LALA BHAGWAN DAS Vs. MOHABBAT SHAH

JUDGEMENT

(1.) The plaintiff-appellant instituted a suit under Secs.150 and 154 of the Tenancy Act against the defendants for the resumption of what purported to be rent free land in his mahal on the allegation that the land in question was granted for the performance of a specific service which he no longer required.

(2.) The defendants asserted that the giant had been made to them unconditionally and that it was thus not resumable under Section 154, and further that it had been held rent-free for 50 years by two successors of the original grantee, and that thus they held proprietary rights in the same. The Assistant Collector decided that the grant was unconditional and as such, not resumable, but that it had not been held rent-free for 50 years by two successors of the original grantee. He, therefore, assessed rent thereon under Section 157. The judgment is dated the 15 April 1920. On the 16 June 1920 the plaintiff appealed to the Commissioner on the ground that the land had been granted for the performance of a specific service which he no longer required and demanded the ejectment of the defendants. He further appealed that, in any circumstance, the status of the defendants had been incorrectly determined and that the lent fixed was pot sufficient. This appeal was within time if it lay to the Commissioner. It was not within time if it lay to the Court of the District Judge. It was not an appeal against a decree in a suit included in groups A and B, or in a suit under Secs.159, 160, 161, 162, 164 and 165 and it raised no question of proprietary title. It would, therefore, appear that the appeal lay to the Commissioner. When the appeal was filed there was no question of proprietary title in issue in the appeal although such a question had been in issue in the Court of first instance.

(3.) On the 31 of August 1920 the defendants having received notice of the appeal, filed, as they were entitled to do, a cross objection under Order XLI, Rule 22 in which they requested the Court to dismiss the suit altogether because, on their allegations, it was established that they lad proprietary title in the plot inasmuch as the grant was for more than 50 years and held by two successors to the original grantee. The filing of this cross-objection introduced a question of proprietary title as an issue in the decision of the appeal. The Commissioner then took the curse (which was the only possible course) of returning the appeal and the cross-objection to the parties with directions to file them before the District Judge. As he was precluded from deciding the question of proprietary title and as the cross-objection had now become merged in the appeal and he had to decide every point raised in both, he took a correct view of tie law. He does not refer to the decision in Raja Partab Bahadur Singh V/s. Abdus Salam 31 Ind. Cas. 357 which is a decision of the Board of Revenue. That decision undoubtedly supported his view and lays down the only feasible procedure as to what Is to be done in such circumstances.