PARMESHWARI DAS Vs. ANGAN LAL

JUDGEMENT

(1.) This is a reference, dated 26 September 1941, by the Munsif of Pilibhit under Section 289, U.P. Tenancy Act (17 of 1939), by which he has referred the following issue for the determination of this Court: Whether in view of the change introduced by the Legislature in Secs.44, 271, 273 and 230 of Local Act 3 of 1926 which find place as Secs.180, 286, 288 and 242, respectively in Act 17 of 1939, the law laid down in the Full Bench ruling in Mohammad Muslim V/s. Maharania is still the law of the land?

(2.) This reference is made by the Munsif in relation to a suit which is pending in his Court for recovery of possession of four plots of land situated in mohal Lakhan of village Beharipur Bhaira in Pilibhit district. The plaintiffs, Parmeshwari Das and others, and the defendant, Angan Lal, at one time were the joint proprietors of the aforesaid mohal. At the instance of the defendant, an imperfect partition of the mohal was made by the revenue Court and two pattis were formed, namely Gulabi and Asmani, the former of which was allotted to the defendant and the latter to the plaintiffs. According to the terms of the partition, any khudkasht plots of a co- sharer of less than ten years standing was not to be regarded as the sir of that cosharer if the khudkasht plots were allotted to the patti of the other cosharer. The plots in dispute Nos. 438, 439, 569/3 and 572/1 were the khudkasht of the defendant but of less than ten years and they were allotted at the partition to the patti of the plaintiffs. The partition came in force from 1346 P., but notwithstanding the coming into force of the partition the defendant continued his khudkasht in the plots in dispute, and as a result the plaintiffs raised an action in the Court of the Munsif of Pilibhit for the ejectment of the defendant and for recovery of Rs. 50 as compensation for wrongful use and occupation of the plots. The plaintiffs alleged that the possession of the defendant was in contravention of the mode of partition settled between the parties and was wrongful and consequently the defendant was liable to ejectment and to pay compensation. A preliminary issue arose in the case whether the suit was cognizable by the civil Court. The Munsif expressed the view that under the previous Tenancy Act (3 of 1926), and in view of the authorities of this Court pronounced on that statute the suit would have been cognizable by the civil Court, but the Tenancy Act (17 of 1939) which is now in force and which had repealed the previous statute has been materially changed and in view of the change, it is doubtful whether the authorities of this Court on the previous statute can now be regarded as good law. Taking this view of the matter, he formulated the above question and has referred it to us under Section 289, U.P. Tenancy Act (17 of 1939).

(3.) As we read Clauses (1), (4) and (5) of Section 289, they do not seem to authorize a direct reference of an issue or question of law for the determination of this Court. That section only authorizes a civil or revenue Court when it is in doubt, whether it is competent to entertain any suit, to submit the record of the cases with a statement of the reasons for its doubt to the High Court and on such reference being made the High Court may order the Court either to proceed with the ease, or to return the plaint for presentation to such other Court as it may declare to be competent to try the same, and the order of the High Court shall be final and binding on all Courts subordinate to it or to the Board. Strictly speaking, the Munsif after stating the reasons for his doubt should have sought direction from this Court as to whether he should go on with the suit or return the plaint for presentation to some other Court, and he should not have formulated the question or issue for the answer to be made by this Court. We do not, therefore, propose to answer the question propounded by him, but in giving the direction about the disposal of the suit pending before him naturally we shall have to take into consideration the question of law raised by the Munsif and to express our views upon it.