RAM DHARI UPADHIA Vs. BABULAL UPADHIA

JUDGEMENT

(1.) IN this Case it is found, (1) that the parties are rival Zemindar, (2) that with regard to No. 803/3, the plot in dispute, the plaintiff has always been in proprietary possession since Fasli 1287, (3) that in 1310 Fasli the defendants fraudulently entered the plaintiff's name as sub-tenant in the revenue records (whether with the collusion of the Patwari, as the Court below thinks, is immaterial), (4) that in 1916 the defendants obtained in the Revenue Court an ex parte decree for rent of the property for a certain period against the plaintiff as sub-tenant and that that decree has not been set aside, (5) that the present plaintiff did not come to know of that decree until his property was attached, that he had no opportunity of setting up his proprietary title, in that suit and that the decree was obtained by the defendants fraud and clever device against the well established right of the plaintiff, (6) and that this property about Fasli 1289 was entered in the defendants patti.

(2.) ON these finding, the plaintiff is clearly entitled to what he claim, namely, a declaration of title, unless there is some legal bar to the same. He does not claim possession because be has always been in possession. It appears that the defendants attacked him with another suit under Section 58 of the Tenancy Act for ejectment after the previous decree and then the plaintiff raised his defence of proprietary possession and was directed to bring this suit within three months in a Civil Court (see paragraph 3 of the plaint admitted by the written statement). Much reference is made in the judgments below and in the pleadings to Section 11, Civil Procedure Code. That section is clearly irrelevant. The Revenue Court was not competent to decide this case and the only bar that I can see is either a kind of estoppel or the bar raised by Secs.166 and 167 of the Tenancy Act. The authorities relied upon in this Court are Kishore Singh V/s. Bahadur Singh 48 Ind. Cas. 470 : 16 A.L.J. 933 : 41 A. 97 and Mollo V/s. Ramlal 58 Ind. Cas. 772 : 18 A.L.J. 1030 : 43 A. 191. In my opinion, these two cases have nothing to do with this case. The former case was decided under Section 157 of the Tenancy Act and the case of Mollo V/s. Ramlal 58 Ind. Cas. 772 : 18 A.L.J. 1030 : 43 A. 191 followed it. This suit being a claim for a declaration of title by an alleged owner, could not be brought under Section 167 and these decisions have, therefore, nothing to do with this case. It is said further that the suit is Statute barred. Art. 120 prescribes six years and the defendants have had an entry in their favour in 1883 (Fasli 1289) the cause of action is alleged to be the enforced payment by the plaintiff of the arrears of rent under the decree of 1916, Following the decision in the case of Allah Jilai V/s. Umrao Hussain 24 Ind. Cas. 535 : 36 A. 492 : 12 A.L.J. 810 with which I entirely agree, I think in any event a fresh cause of action arose when that decree of 1916 was obtained. The Statute of Limitation was not pleaded in the written statement nor raised until it same to this Court. Mr. Bajpai argued that the finding of fraud against the defendants was not justified and that there was really no evidence to support it. I feel doubtful whether this point, viz., as to there being no evidence, is open to the appellants. It was not raised in the memorandum of appeal and the respondent was not sailed upon to go through the record to see whether there was any direct evidence upon the point. But I do not think that I ought to dismiss that consideration from the appeal, because after all the question of whether the judgment was rightly obtained is involved in the plea of estoppel. The Civil Court is, in a case of this kind, not bound by any findings arrived at in the Revenue Court, nor is there any statement in the record of the Revenue Court conclusively in favour of either party. The Civil Court is entitled to take an independent view of its own, having regard to all the circumstances of the case and if necessary, I am prepared to hold, as a matter of law, that there was sufficient evidence on the record in this case to justify the Court drawing the inference which it has done, that the decree was improperly obtained, which would be a fatal answer to the defence in any event. I think even if it were properly obtained, it would not be binding on the Civil Court or operate as an estoppel against the plaintiff. The appeal must be dismissed with costs.