NARAYANRAO PURSHOTTAMRAO Vs. JUMARATBI MADDE KHAN

JUDGEMENT

(1.) THIS is an appeal under Order 43, rule 1 of the Civil Procedure Code against an order of remand passed under Order 41, rule 23 of the Code. The plaintiff's suit was dismissed by the trial Judge on the ground that a civil suit was not competent. The first appellate Court has reversed that finding and, holding that the suit lay in the civil Court, remanded the case.

(2.) THE plaintiffs' suit is for recovery of possession of fields numbers 119/2 and 124/2 in village Urnot Tahsil Basoda. Jurisdiction of the civil Court was challenged by Narain Rao defendant on the ground that previously the plaintiff had instituted a suit in the Court of the Tahsildar under the provisions of the Quanoon Mal Gwalior State and the suit having failed in all the Courts upto the Board of Revenue, the present suit was barred by section 377 of the Quanoon Mal. It is the plaint which must determine whether the suit is competent or not. It was alleged in the plaint that a partition took place of village Arnot in which 12 annas share of Ganga Prasad (defendant No. 2) was separated by metes and bounds from the 4 annas share of Narain Rao. Out of the land which fell to his share, Ganga Prasad let out to the plaintiff fields Nos. 119/2 and 124/2 under a patta dated July 17, 1944; Ganga Prasad gave possession to the plaintiff of the demised land; Ganga Prasad was paid lagan by the plaintiffs upto Samvat 2007 and thereafter he paid lagan to the patel up to Samvat 2011; however on June 15, 1945 Narain Rao defendant had unlawfully dispossessed him and thereafter refused to restore possession. From these allegations it is clear that the plaintiff's suit is based on his right to possession by virtue of the patta granted to him by Gangaprasad.

(3.) SINCE I find that the suit is based on the plaintiffs' right to possession, it is (sic) and I see no error in the ultimate conclusion reached by the learned District Judge.