WALI MOHAMMAD Vs. TAQI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit instituted by the plaintiff appellant for the recovery of possession of two plots Nos. 232 and 233, in village pure Hiraman, pergana and district Pratapgarh, on the allegations that the plaintiff was a tenant of the plots in dispute and that the defendants had taken wrongful possession of these plots in April, 1947. The suit was instituted on the 9th May, 1947. The defendants contested the suit. They admitted that the plaintiff was a tenant of the plots in dispute, but contended that they were co-tenants along with the plaintiff in possession of the plots. In the alternative they pleaded that they had obtained tenancy rights by adverse possession. The trial court decreed the claim in respect of plot No. 233 but rejected the claim for possession of plot No. 232 on the ground that the defendants had acquired tenancy rights in this plot under Section 180 (2) of the U. P Tenancy Act. The plaintiff then went up in appeal. The lower appellate Court came to the conclusion that the suit in respect of the plot No. 232 could not be instituted in the Civil Court as the defendants were in permissive possession of that plot -- a fact which was admitted by the plaintiff, presumably, before the lower appellate Court. The appeal was consequently dismissed by the lower appellate Court and the plaintiff has come up in second appeal

(2.) This appeal came up before one of us sitting singly and it was pointed out that the only question which was to be decided was whether the suit, which was pending in the Court of the Munsif, Partabgarh, in June 1947, should have been transferred to, and heard and decided by, the Revenue Court, on account of the amendment made by Act X of 1947. As there was divergence of judicial opinion on this point it was thought fit that this case should be referred to a Pull Bench. It appears, however, that the question, for the decision of which mainly this appeal was referred to the Full Bench, did not really arise in this appeal. It was pointed out, it seems, by the learned Counsel for the parties that the question of jurisdiction was the main point, but on an examination of the case it appears to us now that there is another point on which this appeal can be disposed of without going into the question whether it was the Civil Court or the Revenue Court which had jurisdiction to hear the case after the amendment of the U. P. Tenancy Act, made by Act X of 1947. This suit was instituted on 19-5-1947, if the suit as framed was within the exclusive jurisdiction of the Revenue Court even before the amendment, the amendment made by Act X of 1947 would have no effect, as the suit could not be entertained by the Civil Court even before the amendment.

(3.) In the present case the plaintiff had come to Court on the allegation that the defendant had wrongfully taken possession of the plots in April, 1947, but during the course of the trial it transpired that this allegation of fact made by the plaintiff was not correct and that the defendants had been in possession for a number of years before the suit was instituted. The plaintiff also, it appears, conceded before the lower appellate Court that the possession of the defendants on plot No. 232 was permissive. In view of this statement we have to find out whether the suit in respect of plot No. 232 could, even before the amendment made by Act X of 1947, be entertained by the Civil Court. Reliance has been placed on a decision of the erstwhile Chief Court reported in Ori Lal v. Ganeshi, AIR 1947 Oudh 104 (FB) (A) in which a similar question of jurisdiction arose, and the view taken by that Court was that the word "tenant", used in Section 180 in the expression, "without the written consent of the person entitled to admit him as tenant" did not include a sub-tenant. A tenant has been denned in the U. P. Tenancy Act in Section 3 (23), and the definition is as follows: