BAIJ NATH PATHAK Vs. GAYA DIN SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession under Section 99, Agra Tenancy Act. The zamindar has also been impleaded. It appears that a suit for redemption was brought by the defendant against the plaintiff which was first dismissed by the Munsif on the ground that it was barred by res judicata. His decree was set aside on appeal and the case was remanded and the order of remand was affirmed by the High Court. On remand the Munsif decreed the claim ex parte for redemption against the plaintiff.

(2.) In 1928, the pre sent plaintiff filed a suit for a declaration of his status as an occupancy tenant against the present defendant under Secs.121 and 123, Agra Tenancy Act, and he also impleaded the zamindar as a party. The suit was decreed by the Assistant Collector and the decree was affirmed by the Commissioner on 4 October 1928. In the Revenue Court a copy of the judgment of the Munsif in the redemption suit had been filed, but the Commissioner considered that it did not debar the plaintiff from getting relief inasmuch as the Civil Court had merely allowed redemption of the mortgage without deciding the question of tenancy. He accordingly upheld the order of the Assistant Collector declaring that the plaintiff was the occupany tenant of the land. That order became final and bound the zamindar as well as the defendant.

(3.) Having lost his case in the Commissioner's Court the defendant executed the Civil Court decree and obtained delivery of possession through the Civil Court on 21 May 1929. Upon this the plaintiff promptly instituted the present suit on 15th June 1929. The Assistant Collector-decreed the claim holding that he was bound by the judgment of the Commissioner and that the Civil Court judgment was not any obstacle in the way. On appeal the District Judge has come to a contrary conclusion and dismissed the claim holding that the tenancy was extinguished under Section 35(1)(b), Tenancy Act, on the delivery of possession through the Civil Court. He however overruled the objection of the plaintiff that the District Judge had no jurisdiction to entertain an appeal inasmuch as the appeal lay to the Commissioner.