the referee. The Court however held that the suit being a suit between co-tenants for possession the jurisdiction of the Civil Court was barred by Section 230 of the Agra Tenancy Act and accordingly dismissed the suit. The Plaintiff has come to this Court in revision.

6. It is contended on behalf of the applicant that the Court below had jurisdiction to decree the suit and has failed to exercise that jurisdiction. Reliance is placed on Khushnud Husain Vs. Janki Prasad and Another I find it impossible to distinguish the present case from the case cited. In that case it was laid down that where there was no admission in the plaint which would show that the suit u/s 9 of the Specific Relief Act as brought was not cognizable by the Civil Court, such a suit was cognizable by the Civil Court. In the present case the Plaintiff did not admit that the Defendant was a co-tenant. He brought the suit against the Defendant as a pure trespasser. When he had proved that he had been in possession within six months and had been dispossessed by the Defendant he was entitled to a decree and the Court was not called upon to go into the question of title. On this view of the case the application must be allowed.

7. I accordingly allow the application, set aside the decree of the Court below and decree the Plaintiff''s suit with costs in both the Courts.