DIMANSINGH Vs. RAMESHWAR

JUDGEMENT

(1.) The respondent's suit was for declaration of pucca tenancy rights and possession on the allegations that his father Chakrapan alias Chakola was the Pukhta Dakhilkar (occupancy tenant) of survey Nos. 3136, 3137/1, 3137/2 and 3138 in village Bagpura, Pargana Morena. Chakrapan died in Samvat year 1995. At that time the plaintiff was of about two or three years and was the only heir of the deceased Chakrapan. However, taking advantage of his minority, the Patwari struck out his name in Samvat year 1996, and defendant Diman Singh, with the collusion of the Zemindar and the Patwari, dispossessed the plaintiff by wrongfully occupying the land. The plaintiff attained the age of majority on Baisakh Sudi 12, Samvat 2012 (corresponding to May 25, 1953). This suit was filed on November 4, 1954. The suit was resisted by the defendant on several grounds. A decree in favour of the Plaintiff was passed by the trial Judge and the same has been maintained by the first Appellate Court.

(2.) Shri Patankar first of all contends that the Civil Court had no jurisdiction to try the suit because under sections 325 and 326 of the Qanoon Mal Gwalior State it was only the Revenue Court which was competent to hear this suit. The argument is based on the fact that cause of action arose on July 1, 1939, when Qanoon Mal was in force. In my opinion this contention is untenable. It is the date on which a suit is instituted that the propriety of the remedy will be determined. It is true that the right to sue and get the defendant dispossessed accrued to the plaintiff, as alleged in the plaint on 1-1-1939 but the suit was instituted on 4-11-1954. On the last mentioned date sections 325 and 326 stood protants repealed by virtue of section 41 of the Zamindari Abolition Act. Provisions of Pt II of the Madhya Bharat Tenancy Act, Samvat 2007 became applicable on the abolition of Zamindari on 2-10-1951, and similar provisions of Qanoon Mal ceased to apply on and from that date In part II of the Madhya Bharat Tenancy Act fall section 91, 92 and 93. It is therefore the M.B. Tenancy Act which be came applicable and the plaintiff could have instituted a suit under that Act for the reinstatement on the ground of unlawful dispossession. As soon as I find that section 91 of the M.B. Tenancy Act is applicable, it cannot be doubted that the Civil Court has jurisdiction to entertain such a suit. I am unable to accept Shri Patankar's argument that section 93 of that Act allows a civil suit to be instituted only after the remedy provided in sections 91 and 92 has been exhausted. There is no provision in the Tenancy Act which takes away the powers of the civil Court to try the question of title. Section 147 of the Tenancy Act does not oust the civil Court of its jurisdiction because neither section 91 or 92 nor any other section of the Tenancy Act provides a title suit. It must then be held that the civil Court had jurisdiction to try the suit.

(3.) Then it is argued by Shri Patankar that on the question of the plaintiff's title the appellate Court did not appreciate the evidence of the parties fully. Both the Courts relied on the evidence of Totaram, Meghsingh and Murlidhar. Learned counsel strenuously emphasises those portions of their statements where they said that the plaintiff appeared in the village several years after Chakrapan's death and claimed to be his son and that they all just believed him to be Chakrapan's on. After carefully perusing the judgment of the appellate Court I find that this argument was considered by it and in view of the entire evidence it definitely found that the plaintiff was Chakrapan's son. That being a concurrent finding of the two Courts below, however erroneous it may be, I cannot go into it. (Pattabhiseetaramaya, 1959 AIR(SC) 57).