HABIBULLAH KHAN Vs. BHABUTI

JUDGEMENT

(1.) This is a Letters Patent Appeal against the judgment of a learned Single Judge of this Court by which he dismissed the second appeal before him. The original plaintiff died pending the litigation and his legal representatives have been brought on the record. The plaintiff, Jadunath Misir, claimed a declaration in respect of two groves bearing Nos. 182 and 189, on the allegation that they were his, and in a partition between the zamindars to which he was not a party, the defendant got the groves enter, ed in his name in the village papers. The plaintiff asserted that he was in possession and was entitled to the declaration. As a matter of precaution he asked for delivery of possession if it was found that he was out of possession.

(2.) The defence was that the plot No. 189 was not a grove at all but was a highway in the village and the plaintiff had nothing to do with it; that plot No. 182 was no doubt a grove but it had been planted by some tenants who died heirless and that it had escheated to the zamindar so that the zamindar was the owner of it. The Courts below sustained the defence so far as plot No. 189 went, but they decreed the plaintiff's suit with respect to the grove plot No. 182 and granted a declaration holding that the plaintiff was in possession. The lower appellate Court held, the plaintiff's position was that of a grove-holder and he was entitled to the decree he had got in the first Court. On second appeal it was contested that having regard to the plaintiff's case and to the finding of the lower appellate Court, the suit was not cognizable by the civil Court. This plea of the defendant succeeded with the learned Single Judge of this Court, but the learned Counsel for the respondents urged before that learned Judge that the plaintiff's case was that he was the "owner" of the plot Nos. 182 and 189 and that, therefore, it was never the plaintiff's case that he was a mere grove-holder and, therefore, presumably, a non-occupancy tenant within the meaning of Section 197 of the Agra Tenancy Act of 1926. On this plea being taken, the learned Single Judge read the plaint and came to the conclusion that the plea was a correct plea and he thereupon dismissed the appeal holding that the suit was cognizable, by the civil Court.

(3.) Before us it has been contended by the-learned Counsel for the defendant that it was never the plaintiff's case that he was the "owner" of the plots Nos. 189 and 182. We have heard the learned Counsel for the respondents and we are clearly of opinion that the case put before the learned Single Judge of this Court was put up on behalf of the respondents for the first time. The plaint starts with the statement that the plaintiffs are cultivators in the village of Ratanpur. The plaint nowhere suggests that the plaintiff had any right other than that of a cultivator in the village or in any portion of it. Where the plaintiff says that he is the-owner, he says that he is the owner of the grove, that is to say, he is a grove-holder. The issue material on this point as framed in the Court of first instance runs as-follows: 1. Whether the plaintiff or the defendant is the owner of the trees in plots Nos. 182 and 189 (new)? Are the plots the groves of the plaintiff?.