MAHMUD HUSAIN KHAN Vs. RADHA KISHUN

JUDGEMENT

(1.) This is an appeal by the defendant and arises out of a suit which was instituted on 28 December 1939, by Radha Kishun for arrears of rent. It is common ground that on that date, namely 23 December 1939, the Agra Tenancy Act of 1926, was in force. The suit was filed in the Court of an Assistant Collector of. the second class and therein the defendant set up a proprietary title in himself on the basis of an award decree of 1884 which was held to be binding between the parties on 11 November 1937 in Suit No. 13 of 1936. A request was made that an issue regarding the question of proprietary title be sent to the civil Court if the learned Assistant Collector was not satisfied with the decision of the civil Court in Suit No. 13 of 1936. The plaintiff filed a copy of the judgment of the Munsif dated 27 October 1934 and contended that the matter had been decided in favour of the plaintiff in that litigation. The learned Assistant Collector on 11th November 1937, came to the conclusion that the question of proprietary title between the parties had been decided in 1937 and that the judgment operated as res judicata between the parties. In that case according to the Assistant Collector it was held that the defendant was the proprietor of the plot. The suit was, therefore, dismissed on 30 November 1940. By this time the U.P. Tenancy Act of 1939, had come into force.

(2.) There was an appeal to the Collector and he on 20 January 1941 came to the conclusion that the plaintiff's suit ought to be decreed inasmuch as the Munsif's judgment on 27 October 1984, referred to above operated as res judicata between the parties and not the later decision of 11 November 1987. The defendant went up in appeal to the District Judge on the ground that the question of proprietary title was raised between the parties and an issue ought to have been remitted to the civil Court if the revenue Court was in doubt as to which of the two decisions of the civil Court operated as res judicata. The appeal obviously was filed under the provisions of Section 243, Agra Tenancy Act of 1926.

(3.) A preliminary objection was taken on behalf of the plaintiff-respondent and it was argued that no appeal lay. It was said that under Section 266, U.P. Tenancy Act of 1939 an appeal lay to the District Judge against the appellate decision of the Collector only when a question of jurisdiction was decided by the Courts below and was in issue in appeal. It is conceded that no question of jurisdiction was involved in this case. The submission on behalf of the defendant in the Court of the District Judge was that the appeal would be governed by the Agra Tenancy Act of 1926 and if a reference is made to Section 243 of that Act, then it will be clear that an appeal lay not only on a question of jurisdiction but also on a question of proprietary title and it is common ground that in this particular case a question of proprietary title was in issue in all the Courts.