MT HET KUAR Vs. TEJPAL SINGH

JUDGEMENT

(1.) This is a reference by the learned Munsif of Tilhar under Section 267, Clause 2, Agra Tenancy Act. Mt. Het Kuar justituted a suit in the Revenue Co under Section 122, Agra Tenancy Act, to obtain a declaration that defendants 1 to 3 were not the tenants of the holding in suit and were not entitled to collect rent from the actual cultivators thereof treating them as sub-tenants. The learned Assistant Collector, who heard the case, came to the conclusion that a suit of this nature was not within the cognizance of the Revenue Court. Accordingly he returned the plaint to the plaintiff for presentation to the Court having jurisdiction to try it. The plaintiff then filed her plaint, after some amendments, in the Court of the Munsif of Tilhar who was of opinion that the suit was within the cognizance of the Revenue Court and so he has made this reference.

(2.) In order to decide the point in controversy it is necessary to examine the pleadings of the parties. There is no dispute between the parties on the following points. One Mt. Hansa Kuar was the owner of Khata Khewat No. 1 comprising 19 his was in Patti Hansa Kuar. On 29 November 1911, she mortgaged this share including her sir plots to the plaintiff. In 1916, she made a gift of it to the defendants who are her relations. The plaintiffs instituted a suit on foot of her mortgage and obtained a decree for sale of the mortgaged property and at a Court sale herself purchased the same including the sir plots. The real dispute between the parties is about the exproprietary rights in the sir plots. The plaintiff contends that in 1905, Mt, Hansa Kuar had created usufruetuary mortgage in favour of a third person, and as she did not then claim the exproprietary rights within a period of six months under the provisions of the old Agra Tenancy Act, she lost them for ever. The defendants, on the other hand, assert that Mt. Hansa Kuar never lost her exproprietary rights in the sir plots now in suit and that after the sale of the zamindari of Hansa Kuar they, as her donees acquired ex-proprietary rights in them. The defendants further allege that in 1910 there was litigation between Mt. Hansa Kuar and the usufructuary mortgagee of 1905 in which the former obtained a decree under which her rights in the sir plots were protected. Thus it will be seen that the point in issue between the parties is whether after the sale in favour of the plaintiff, the defendants, donees of Mt. Hansa Kuar, acquired exproprietary rights in the sir plots or not.

(3.) Section 122, Agra Tenancy Act, provides that in case of doubt or dispute as to who is the tenant of the holding the land-holder may sue the persons as to whose right such doubt exists or between whom such dispute has arisen, to have it declared which of the persons is the tenant. We are of opinion that the suit is cognizable by the Revenue Court. The position after the sale in favour of the plaintiff was this: The zamindari including the sir plots had been sold to her at a Court-auction. The plaintiff found certain persons in possession as tenants of the plots in suit. According to the plaintiff, they are the tenants. The defendants however claim to be a sort of middlemen being exproprietary tenants. They desire to treat the actual cultivators as their sub-tenants. Leaving the nature of the tenancy aside, the question is whether the defendants are the tenants or the actual cultivators are tenants (not merely sub-tenants). As this doubt exists, she is entitled to maintain a suit for a declaration under the provisions of Section 122, Agra Tenancy Act. Section 230, Agra Tenancy Act, provides: Subject to the provisions of Section 271, all suits and applications of the nature specified in Schedule 4 shall be heard and determined by the Revenue Courts, and no courts other than a Revenue Court shall, except by way of appeal and revision as provided in this Act, take cognizance of any such suit or application, or of any suit or application based on a cause of action in respect of which adequate relief could be obtained by means of any such suit or application. Explanation: If the cause of action is one in respect of "which adequate relief might he granted by the Revenue Court, it is immaterial that the relief asked from the civil courts may not be identical with that which the Revenue Court could have granted.