RANI DHANDEI KUAR Vs. CHHOTU LAL

JUDGEMENT

(1.) THIS was a suit in which the plaintiff claimed possession of immoveable property of the alleged value of 1 1/2 lakhs of rupees and for an account. The property consists of 26 villages, a market, groves and houses situated in Mariahu in the District of Jaunpur. It was alleged by the plaintiff that the defendant had been appointed to look after the management of this estate by one of the plaintiff's managers, but that he has been wrongfully withholding it from the plaintiff. The defendant's main contention was that he held the property under an oral perpetual lease granted in the year 1834 to his father, Gauri Prasad, At the hearing of the suit the defendant filed an application asking the Court to refer the case to the Revenue Court under the provisions of Section 202 of the Agra Tenancy Act, inasmuch as he alleged himself to be the tenant of the property. THIS application was acceded to by the then Subordinate Judge, and he made an order directing the defendant to institute a suit in the Revenue Court for establishment of his right. THIS was on the 10 of February 1916. The suit, we may mention, was instituted in 1915 and since then by reason of various proceedings taken in the Revenue Court, in the Court of the Commissioner, in the Board of Revenue, and subsequently in the Civil Court, the case has remained pending for this long period and was not decided by the learned Subordinate Judge until the 31 of October 1918. The main question in the appeal before us is whether the order of the 10th of February 1916, directing the defendant, under Section 202 of the Agra Tenancy Act, to institute a suit in the Revenue Court, was a right and proper order. That section provides that where a suit relates to an agricultural holding and the defendant pleads that he is a tenant of the holding, the Civil Court in which the suit is instituted, should refer the defendant to the Revenue Court to have his title as tenant declared. The present suit, as we have said above, relates to 26 villages, a market, groves and several houses, and it does not purport to relate to an agricultural holding. No doubt the defendant, who alleges himself to be a thekadar, would be a tenant within the meaning of the Agra Tenancy Act, if he can establish his allegation as to his having, a perpetual lease, but what we have to consider is whether the property in suit is an agricultural holding within the meaning of Section 202. Every Zemindari property, it is true, includes agricultural land, but Zemindari property may include house property and other property which does not strictly come within the meaning of agricultural land. A claim for Zemindari property is not, in our opinion, a suit relating to an agricultural holding. A holding is defined in the Tenancy Act to be a parcel of land held under one, engagment; and it clearly indicates that it is land which is held by an ordinary agriculturist under one engagment for purposes of agriculture. That cannot be laid of a person who claims to be thekadar of the Zemindari, and does not allege that he held any particular parcel of land under a separate engagement for purposes of agriculture. The defendant in the present suit states that he holds the property in suit under a theka, that is, a lease of the Zemindari. If he can establish that allegation, he may be a tenant of the plaintiff, but he would not be a tenant of agricultural land within the meaning of Section 202 of the Act. In this view the learned Subordinate Judge who, on the 10 of February 1916, referred the defendant to the Revenue Court, committed an error as the case should never have been referred to that Court. His successor, who finally decided this suit, was equally in error in deciding it in accordance with what he considered to be the decision of the Revenue Court. The result is that we allow the appeal, set aside the decree of the Court below and remand the case to that Court under Order XLI, Rule 23, of the Civil P. C. with directions to re-admit it under its original number in the register and to try and dispose of it on the merits. Costs here and hitherto, including in this Court fees on the higher scale, will be costs in the cause.

(2.) WE request the learned Subordinate Judge before whom the case will go, to expedite the hearing of this case inasmuch as it has been pending for a period of nearly seven years. WE may also mention that if the case ever comes to this Court on appeal, the hearing of the appeal should, in our opinion, be expedited. The record should be sent down to the Court below without any delay.