IQBAL AHMAD Vs. SURAJ BALI

JUDGEMENT

(1.) This is a second appeal in a suit for ejectment of a non-occupancy tenant under Section 58 of the Agra Tenancy Act. The appeal has apparently been preferred to the civil Court because a question of proprietary right is involved. The real question in dispute is whether the land in suit is situated in Dewara Jadid in the Azamgarh District of which the plaintiffs-appellants are zamindars or in the village of Dewara Sabitpur in the Fyzabad District of which the defendant Babu Narendra Bahadur Singh is in charge. The other defendants are the persons actually cultivating the land and claiming to cultivate under Babu Narendra Bahadur. The dispute between the principal parties, the plaintiffs and Babu Narendra Bahadur Singh, was the subject of proceedings in the criminal Court under Section 145, Criminal Procedure Code. In these proceedings Babu Narendra Bahadur Singh was found to be in possession and an order was passed in his favour under Section 145(6). The plaintiffs thereupon filed the present suit for his ejectment and that of the persons cultivating under him. No reference was made in the plaint to Section 34 of the Tenancy Act, but there was also no reference to any agreement of tenancy between the parties and it was admitted that no rent had been fixed. Under the circumstances it must have been clear to all parties that the suit was filed with reference to Section 34.

(2.) The Assistant Collector dismissed the suit on the ground that it was barred by Section 145, Criminal Procedure Code. The learned District Judge appears to agree with this conclusion and ho also finds that there is nothing to show that the defendants are tenants of the appellants. On both these grounds he has dismissed the appeal.

(3.) It is clear at the outset that Section 145, Criminal Procedure Code, is no bar to the present suit and no attempt has been made to support the judgment of the Court below on this point. Section 145 (5) lays down that the party in whose favour an order is passed shall be entitled to possession of the land "until evicted therefrom in due course of law." The expression "eviction in due course of law" is just as much applicable to ejectment in proceedings under Chapter 5 of the Tenancy Act as it is to ejectment under the decree of a Civil Court.