LALA ALIAS KHACHERU Vs. RAM CHANDER

JUDGEMENT

(1.) THE facts which have given rise to this appeal are shortly stated as follows: THE plaintiff-appellant Lala sued in the Court of the Munsif of Ghaziabad for a declaration that a lease given by a distant relative of his to Ram Chandra was invalid and inoperative and not binding on him, the plaintiff, and that possession of the land in respect of whiah the lease was given should be delivered to him, as also mesne profits during the period that the lessee had been in possession. It was alleged in the plaint that Jhandu gave the lease on the 26th of February 191a to Ram Chandra in respect of the property of Lala at the time that Lala was a minor THE claim was brought against Ram Chandra and Jhandu was made a proforma defendant Ram Chandra urged various pleas in defence. He stated that the lease was given by the guardian of the plaintiff and that the elaim was not maintainable in a Civil Court. THE learned Munsif who tried the case found that Lala was a minor on the 26th of February, 1912, that Jhandu was not a certificated guardian nor a near relative but purporting to act on behalf of Lala, had given the disputed lease, the proceeds of which did not benefit the minor, and that the latter was entitled to recover possession of the leased property as also mesne profits during the possession or the lessee. THE claim was accordingly decreed. On appeal the learned Subordinate Judge disagreed with the first Court and reversed its decree. THE judgment under appeal is not quite intelligible for example, the learned Subordinate Judge remarks: "It is proved from the plaintiff s evidence that Jhandu, defendant No. 2, wag plaintiff s untie. Plaintiff was a minor but of a discretionary age and defendant No. 2 was his sarabarahkar". From the evidence on the record it appears that the plaintiff was about fifteen or sixteen years old at the time that the disputed lease was given. Under the law he was a minor at the time, and it is for the lessee to show that the lease granted to him was for the benefit of the minor. He has failed to discharge the burden of proof that lay on him. THE lease of the 26th of February 1912 is clearly not binding upon the minor. For the contesting respondent the decree of the lower Appellate Court is sought to be supported on the objection that the suit of the plaintiff is not maintainable in a. Civil Court. No such objection was taken before the lower Appellate Court. It cannot be entertained here. But apart from that there is no force or substance really in the objection. THE plaintiff sought to recover possession of the land by proof that the lease by virtue of which Ram Chandra had got possession of the land was not binding upon him, the plaintiff. Such a suit is clearly maintainable in a Civil Court. In our opinion the decree of the first Court is correct. We allow the appeal, set aside the decree of the lower Appellate Court and restore that of the first Court. Piggott, J.

(2.) IN concurring in the above judgment I reserve my opinion as to whether the suit for ejectment could have been brought in the Court of an Assistant Collector. I am satisfied that, if the objection as to jurisdiction had been taken in the Court of the District Judge, he could have heard the appeal on the merits: it would have been altogether improper for us to have allowed the objection as to jurisdiction to be taken in second appeal.