B BINDRABAN KATIAR Vs. GANGA RAM

JUDGEMENT

(1.) This is a defendant's appeal under Section 246, Agra Tenancy Act, (Act 3 of 1926). The suit was for arrears of rent for the years 1338 to 1341 Fasli in respect to plot No. 599 in patti No. 8 of a certain village. It appears that there was a private division of plots in this patti under a registered instrument between the cosharers, as a result of which the plot in dispute fell to a cosharer named Parmeshwari Dayal. In 1915 a lady named Mt. Savitri purchased the proprietary rights of Parmeshwari Dayal, and in the following year she executed a deed of wakf in favour of the Pathshala Trust Committee. On 10 August 1921, which was the Fasli year 1329, the Pathshala Trust Committee executed a deed of lease in favour of the defendant for a hundred years at a rental of Rs. 50 per annum. At that time a cosharer named Radha Kishen was in cultivatory possession of this plot as a tenant, and it was stipulated in the deed of lease that the lease should come into effect when Radha Kishen was ejected. In 1331 Fasli the defendant's name was entered against this plot for the first time; but in 1334 Fasli a person named Ram Dayal was recorded as tenant, and this entry continued until 1339 Fasli, in which year the defendant was shown as being in adverse possession of the holding. And this entry has continued ever since. Meanwhile, on 24 January 1930 which was the Fasli year 1337, the Pathshala Trust Committee had executed a theka of its proprietary rights in favour of the plaintiff-respondent, and the latter instituted the suit out of which this appeal has arisen against the defendant- appellant for arrears of rent, treating him as a tenant under the deed of lease dated 10 August 1921.

(2.) The defence was that this deed of lease was never effectuated for the reason that Radha Kishen remained in possession and was not ejected, and it was pleaded that the defendant came into possession of the holding for the first time in 1340 Fasli and that he did so in the capacity of a proprietor and not in the capacity of a tenant. It was contended that the defendant was holding the plot in dispute as his khudkasht and that the plaintiff's only remedy against him was to institute a suit for profits. Although there was no controversy as regards the defendant's proprietary interest in the plot in suit as a cosharer of the patti, the trial Court remitted an issue under Section 271, Tenancy Act, to the Civil Court as to whether the defendant was the tenant or the proprietor of the holding in suit. The learned Munsif found that he was a proprietor and not a tenant of this plot, and thereafter the Assistant Collector proceeded to dismiss the suit. There was an appeal to the Collector by the plaintiff, and the defendant filed a cross-objection in which he challenged the Collector's jurisdiction on the ground that there was a question of proprietary title between the parties. The Collector repelled the plea of want of jurisdiction and found that the defendant was a tenant of the plaintiff. He accordingly allowed the appeal and decreed the suit. From that decision there was an appeal to the District Judge under Section 243 of the Act, but the learned Judge held that no appeal lay to his Court for the reason that no question of proprietary right was in issue between the parties in the trial Court and in the first Appellate Court. The learned Judge accordingly directed that the memorandum of appeal be returned to the defendant-appellant "for presentation to the proper Court."

(3.) Learned counsel for the defendant-appellant pleads that a question of proprietary right was in fact in issue between the parties and that the view taken by the learned Judge of the lower Appellate Court is erroneous. Section 271, Clause (1) of Act 3 of 1926 provides that "if...in any suit or application filed in a Revenue Court against a person alleged to be the plaintiff's tenant or under Section 44 the defendant pleads that he is not a tenant but has a proprietary right in the land," the Revenue Court shall frame an issue on the question of proprietary title-unless such question has already been decided by a Court of competent jurisdiction-and shall submit the record to the competent Civil Court for the decision of that issue. Expln. II to this Section provides as follows: A question of proprietary right does not include the question whether land in the actual possession of a proprietor thereof is held by such proprietor as his sir or khudkasht or as a tenant or sub-tenant.