MUKUND RAM Vs. AJODHIA PRASAD

JUDGEMENT

(1.) This is a second appeal by the plaintiff's in a suit for ejectment under Section 180, New Tenancy Act (17 of 1939). The dispute in this case relates to a small plot numbered 3647/1 having an area of 1 bigha 3 biswas. This plot is contiguous to another plot numbered 3647/2 which has an area of 2 bighas and 9 biswas. These two plots are sub-divisions of a large plot which at the old settlement was numbered 4019. The two plots are situated in the same mohal but it appears that the mohal was partitioned 15 years or so before the institution of the suit and at that partition the plot in dispute, i. e., 3647/1, was allotted to the plaintiffs, whereas the other plot 3647/2 fell within the share of the defendant. The plaintiffs and the defendant, who is the respondent in this Court, are admittedly cosharers in the mohal. The plaintiffs case was that they had planted a grove in the plot in dispute some ten years before the institution of the suit but after some years the defendant had taken wrongful possession of the plot and on this simple allegation they sued to eject him under Section 180, New Tenancy Act, 17 of 1939.

(2.) The defendant-respondent raised two main pleas in his written statement, firstly, that he was in adverse proprietary possession of the plot in dispute for more than twelve years and secondly, that he was a grove holder of the plot in dispute with the permission of the plaintiffs. It will be noticed at once that these two pleas are mutually destructive of each other. It may be mentioned here that the defendant-respondent also pleaded in his written statement that the suit was not cognizable by the revenue Court because it related to grove land. Even this plea does not appear to have any real foundation, but the fact remains that it was raised in the written statement and an issue was framed by the Court upon it. With regard to the first plea that the defendant-respondent was in adverse proprietary possession of the plot in dispute for more than-12 years the learned Assistant Collector who tried the suit framed an issue and under the provisions of Section 286, New Tenancy Act, submitted the record to the civil Court for the decision of that issue. The plea of proprietary right raised by the defendant respondent was obviously quite inconsistent with his other plea that he was a grove holder with the permission of the plaintiffs and was consequently clearly untenable and it may be safely presumed that it was intended solely to oust the jurisdiction of the revenue Court. If these points had been taken into consideration by the learned Assistant Collector, he might well have refused to frame an issue on the plea of proprietary right and to submit it for the decision of the civil Court because Expln. I to Sub-section (1) of Section 286 clearly provides: A plea of proprietary right which is clearly untenable and intended solely to oust the jurisdiction of the revenue Courts shall not be deemed to raise a question of proprietary right within the meaning of this section.

(3.) When the matter came up for hearing before the civil Court the defendant- respondent's counsel made a statementto the effect that it was not the defendant-respondent's case that he was in adverse proprietary possession of the land in dispute and that all that he claimed was that he was a grove-holder with the permission of the plaintiffs. Thereupon the civil Court had no option but to decide the issue framed on the question of proprietary right against the defendant-respondent and to return the record to the revenue Court. The learned Assistant Collector decreed the plaintiffs suit holding that the grove standing on the land in suit had been planted by the plaintiffs and that the defendant- respondent had taken wrongful possession of the grove only seven years before the institution of the suit. On the question of jurisdiction also the learned Assistant Collector held that the suit was clearly cognizable by the revenue Court. From that decree the defendant-respondent went up in appeal to the District Judge. It is important to note that in his memorandum of appeal he again raised the question of jurisdiction in the third ground of appeal which runs as follows: "That the lower Court had no jurisdiction to hear the suit". It may also be noted that at the end of the memorandum of appeal the defendant-respondent clearly stated that he was filing an appeal in the Court of the District Judge for two reasons: firstly because an issue had. been framed in the case on the question of proprietary right and had been submitted for decision to the civil Court and secondly, because a question of jurisdiction was involved. The appeal was heard by the learned Additional Civil Judge to whom it was transferred by the District Judge. The learned Additional Civil Judge allowed the appeal and dismissed the plaintiffs suit holding that the grove existing on the plot in dispute had been planted by the defendant- respondent more than-12 years before the institution of the suit with the permission of the plaintiffs-appellants. As that finding was enough for the disposal of the appeal and the dismissal of the plaintiffs suit, the learned Additional Civil Judge did not consider the question of jurisdiction raised in the memorandum of appeal. From this decree of the learned Additional Civil Judge the plaintiffs have come up in second appeal to this Court.