ZABAR SINGH Vs. BALDEO PRASAD

JUDGEMENT

(1.) This second appeal arises out of a suit for the cancellation of a deed of lease. The plaintiffs-respondents alleged that they were the chief tenants of certain agricultural plots and a sub-lease of those plots had been obtained by the defendants-appellant from them by fraud. They, therefore, brought this suit for the cancellation of the sub-lease. Both the lower Courts have held that the fraud alleged by the respondents has been proved and, therefore, the sub-lease is liable to be cancelled. The trial Court consequently decreed the suit and the lower appellate Court dismissed the defendant's appeal against that decree. In this second appeal the only question of law, that has been argued by the learned counsel for the appellant, is that the civil Courts had no jurisdiction to entertain the suit because some relief in respect of the cause of action alleged by the respondents could have been granted by the revenue Court to them under Section 60, U. P. Tenancy Act.

(2.) Section 60, U. P. Tenancy Act, gives the land-holder a right to bring a suit against any person claiming to be a tenant of a holding for a declaration of right of such person. The contention of the learned counsel for the appellant is that the sub-lease purported to grant tenancy rights in agricultural land to the appellant and the cancellation of the deed of lease will in effect, take away this right of tenancy of the defendant-appellant. The lower appellate Court, when dealing with this point, held that this was a case where the relief sought was the cancellation of a document on the ground of fraud and not a declaration of the right of tenancy and consequently the civil Court had jurisdiction to entertain the suit. I do not think that any cogent reasons have been advanced by the learned counsel for the appellant which would induce me to disagree with the view taken by the lower appellate Court. There is no doubt that, if the deed of sub-lease is cancelled in the suit, the right of tenancy, which might be claimed by the defendant-appellant under it, would no longer be open to be claimed by him, but this fact cannot make the present suit a suit for a declaration that the defendant-appellant has no right as a sub-tenant. Learned counsel for the appellant referred me to a Division Bench decision of this Court in Ram Sewak Lal v. Bashist, 1947 ALL. L. J. 683 where it was held that in order to determine the true nature of the relief claimed in a suit, the pith and substance and not the form in which the relief may be couched has to be considered. With respect I may say that I entirely agree with the general proposition of law laid down by the Bench but it appears to me that even the application of this principle is of no assistance to the appellant. In that case, the plaintiff had instituted a suit claiming the following relief:

(3.) As a result, the appeal fails and is dismissed with costs.