RAM IQBAL RAI Vs. TELESSARI KUARI

JUDGEMENT

(1.) This revision arises in the following circumstances: The plaintiff filed a suit in the Court of the Munsif of Ballia for a declaration of her title to 17 bighas odd of tenancy including two groves, and in the alternative for recovery of possession against the defendants. She of course did not implead the landholder. In paras. 6,7 and 8 it was admitted that defendant 1, although he had no right to the property had got his name entered in the column of remarks as being in possession of a portion of the plot, that the name of defendant 2 was recorded in the revenue papers though merely for her consolation that the zamindar applied for the expungement of the name of the defendant (defendant 1), from the record on which defendant 1 took objections; later on the zamindar in collusion with defendant 1 had his application struck off and although the plaintiff has been in possession of the lands in dispute defendant 1 on the strength of the said order was interfering with the plaintiff's possession. She alleged that although the name of defendant 2 stood recorded in the papers jointly with that of the plaintiff she was really not objecting to the plaintiff's rights. She claimed a declaration of title and in the alternative recovery of possession if by reason of the entry of the name of defendant 1 along with that of the plaintiff it be c7onsidered that the plaintiff has been dispossessed.

(2.) The defendant denied that the plaintiff was the tenant of the lands in dispute and set up his own tenancy and claimed that he was paying rent to the zamindar. He further pleaded that the suit was not cognizable by the civil Court. The learned Munsif came to the conclusion that the suit ought to have been filed in the revenue Court and returned the plaint for presentation to the proper Court. On an appeal from this order preferred by the plaintiff the lower appellate Court has come to the conclusion that the suit was cognizable by the civil Court and has accordingly set aside the order returning the plaint and remanded the case to the Court of first instance for restoration to its original number and disposal according to law.

(3.) Defendant 1 has come up in revision before us and challenges the propriety of the order of the lower appellate Court.