BABU RAM Vs. RAM NARAIN

JUDGEMENT

(1.) This appeal raises the vexed question of jurisdiction, viz., whether the civil Court or the revenue Court should take cognizance of this case. The plaintiff, who is the zamindar of the, entire village, brought the suit but of which this appeal has arisen in the Court of the Munsif of Etawah on the allegations that one Ram Din Brahman was the occupancy tenant of certain lands specified in the plaint, that he died without any issue and without having made any adoption, that defendants 2 and 3 set up defendant 1, son of defendant 2, falsely as the adopted son of Ram Din with the idea that the occupancy holding should go to those defendants and that as a matter of fact there was no such adoption. The plaintiff accordingly asked for a declaration that Ram Din died without having made an adoption and that the alleged adoption was a mere fiction. The defence was several and among these, one was that the suit was not cognizable by the civil Court, as defendant 1 was a tenant of the plaintiff. The first Court dismissed the suit on the merits holding however that the suit was cognizable by the civil Court. The plaintiff went in appeal, but the respondents contended in the appellate Court that the Munsif was wrong in taking cognizance of the suit. This argument found favour with the learned appellate Judge, and he by his decree dismissed the suit holding that it was not cognizable by the civil Court. We might point out here that if the learned Subordinate Judge was of opinion that the suit was not cognizable by the civil Court, the proper order to make was to return the plaint to the plaintiff for presentation to the proper Court and not to dismiss his suit.

(2.) The plaintiff has come in second appeal and his contention is that the learned Judge of the lower appellate Court was wrong in holding that the suit was not cognizable by the civil Court. The learned Subordinate Judge has cited the case of Jagannath V/s. Balwant Singh A.I.R. 1922 All. 372 and Section 122, Act 3 of 1926, as authorities for his opinion. When the suit was filed Act 3 of 1926 had not yet been placed on the statute book and it cannot therefore be said that the plaintiff was bound to follow the procedure laid down in Section 122 of that Act. Whether the suit was cognizable by the civil Court or not must be judged by the provisions of the N. W. P. Tenancy Act of 1901.

(3.) As regards the case quoted, it has no application whatsoever. In that case the plaintiff admitted that "the defendant was his tenant, but all that he disputed was the class of tenancy. His contention was that the defendant was only a non- occupancy tenant and not an occupancy tenant as the defendant claimed to be. That case therefore does not govern the present case.