KALI DIN Vs. RAMPAT

JUDGEMENT

(1.) THESE are two connected appeals arising out of the same judgment. The plaintiff is a co-sharer in the village. The first defendant was the Lambardar. The first defendant granted a perpetual lease of 20 bighas of laud to the second defendant Kali Din, who is the appellant before us. The plaintiff brought a suit in the Civil Court for the cancellation of this lease on the ground that it was beyond the powers of the Lambardar to execute. He also sued for the ejectment of the defendant from 5 bighas of laud which he, the plaintiff, claimed as his khudkasht. The defendant pleaded that the lease was a good and valid lease. His contention was that not only was it within the power of the Lambardar but that it was executed with the consent of all the co-sharers, This was in substance a plea that the defendant was the tenant of the whole proprietary body including the plaintiff. Under these circumstances, the Trial Court could have, under Section 202 of the Tenancy Act, directed the defendant to file a suit in the Revenue Court within three months to establish the tenancy which he set up. It is true that no plea to this effect was taken in the written statement, the defendant contending instead that the whole suit should have been filed in the Revenue Court. This contenton was found against him and the suit was decreed except in regard, to the 5 bighas of land of which the plaintiff claimed actual possession. Both parties appealed and the lower Appellate Court dismissed the defendant's appeal and allowed that of the plaintiff and decreed the suit in full. From this decree the defendant, Kali Din, appeals. The sole ground pressed is that the Courts below should have acted under section, 202 of the Tenancy Act. There are two rulings of this Court both of which are in his favour, Raghunath V/s. Ganesh 54 Ind. Cas. 381 : 18 A.L.J. 214 : 2 U.P.L.R. (A) 79 : 42 A. 222 and Bhauni V/s. Ram Dayal 64 Ind. Cas. 426 : 19 A.L.J. 850. We are reluctant to disturb the decree of the Court below for, apart from urging that his pica that the lease was executed with the consent of all the co- sharers, which the First Court decided against him, has not been decided by the Court below, the appellant has made no attempt to show us that the decision as to the validity of the lease was wrong on the merits. On the other hand, we find it impossible to distinguish the case from the two decisions already referred to. We, therefore, adopt the course which was adopted in those cases and, setting aside the decisions of both the Courts below, remand the case through the lower Appellate Court to the Court of first instance with directions to restore it to the file and to dispose of it in accordance with the procedure prescribed in Section 202 of the tenancy Act. Costs here-and hitherto will abide the result.