BHAUNI Vs. RAM DAYAL

JUDGEMENT

(1.) WE think that this appeal must prevail. The facts are these :--The appellant owned a biswa 5 biswansi Zimindari share. He sold I bisma out of that share together with certain sir plots of land to three persons. The present plaintiff brought a suit for pre-emption in respect of that sale and obtained a decree. Subsequently the plaintiff instituted the present suit for recovery of possession of the sir plots. His allegation was that the defendant had, by a deed of relinquishment executed on the same date on whish the sale-deed had been executed, given up his ex proprietary rights in regard to the sir land; that the original vendees had obtained possession of the land and let it to third parties; that the plaintiff after his decree for pre eruption was also in possession but that the defendant had dispossessed him, On this allegation the plaintiff claimed to recover possession. Amongst the pleas raised by the defendant was a plea to the effect that be was the ex proprietary tenant of the land in question that he was the tenant of the plaintiff and other co-sharers and that the suit was not maintainable in the Civil Court and was not maintainable at the instance of the plaintiff alone. He relied upon the provisions of Section 202 of the Tenancy Act. The Court of first instance overruled this plea and so did the louver Appellate Court. The lower Appellate Court in its judgment observed that the plea of Section 202 was probably sound, but that in view of the provisions of Section 197 the Court could dispose of the appeal, as all the materials were before it. The view of the learned Judge as to the applicability of Section 197 is, in our opinion, not correct. That Section could not apply to the present case. There was no decision by a Revenue Court from whish an appeal could be preferred to the District Judge. Section 202 lays down a certain procedure in regard to suits relating to agricultural land in which the defendant claims to be a tenant of the plaintiff. If a defendant raises the plea that he is a tenant of the plaintiff, it is the duty of the Court under Section 202 to refer the defendant to the Revenue Court and to decide the case in accordance with the decision of the Revenue Court, In the present suit, the Court of first instance did not follow that procedure. Mr. Gulzari Lal on behalf of the respondent has not adopted the reasoning of the learned District Judge and he practically concedes that Section 197 would riot apply to the present case. He, however, contends that as the defendant plea was that he was the tenant of the whole of the proprietary body Section 202 could not apply. This contention does not commend itself to us. The defendant, in asserting that he was the tenant of the whole of the proprietary body including the plaintiff, asserts that he is the tenant of the plaintiff also. If he is a tenant of the plaintiff, and as his allegation is that be is such a tenant, it was the duty of the Court of first instance to apply the procedure prescribed in Section 202 and refer the defendant to the Revenue Court. The fast that the defendant asserted that more persons than the plaintiff were his landlords did not, in our opinion, make any difference as to the application of Section 202. WE think that this is a case in which the procedure laid down in Section 202 ought to have been adopted. WE accordingly set aside the decrees of the Courts below and remand the ease to the Court of first instance with directions to re admit the nit on its file and to adopt the procedure prescribed in Section 202. Costs here and hitherto will be costs in the cause. The costs in this Court will include fees on the higher stale.