BABA MAHADEO DAS Vs. SATYANDRA KUMAR

JUDGEMENT

(1.) THIS appeal has been referred to this Pull Bench on account of a supposed conflict between two Full Benches D. N. Rege v. Kazi Muhammad Haider, 1949 ALL, L. 3, 369 (F. B.) and mahadeo Prasad v. Jokhan Ram, A. I. R. 1947 oudh 133 (F. b.), and for an authoritative decision on the point involved in the case. The facts briefly are us follows.

(2.) THE appellant is one of the plaintiffs in the suit which has given rise to this appeal. He along with other plaintiffs, who have been arrayed as pro forma respondents, filed a suit in the Court of the Civil Judge, Banaras, for recovery of possession over four plots of land which they claimed to bo grove-land. According to the plaintiff's the original grove-holder of the plots was one bhawani Mali who sold them to one Birja Mali in the year 1849. Birja Mali made a usufructuary mortgage of the plots to Jagat Earn Udasi by a deed dated 18-5-1851. Mahadeo Das, a successor-in-interest of Jagat Ram Udasi, treating the plots as his own property, usufructuarily mortgaged them to one Gajadhar Sonar in the year 1907. It will be noted that by this time the sixty years' period of limita-tion for redeeming the original mortgage of 1851 had not expired, but the original mortgagors do not seem to have ever claimed the property. In 1942 the plaintiffs, who are successors-in-interest of Mahadeo Das, brought a suit for redemption of the usufructuary mortgage executed by Mahadeo Das against Gajadhar, the mortgagee, and also impleaded the defendants-respondents as defendants to the suit on the ground that they were in possession of the plots without any right. In this suit the defence of the defendants-respondents was that they were not trespassers but were the tenants of the land, having succeeded to the interest of Raja Moti Chand who had purchased the tenancy rights of the original tenant Birja mali through various sale-deeds. The civil Court decreed the suit for redemption against gajadhar Sonar but exempted the defendants, respondents from the suit on the ground that they were not proper parties in a suit for redemption against the mortgagee, and that a separate suit might be filed against them if the plaintiffs be so advised. The plaintiffs, then, in 1946, brought the suit, which has given rise to this appeal, in the Court of the Civil Judge for possession against the defendants-respondents, as already stated. In the plaint it was clearly mentioned that the laud was grove-land, and that the defendants claimed to be the tenants of the land through various sale, deeds. It was also alleged that the defendants had not acquired any rights in the plots by virtue of the aforesaid sale-deeds. The defence to the suit, in the main, was that the defendants-respondents were tenants of the plots in dispute and were also permanent lessees, and that the Court had no jurisdiction to hear the suit. An application was made by the defendants to the Court below praying that the issue of tenancy right be referred to the revenue Court. This application was rejected. Ultimately, however, the Court below came to the conclusion that the suit was not triable by the civil Court but was triable by the revenue court, and ordered the return of the plaint for presentation to the proper Court. Against this order the present appeal was filed in this Court by one of the plaintiffs, and the question which was canvassed before the Bench, before whom the case came up for hearing in the first instance, was whether the civil Court had juris-diction to entertain the suit. Before us another question has been raised--whether in view of the Zamindari Abolition Act read with the Zemindari Abolition and Land Reforms Order, 1952, vide Notification No. 5569/1-A-548-1952, dated 26-8-1952, the suit should remain in the civil Court and should be tried by that Court.

(3.) AS pointed out by us before, the plaintiff stated in the plaint that the land was grove-land, that the defendants claimed to be the tenants of the land, having acquired the rights of the original grove-holder or tenant. The case, therefore, was one in which a claim was made by a grove-holder that he had been dispossessed by a person who claimed to hold the land through the landholder. The section of the U. P. Tenancy Act which is applicable to such a suit is Section 183 read with Section 206 (e ). Under Section 183 a tenant ejected from or prevented from obtaining possession of his holding or any part thereof, otherwise than in accordance with the provisions of the law for the time being in force by-- (a) his land-holder or any person claiming as landholder to have a right to eject him, or (b) any person admitted to or allowed to retain possession of the holding by such landholder or person, whether as tenant or otherwise, may sue the person so ejecting him or keeping him out of possession (i) for possession of the holding; (ii) for compensation for wrongful dispossession etc. Although Section 183 in terms applies only to tenants, (and grove-holders are not tenants except for certain purposes), yet Section 206 (e), which applies to grove-holders, makes S- 183 applicable to grove-holders as well. Again, section 183 applies when the disputed property is a holding. Holding is denned as a parcel or parcels of land held under one lease, engagement or grant, or in the absence of such lease, engagement or grant under one tenure. Land includes grove-land. Therefore, a holding includes both a grove-holder's holding as well as a tenant's holding. By reason of the allegations in the plaint that the defendants were claiming as tenants the suit was, therefore, clearly cognizable by the revenue Court when it was instituted in the Court below.