BISHESHAR PRASAD PANDEY Vs. RAGHUBIR

JUDGEMENT

(1.) This revision involves an important question as to the application of Section 115 of the Civil P. C.. The applicant was plaintiff in the trial Court. He had given a perpetual lease of Bs. 31-8-18 biswansis of land to two of his servants on a rent of Rs. 17-1 a year. He subsequently gave a theka of his zamindari share to the second defendant Indrasan Singh giving him the right to realize the rent from the perpetual lessees. After the theka had been given the perpetual lessees relinquished their lease. According to the plaintiff, the first defendant Raghubir Singh, who is the father of Indrasan Singh the second defendant, obtained unlawful possession of the 34 bighas odd of land. The plaintiff asserts that on the relinquishment by the perpetual lessees he himself became entitled to actual possession of the 34 bighas held by them. He therefore brought the present suit for the ejectment of Raghubir Singh as a trespasser, and for mesne profits and rent for three years. In the alternative, in case his first and second reliefs were refused, he asked for a declaration that he and not the second defendant, was entitled to realize rent from Raghubir Singh in respect of this area, and also claimed a sum of Rs. 999 against the second defendant. This was the same amount which in his earlier relief he had claimed against Raghubir Singh. Apparently it consists partly of rent realized by the second defendant from Raghubir Singh and partly of damages. It must be mentioned here that the plaintiff had previously sued Raghubir Singh in the revenue Court treating him as tenant. Raghubir Singh pleaded that he was the sub-tenant of his son Indrasan Singh and had paid the rent to the latter in good faith. The revenue Court decided the suit on the issue of payment in good faith under Section 198, and, holding that the rent had been paid in good faith as alleged dismissed the plaintiff's suit, and directed him to establish his rights in the civil Court. The plaintiff's position in the present suit is that, in the first place, Raghubir Singh is a trespasser, pure and simple, but that even if this is not the case, and he is to any extent the sub-tenant of the second defendant, the latter is only entitled to realize from him the same rent which he could have realized from the perpetual lessees, namely Rs. 17-1, and that the balance of the rent is payable to the plaintiff. The entire rent of the holding of 34 bighas is admittedly Rs. 88.

(2.) The suit was filed in the Court of the Subordinate Judge. The defendants resisted the claim on the merits, and also pleaded that it was not cognizable by the civil Court. The Subordinate Judge adopted a curious course. He framed and decided issues on the merits. Having decided these, he proceeded to direct the plaint to be returned on the ground that he had no jurisdiction. This order has been upheld by the learned District Judge on appeal. The Subordinate Judge held that the defendant was, in fact, a tenant and not a trespasser, having been let into possession of the land by the plaintiff's father. This was a decision on the merits. The Subordinate Judge did not hold that on the facts alleged in the plaint he had no jurisdiction. He held that the case set out in the plaint was untrue in fact. On this finding he ought to have dismissed the suit on the merits, instead of returning the plaint under Order 7, Rule 10 of the Civil P. C.. The Subordinate Judge committed another error. In their written pleadings the defendants took the position that Raghubir Singh was the sub-tenant of his son, the second defendant. In the course of a subsequent oral pleading under Order 10, Rule 1, the second defendant set up the case that Raghubir Singh was the tenant of the plaintiff himself, having been admitted to the occupation of the holding by the plaintiff's father. Raghubir Singh himself was not examined. If this was the position taken up by Raghubir Singh, as it appears to have been, Section 202 of the Tenancy Act was applicable, and the Subordinate Judge ought to have directed Raghubir Singh to file a suit in the revenue Court to establish the alleged tenancy. It may be that some of the reliefs claimed in the suit are such as could only have been decreed by a decree of a revenue Court, but it is quite clear that the main relief asked for, namely the ejectment of Raghubir Singh as a trespasser, was cognizable bythe civil Court. In view of the decision under Section 198 of the Tenancy Actthe plaintiff was also entitled to ask the civil Court for a declaration that he, and not the second defendant, was entitled to realize rent from Raghubir Singh. On the merits therefore it is clear that the Courts below were in error in directing the plaint to be returned, and that the Subordinate Judge, in refusing to try the suit, failed to exercise a jurisdiction vested in him by law.

(3.) The respondents raise a preliminary objection that no revision lies. They claim that however wrong the order of the Subordinate Judge may have been, his decision has been superseded by the appellate decree of the District Judge. The District Judge had jurisdiction to decide the appeal, and did decide it, and whether his decision is right or wrong on the merits, he cannot be said to have failed to exercise a jurisdiction vested in him by law or to have acted irregularly in the exercise of his jurisdiction.