GURCHARAN KUAR Vs. DEOKINANDAN KUAR

JUDGEMENT

(1.) THE facts of this case are simple. THE plaintiff-appellant before me is the father of the defendant respondent. THE property in dispute between them is a part of a fixed rate tenancy. THE father brought a suit; in the Revenue Court for the ejectment of the son on grounds specified in Section 50 of the Tenancy Act. THE son in reply pleaded that he and his father constituted a joint Hindu family, and that that family was the owner of the rights in the land and that he was not his father s sub-tenant. I may note here that the father is the usufructuary mortgagee of the fixed rate tenure and not the original owner. THE Court of first instance, that is, of the Assistant Collector, decided in favour of the plaintiff and decreed the ejectment. THE defendant filed an appeal in the Court of the District Judge. THE District Judge allowed the appeal and dismissed the suit. THE plaintiff has some here in second appeal. THE first point taken before me is that the lower Appellate Court had no jurisdiction as no appeal laid to it from the decision of the Assistant Collector. It appears that this plea was not taken in the Court below as it might well have been taken, Under Section 177 of the Tenancy Act, an appeal lies to the District Judge from suits in group (c) of the Schedule attached to the Act in which the question of proprietary title has been in issue in the Court of first instance and is a matter in issue in the appeal. It has been ruled clearly, in a case very similar to the present one, by a Bench of this Court that the words "proprietary title" do not refer to a disputed title to a tenure or a tenant s right but they include only titles to the Zamindari and not titles to tenant s right. THE decision is to be found in Nirajan v. Gajadhar A.W.N. (1908) 45 : 30 A. 133 : 5 A.L.J. 71. THE decision of a single Judge of this Court, was considered in that case and was overruled. In that case also there was a dispute as to a fixed rate tenancy and the dispute was as to the title to the tenure just as it is in the present case. It is, therefore, clear that no appeal laid to the Court below. I must, therefore, allow the appeal. I set aside the decree of the lower Appellate Court and direct that the memorandum of appeal be returned to the defendant respondent, who was the appellant in that Court, so that he may be able to present it to the proper Court. THE plea of jurisdiction was not taken in the Court below and, in these circumstances, I direct that the parties bear their own costs both of this Court and of the lower Appellate Court.