YAKUB ALI Vs. TAJAMMUL HUSAIN KHAN

JUDGEMENT

(1.) This is a plaintiff's application in revision against the order of the learned Small Cause Court Judge of Farrukhabad directing the plaint to be returned to the plaintiff for presentation in the revenue Court. The suit out of which this application arises was brought by the plaintiff for recovery of his share of the price of the fruits of two groves one being situate in patti 33 of village Amethi Jadid and the other in patti 10 of village Nibalpur. The fruits of the two groves were admittedly sold by the defendants and the price of the same was realized by them. The suit was contested on a variety of grounds and the learned Judge of the Court of Small Causes recorded findings on many of those points, but as the order sought to be revised before me was based on his finding that he had no jurisdiction to entertain the suit, I need not notice the other points raised in defence or the findings of the learned Judge on those points. In order to appreciate the question of jurisdiction raised by the defendants it is necessary to state certain facts.

(2.) The pattis in which the groves in dispute are situate originally belonged to a man named AH Mohammad Khan. He died leaving two sons named Ali Ahmad and Abdul Majid and three daughters named Benarsi, Jafri and Neyaz Begum and a widow named Verasat Jahan. The defendants to the present suit are the sons of Benarsi Begum, one of the daughters of AH Mohammad Khan, and by right of inheritance from her and by certain transfers made by the other co-sharers of Benarsi Begum they admittedly have acquired a 7 annas share in the estate of Ali Mohammad Khan. The plaintiff, on the other hand, has acquired by means of certain transfers a 7 annas 6 pies share in the pattis in dispute. Out of the 7 annas 6 pies share the plaintiff had purchased a 2 annas 6 pies share from a lady named Ewaz Jahan, the widow of Abdul Majid, the son of Ali Mohammad Khan. It appears that the plots on which the groves in question are situate were recorded in the revenue papers as sir malikan. The defendants, being apprehensive of the fact that the word "malikan" my be deemed to include the plaintiff as well, took proceedings in the revenue Court for correction of the said entry and their application was allowed and it was ordered that the defendants, who were the heirs of Ali Mohammad Khan, were the sole sir holders and that the other heirs of Ali Mohammad Khan, who had parted with their shares could at best acquire exproprietary rights, and that the present plaintiff, who was a mere transferee, could not acquire and did not hold sir rights in the plots in question. It further appears that Ewaz Jahan Begum, after selling her share to the plaintiff was declared an exproprietary tenant with respect to her share in the plots in which she had sir rights and rent was assessed on her exproprietary tenancy by the revenue Court.

(3.) The defendants contention in the Court below was that as they were the sole sir holders of the plots on which the groves were situate and, as such, in exclusive possession of the same, and further that, as the plaintiff was a mere cosharer in the pattis in which the said groves lie, the only remedy of the plaintiff was to sue the defendants in the revenue Court for his share of the profits of the pattis in question, and that the suit was not cognizable by the civil Court. They also contended that the plaintiff having got rent fixed on the exproprietary holding of Mt. Ewaz Jahan was only entitled to recover from he the rent assessed and was not entitled to that portion of the price of the fruits of the groves that was represented by the share of Mt. Ewaz Jahan in the same. The learned Small Cause Court Judge after an elaborate survey of the various litigations between the parties both in the civil and the revenue Courts was of opinion that the latest decision of the revenue Court being to the effect that the defendants alone are entitled to the sir rights, the revenue Court alone was competent to give relief to the plaintiff in a suit for profits filed under Secs.226 or 227, Agra Tenancy Act. "With this conclusion of the Court below I am unable to agree and in my judgment the suit was cognizable by the Court below. My reasons for arriving at this conclusion are as follows: