CHHEDA Vs. ACHHU SINGH

JUDGEMENT

(1.) ONLY one point arises for decision in this appeal. The appellant was a tenant in the village which admittedly has not been partitioned. It is alleged that some sort of private arrangement had been come to between the co-sharers under which the plots occupied by the appellant had fallen to the lot of Achhu Singh, the defendant respondent. The appellant failed to pay his rent and Achhu Singh dispossessed him. The appellant filed a suit against Achhu Singh and certain others for possession and mesne profits in the civil court. The learned Munsif decreed his suit, holding that he had jurisdiction and that the suit was not barred by Section 79 of the Tenancy Act. The lower appellate court has come to the opposite conclusion on the subject of jurisdiction and has taken the view that the respondent Achhu Singh being a co-sharer in the patti is a landlord of the present appellant within the meaning of Section 4 of the Tenancy Act. It has accordingly held that the civil court has no jurisdiction, and has ordered the plaint to be returned for presentation to the proper court.

(2.) IN appeal it is pointed out that Achhu Singh is only one of a number of co- parceners, and as such cannot be regarded as the landlord of the appellant. To enable a suit to be brought under Section 79 of the Tenancy Act, the ejectment must have been made by the landlord, that is, in such a case as this, the whole of the co-parcenary body. The appellant's counsel relies particularly on a recent ruling of a Judge of this Court, Rani V/s. Edal Singh (1923) 22 A.L.J. 113, which has been followed still more recently by another Judge in S.A. No. 1559 of 1922. IN both these decisions the principle was adopted of the ruling in Debi Prasad v. Bhagwan Din (1912) I.L.R. 35 All. 27, that a tenant in an undivided mahal is the tenant of the whole co-parcenary body, and that a suit under Section 79 cannot be brought against one of those co-parceners only. IN our opinion this is the correct view. We accordingly allow this appeal and direct the learned Subordinate Judge to restore the case to his own file and dispose of it on the merits. The appellant will get his costs of this appeal in any event. Other costs will abide the event.