BISHESHWAR DAYAL Vs. SALIG RAM

JUDGEMENT

(1.) THIS second appeal by the Plaintiffs raises two interesting questions of law. The first is, whether the deposit made by a sirdar for the acquisition of the privilege of transfer in respect of the entire sirdari holdings under Section 3 of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 enures for the benefit of all the co -sirdars as well, when the applicant expressly claimed the privilege exclusively for himself. The second question is, whether the suit for the partition of a joint holding in which one party had bhumidhari rights and the other sirdari rights lay in the civil court or in the revenue court.

(2.) TO appreciate these questions, it would be necessary to refer to the case of the parties. Mathura Prasad, Ram Autar and Bisheshwar Dayal, Plaintiffs Nos. 1, 8 and 9 exclusively claimed that they had a half share in the bhumidhari holding which they had sold to Plaintiffs Nos. 2 to 7 by a sale deed dated 11th of May, 1957. They claimed that they were in separate possession but in case the court took the view that there had been no partition, they prayed for a partition of their half share. It was also pleaded that the Plaintiff No. 1 and Defendant No. 1, who have descended from common ancestor jointly deposited ten times rent and became bhumidhars of the plots in suit. One Smt. Rajeshwari Devi Defendant No. 6 was impleaded in the suit and it was alleged that if it was found to have a share in the plots in suit the share of the Plaintiffs will be 3/8th and a separate lots for the Plaintiffs be accordingly prepared. The Defendant No. 1 originally was Ram Narain who died during the pendency of the suit and his two sons are Respondents Nos. 1 and 2 in this second appeal. They denied that the Plaintiffs have any share in the disputed holding and further asserted that the Plaintiffs were never in possession over any portion of the plots in dispute. It was denied that they ever paid any rent or made the deposit of ten times rent. It was also asserted that the declaration of bhumidhari of the holding was given only in favour of Defendant No. 1. The names of the Plaintiff No. 1 and his father were wrongly entered and the name of Plaintiff No. 1 was ordered to be expunged from the revenue papers. It was also stated that plot No. 1233 was given in charity to a school and plots Nos. 1128, 1174, 1222 and 1223 were sold to Respondents Nos. 7 and 3 respectively. Lastly, it was contended that the suit was time barred.

(3.) ON appeal by 'the Defendants, two questions were considered by the lower appellate court. Firstly, whether the Plaintiffs were not bhumidhars of the suit property, and secondly, whether the civil court had no jurisdiction to entertain and try the suit. Both these points were decided against the Plaintiffs. In the first place the court held that bhumidhari rights were acquired by the Defendant No. 1 alone and not by Ram Charan, father of the Plaintiffs Nos. 1, 8 and 9, since the application for acquisition of the privilege of transfer had been made only by the Defendant No. 1 Ram Narain. He further held that the Plaintiffs had 3/8th share in the holdings or the suit plots but their status was that of a sirdar. On the second point the court below held that in view of Section 331 and Schedule II of the U.P. Zamindari Abolition and Land Reforms Act, 1950 as it existed in 1957 when the suit was filed, a suit for division of a holding of a sirdar lay in the revenue court and consequently, the civil court had no jurisdiction to entertain or try the suit. The court instead of returning the plaint for presentation to the revenue court dismissed the suit. In this appeal apart from two questions to which I have referred to earlier, a third question was also raised namely, that the court below was in error in not returning the plaint for presentation to the revenue court and in dismissing the suit. In my opinion this is a subsidiary question which will arise only if it is found that the civil court had no jurisdiction to try the suit. I propose to take up the point of jurisdiction first in this appeal.