KAPILDEO AHIR Vs. SARAT KURMI

JUDGEMENT

(1.) The order of the Court be-low cannot be sustained. The appeal is by a plaintiff whose suit for possession over two occupancy plots had been decreed by the trial Court. No objection as to jurisdiction had been raised by the defendant in the trial Court, no allegations had been made by the defendant which could be relevant to such an objection, there was, for obvious reasons, no issue on the point and no facts were found which could have any bearing on such a plea. The defendant appealed to the lower appellate Court and there, for the first time, raised the plea that the suit was not cognizable by the civil Court. The lower appellate Court has accepted that plea and has ordered the plaint to be returned to the plaintiff for presentation to the proper Court.

(2.) The essence of the pleadings was this. The plaintiff alleged that he was the sole occupancy tenant of the plots in question, that his mother -- defendant 2 in the suit -- had, during his minority, executed a deed of usufructuary mortgage in respect of the plots in favour of defendant 1, that the mortgage was not binding on him, the plaintiff, that the mortgage was also without consideration and that defendant 1 was a mere trespasser. The relief prayed for, was possession of the plots. Defendant 1 pleaded that the plaintiff's mother was entitled to execute, and was also justified in executing the usufructuary mortgage deed in question, that it was for consideration and legal necessity and that it was binding on the plaintiff. He never claimed to be a tenant of any sort or kind, nor did he make any allegation by virtue of which he could be said to be claiming through the landholder or a person claiming as landholder. Learned Counsel for the respondent has entirely failed to show how, in these circumstances, the decision of the lower appellate Court that Section 99, Agra Tenancy Act of 1926, was applicable to the case, can be accepted. Similarly, Section 121 of the said Act, is inapplicable. The suit is neither against a landholder nor is it against any person claiming to hold through the landholder. It has not been shown to me on behalf of the respondent that the suit came within Schedule 4, Agra Tenancy Act of 1926. Section 230 of that Act was thus not applicable. The rulings relied upon by the lower appellate Court are clearly distinguishable on the facts. In the course of the arguments, reference was made to the Full Bench cases reported in Sahdeo V/s. Budhai and Mt. Ananti v.Chhannu . So far as the first case is concerned, it is sufficient to say that I have already shown that Secs.99 and 121, Agra Tenancy Act of 1926, did not, on the pleadings, apply to the case before me. The second case, at any rate, so far as the decision of the majority of the learned Judges (viz., Sulai-man, Mukerji and Kendall JJ.) goes, does not support the respondent's contention. So far as some of the views expressed by the other two learned Judges (Boys and King JJ.) are concerned, I have already pointed out that in the case before me, there is no allegation even in the written statement of the defen-dant which can attract the provisions of Secs.99 and 121, Agra Tenancy Act of 1926.

(3.) The basis of the decision of the lower appellate Court is that defendant 1 has been paying rent to the landholder. It has not been shown to me that there is any foundation for this view of the learned civil Judge. As I have already shown above, there was nothing in the pleadings to justify any such conclusion. Learned Counsel for the parties have read to me from the record a number of receipts issued by the landholder for the rents paid in respect of the plots in suit since the execution of the mortgage deed mentioned in the pleadings. They are all in favour of Kapildeo Ahir -- the plaintiff-appellant-- as the tenant of the holding and the name of defendant 1, Saral Kurmi, is mentioned as the person through whom the money was actually received. In some of the receipts Kapildeo Ahir is described as mortgagor and Saral Kurmi as mortgagee. Thus, whatever payments were made by Saral Kurmi were made in behalf of Kapildeo Ahir, in other words, as Kapildeo's agent, and not on his own behalf. If any authority were needed, reference may be made to the case in Saudagar Singh V/s. Ganga Singh ( 21) 8 A. I. R. 1921 All. 110.