ABDULLA BIN ALI Vs. GALAPPA

JUDGEMENT

(1.) The dispute in the present appeal by special leave centres round survey plots Nos. 149 and 150 measuring 17 acres 23 gunthas and 11 acres and 35 gunthas respectively. at Yadgir, District Gulbarga. The disputed plots admittedly belonged to one Galappa. The appellants' father purchased the aforesaid two plots under a registered sale deed from Galappa in 1917. As Galappa was a minor at that time the sale deed was executed by his mother, Tayamma as a guardian.

(2.) In 1919 Tayamma filed an application before the Tahsildar alleging that she executed only a mortgage deed and not a sale deed in favour of the appellants' father. The Tahsildar, however, negatived her claim and came to the conclusion after investigation that Tayamma executed a sale deed and not a mortgage deed in favour of the appellants' father. She went up in appeal but the same was dismissed and the parties were directed to approach the civil court for a proper redress of the grievances. In the meantime, Saibanna the brother of Galappa, was inducted as a tenant. In 1982 the father of the appellants filed a suit for the declaration of his title and ownership in respect of the disputed lands against Galappa and his brother Saibanna which was decreed. The father of the appellants died and he was succeeded by the appellants. Saibanna continued to pay the rent for sometime but thereafter he fell in arrears for the period 1951 to 1954. The appellants, therefore, filed an application for recovery of the said amount in the court of the Tahsildar. In that proceedings Saibanna, however, denied the title of the appellants as also the tenancy. The appellants also initiated proceedings for the correction of tenancy register and there also the tenant denied the title of the appellants. The application. for the recovery of arrears of rent as well as for the correction of tenancy register were dismissed and the appellants were directed to approach the civil court as the dispute between the parties involved a question of title. In the circumstances the appellants were obliged to file a suit for possession and mesne profits treating the defendants-respondents as trespassers. Saibanna has since died and he is now represented by his son Shivappa.

(3.) The suit was resisted by the defendants-respondents on a number of grounds but it is not necessary to refer to all those pleas for the disposal of the present appeal. One of the pleas though not specifically taken in the written statement but allowed by the Court to be urged was the question of jurisdiction. According to the defendants-respondents the civil Court had no jurisdiction to try the suit on the own allegations made in the plaint inasmuch as the plaintiffs-appellants had pleaded that defendant No. 2 was the tenant of the disputed plots. They set up the bar of Ss. 32 and 99 of the Hyderabad Tenancy and Agricultural Lands Act. The trial Court as well as the first appellate Court decreed the suit deciding all the issues in favour of the plaintiffs-appellants. The High Court, however, set aside the judgment and decree of the Courts below and held that the civil Court had no jurisdiction to try the suit on the allegations of the plaintiffs in the plaint, In its opinion the plaintiffs-appellants could get the relief of possession only from the revenue Court under S. 32(1) of the said Act and that S. 99 stood as a complete bar to the entertainment of the suit by the civil Court on the allegations in the plaint and on that finding it dismissed the suit. Therefore, the only point for consideration in this appeal is whether the civil Court had jurisdiction to try the suit.