PRYAG AHIR Vs. MAHABIR AHIR

JUDGEMENT

(1.) The facts of this case are as follows: The land in suit was an occupancy holding that belonged to one Sheoambar. On his death it descended to his widow, Musammat Amrita. Her name was recorded as also that of Dhusai, her husband's brother, and Mahabir, her husband's sister's son, along with hers and this arrangement was agreed to and accepted by the Zemindar, Musammat Amrita died some two years before the suit and it appears that the names of Mahabir and Dhusai remained recorded. This suit was brought by Dhusai and two persons Pryag and Tahlu who are the sons of Sheonarain, who was the brother of Ram Charan, the father of Sheoambar. They sued for a decoration that Mahabir had no concern in the occupancy holding which they asserted belonged to them and they asked for a perpetual injunction against him. In the alternative they prayed for recovery of possession if it be proved that the plaintiffs were out of possession.

(2.) The main defence to the suit by Mahabir was that ha had been adopted by Sheoambir. That, however, has been found by both the Courts below against him, The Trial Court decreed the suit but in appeal the suit was dismissed on the ground that it was barred by limitation apparently under the provisions of Section 79 of the Agra Tenancy Act!

(3.) The plaintiffs have appealed. It is admitted in appeal that the plaintiffs Nos. 1 and 2 (Pryag and Tahlu) have no sort of right at all but the appeal is pressed on behalf of Dhusai and it is argued that Section 79 of the Agra Tenancy Act has no application to the facts of the case inasmuch as in this case, it is suggested, there was no wrongful dispossession of the tenant and, secondly, the suit was not against the land holder at all. There is no doubt that so far as it goes this argument: is perfectly correct but it is not open to a party to evade the provisions of the Rent Act by bringing a suit framed so as to lie in the Civil Court, the real object of which is to obtain a remedy which was obtainable in the Revenue Court, The facts of this case are not altogether unlike the facts in Ram Lal V/s. Chunni Lal 27 A. 372 : 2 A.L.J. 69 : A.W.N. (1904) 281. The main difference is that in that case the dispossession was from the whole holding. in this case the utmost that can be said was thats dispossession was partial. That, however, is not sufficient to distinguish this case in principle from that. in our opinion the decision of the Court below is correct and we accordingly dismiss this appeal with costs.