LAWS(ALL)-1956-11-26

THAKUR KHEDAN SINGH Vs. THAKUR SATYADEO SINGH MINOR SON OF THAKUR RAM ADHAR SINGH UNDER THE GUARDIANSHIP OF THAKUR RAMBADAN SINGH SON OF THAKUR TRIBHUWAN SINGH R/O VILLAGE BARTHARA, PARGANA KATCHER DISTRICT BANARAS AND THAKUR RAM SURAT SINGH AND OTHERS

Decided On November 23, 1956
Thakur Khedan Singh Appellant
V/S
Thakur Satyadeo Singh Minor Son Of Thakur Ram Adhar Singh Under The Guardianship Of Thakur Rambadan Singh Son Of Thakur Tribhuwan Singh R/O Village Barthara, Pargana Katcher District Banaras And Thakur Ram Surat Singh And Others Respondents

JUDGEMENT

(1.) This is an application by a Defendant under Sec. 115 of the Civil Procedure Code for revising an order made by the court below recalling an issue which had been remitted by it to the revenue court for disposal under the provisions of Sec. 288 of the U.P.Tenancy Act.

(2.) One of the contentions raised in the case before the court below was in regard to the tenancy rights which, according to the contention of the Defendants, had accrued to them under a lease. On that contention being raised the court below framed an issue to that effect and that issue was issue No. 8 in the array of issues. The issue was sent to the revenue court as the civil court was bound under the law to send an issue regarding tenancy rights for disposal to a revenue court. Subsequent to this, an application was made on behalf of the plaintiffs to the effect that the issue that had been sent down for disposal to the revenue court was redundant in view of the fact that the case could be disposed of without reference to that issue and therefore it was prayed that the court below may recall the issue from the revenue court and proceed with the case. The court below agreed with this contention of the plaintiffs and has therefore recalled the issue. It has been contended on behalf of the applicant that the court below had no such power under the law. Under Sec. 288 a civil court is bound to remit an issue to the revenue court in a case where any question regarding tenancy right arises and where such question has not been previously determined by a court competent jurisdiction. There can be no doubt that in this case a question regarding "tenant right" had arisen, and therefore the issue that was framed and sent to the revenue court was properly framed and sent having regard to the provisions of Sec. 288 of the U.P. Tenancy Act. Whether that issue was redundant or not was not a matter which could be gone into, at any rate, after it had once been sent for disposal to the revenue court. There is no provision in the U.P. Tenancy Act for recalling of an issue from the revenue court by the civil court. In our opinion, the order of the court below was clearly without jurisdiction and must therefore be set aside.

(3.) We accordingly set aside the order of the court below dated the 1st of Dec. 1951. The opposite party has not appeared before us through counsel to oppose his petition. We therefore direct that the parties bear their own costs of this petition. The interim order of stay is discharged. The record of the case will be sent down to the court below forthwith who shall proceed to try this case in accordance with law.