SUDAMA RAI Vs. BISHESHAR PRASAD

JUDGEMENT

(1.) This is a defendants second appeal arising out, of a suit for ejectment. The plaintiffs sued the defendants for ejectment under the provisions of Section 58, old Agra Tenancy Act, 1901. The case set up by the plaintiffs was that the two plots in suit were their sir and that the defendants had been holding them as their sub- tenants. On the refusal of the defendants to vacate the plots, the plaintiffs instituted their suit.

(2.) The defendants pleaded that the relationship of landlord and tenant did not exist and that they themselves were the proprietors of the two plots. The learned Assistant Collector found that the plaintiffs were the owners of the plots in suit and that the defendants were holding them as trespassers. In his opinion, a trespasser could not be ejected under the provisions of Section 58, of the old Tenancy Act, 1901. He therefore dismissed the suit. The plaintiffs preferred an appeal against the decision of the Assistant Collector to the Court of the Commissioner. During the pendency of the appeal in his Court, Bindra Rae, one of the respondent s, died. More than 90 days after his death, an application was made by the plaintiffs to the Commissioner praying that as Bindra Rae had died, the names of his legal representatives should be brought on record. No objection was taken by the respondents that as the application had been made more than 90. days after the death of Bindra Rae it could not be entertained. Eventually, the Commissioner held that he had no jurisdiction to hear the appeal as a question of proprietary title was involved in the case. He returned the appeal to the plaintiffs for presentation to the Court having jurisdiction to entertain it. The plaintiff-appellants presented their appeal to the District Judge. Along with the appeal an application was made praying that the time spent in carrying on. proceedings in the Court of the Commissioner under a bona fide belief that the appeal lay in that Court should be excluded in computing the period of limitation. It appears that the Office Report made on this appeal was that it had been presented within time.

(3.) It would appear that when the appeal came up for hearing before the learned District Judge, the plea that the appeal had been filed in Court after the expiry of the period of limitation was not taken up specifically. On the other hand a preliminary objection to the hearing of the appeal was taken by the respondents that the appeal had abated because No. application had been, made to the Commissioner to bring on. record the names of the legal representatives of Bindra Rae within a period of 90 days of his death. The learned District Judge repelled this objection. He held that as the respondents had not taken his objection in the Court of the Commissioner, when he ordered on the application of the plaintiffs that the names of Bindra Rae's legal representatives should be brought on record, they could not be permitted to raise this plea in the appeal before him. The learned District Judge held that the plaintiffs were entitled to a decree for ejectment against the defendants. The appeal was decreed. The defendants have come up to this Court in second appeal. The plea about the abatment of appeal raised on behalf of the defendant-appellants has no force. The Commissioner in whose Court the appeal of the plaintiffs had been filed held that he had no jurisdiction to entertain it. So there can be no question of abatement. The question of abatement can only arise when the appeal is pending in a Court which has jurisdiction to entertain it.