SURAJ MAL Vs. HIRA KUNWAR

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiff sought a declaration that he was entitled to remain in possession of certain property under an alleged zar-i- peshgi lease, dated the 9th of September, 1904. It appears that the document in question was executed by one Lala Behari Lal, the father of the plaintiff, in favour of his son. Musammat Hira Kunwar, the defendant, was one of the co-sharers. Partition proceedings were brought in the Revenue Court and a portion of the property alleged to have been leased fell to the lot of Musammat Hira Kunwar. Thereupon she instituted a suit in the Revenue Court for possession of the plots that had so fallen to her lob and for ejectment of the plaintiff. The plaintiff set up the document of the 9th of September, 1904. The Revenue Court thinking that it was a case to which Section 199 of the Agra Tenancy Act applied, directed Suraj Mal to institute a suit in the Civil Court within three months to establish his rights under the lease. Suraj Mal did not institute a suit within the three months prescribed. Both courts have dismissed the suit on the ground of limitation, holding that the suit ought to have been instituted within the three months mentioned in the order of the Revenue Court. Hence the present appeal.

(2.) IT seems to us open to some doubt whether Musammat Hira Kunwar was entitled to institute her suit in the Revenue Court for ejectment. Her case appears to be that the lease of the 9th of September, 1904, was a fraudulent lease made by the lambardar in favour of his own son. If this be her case, and if it be found to be correct, then Suraj Mal would be a trespasser. IT seems to us also that the decision of the courts below was not correct. IT is quite clear that no question of "proprietary" title was raised in the Revenue Court. The plaintiff in that court sued for possession of certain plots and Suraj Mal set up the plea that she was not entitled to possession, because a lease had been made in his favour by the lambardar. If the suit was properly instituted in the Revenue Court, then the Revenue Court might have decided the question of the validity or the invalidity of the lease itself. But it seems to us that, a cloud having been cast on Suraj Mal s title under his lease, he was entitled to institute the present suit notwithstanding that the period prescribed in the order of the Revenue Court had expired. We particularly wish to state that we are not expressing any opinion on the question of the validity or invalidity of the lease. This is a matter which must be tried. We accordingly allow the appeal, set aside the decrees of both the courts below, and remand the case to the court of first instance, through the lower appellate court, with directions to re-admit the case under its original number in the file and proceed to hear and determine the same according to law. We direct that the court below take up the case as soon as possible. Costs here and heretofore will be costs in the cause.