OM PRAKASH Vs. JUGAL KISHORE

JUDGEMENT

(1.) This is a plaintiffs appeal from a decree and order of the learned District Judge of Moradabad, reversing the decision of the trial Court in a suit filed by the plaintiff's under Section 222, Agra Tenancy Act, 1926. The plaintiffs sued as co-sharers, and the defence raised by the defendants was that the plaintiffs had no title to the estate of Jiwan Ram. The circumstances briefly were that there had been a dispute between the present plaintiff appellants and the present defendant-respondents as to the title to the property left by Jiwan Ram, and in 1927 the matter had been agitated in the Revenue Courts, which had decided in favour of the present plaintiff-appellants. The land revenue of the mahal in which both parties were recorded as co sharers having fallen into arrears, a. shop which had been the property of Jiwan Ram and which bad passed into the possession of the present plaintiff-appellants owing to the decision given by the Revenue Courts in 1927 was put up to sale and sold, and the appellants therefore sued the other co sharers in the mahal for contributionThis suit was originally decreed by the Revenue Court, but on appeal the District Judge apparently considering the circumstances to be peculiar remanded the case to the Assistant Collector for a decision on the merits whether the plaintiffs are or are not the heirs of Jiwan Ram. On remand the Revenue Court again went into the matter which had been decided by the Revenue Court in 1927 and came to a contrary conclusion on the ground that the plaintiffs were not the legitimate sons of Jiwan Ram. On this the District Judge discussed the question of title at some length and dismissed the plaintiffs suit.

(2.) It will be observed that the result has been that the question of title, pure and simple, has been decided and that the decision is contrary to that arrived at by the Revenue Courts in 1927. It is argued that the District Judge had no jurisdiction to remand the case for the decision of the Revenue Court, and also that the decision of the Revenue Court of 1927 was binding Under Rule 222, Agra Tenancy Act, a co sharer who pays arrears of revenue on account of another co sharer who defaults is entitled to sue such co-sharer for the amount so paid. There is no doubt that the plaintiff-appellants were recorded as co-sharers and that as such they had a right to sue under Section 222, but it has been argued on behalf of the respondents that under Clause (b) of Section 271, Agra Tenancy Act, it is open to the defendants in a suit instituted under chapter 14 of the Act, such as the present one, to plead that the plaintiff has not got the proprietary right entitling him to institute the suit. In such circumstances the Revenue Court - if the question has not already been determined by a Court of competent jurisdiction - is bound to frame an issue on the question of proprietary right and submit it to a competent Civil Court for the decision of that issue only, and when the issue had been determined the Revenue Court shall accept the finding of the Civil Court and decide the suit. This procedure was not adopted. The trial Court held that it was not competent to decide the issue.

(3.) It is however argued that the District Judge had jurisdiction under Clause (a), Section 272 to remand the case to the Revenue Court since the question of proprietary title was argued before him in appeal. I think it is quite clear that even if the provisions of Section 272 apply, the District Judge had no power to remand a question of title to the Revenue Court. Under Section 272 where a question of title is raised in the appellate Court and the District Judge considers that he has not before him all the materials necessary for the determination of such question, he may either (a) remand the case to the Revenue Court or (b) frame issues with respect to this question and refer them to a Subordinate Civil Court. In order however that the provisions of Section 272 may be employed it is necessary that the question of proprietary right should have been determined by the Revenue Court (i.e., in the manner provided in Section 271), and all the necessary materials should not be before the District Judge. As I have pointed out, the Revenue Court had not determined the question of proprietary right and moreover there was a decision of the Revenue Court dated 1927, which apparently provided all the materials also necessary for the District Judge to decide the matter.