RAM REKHA PANDEY Vs. INDER TEWARI

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit brought against him by the plaintiff to recover possession over plot No. 487 described in the plaint. The plaintiff's case was that Sheoraj Tewari was its tenant and on his death the plaintiff and defendants Nos. 2 and 3 succeeded to it by survivorship as members of the joint family. Tilku Pandey held the land as sub-tenant from Sheoraj Tewari. Tilku Pandey died 32 years ago without leaving any heir. On his death the plaintiff and defendants Nos. 2 and 3 took possession over the grove in dispute as tenants. Defendant No. 1 applied to the Revenue Court for entry of his name in succession to Tilku Pandey deceased, and on the strength of the order passed by the Revenue Court in his favour he dispossessed the plaintiff and defendants Nos. 2 and 3 on August 6, 1931. Defendant No. 1 contended that the plaintiff and defendants Nos. 2 and 3 did not belong to the family of Sheoraj Tewari nor were they joint with him and consequently they had no right or interest in the grove in dispute. Tilku Pandey had taken the land from the zamindar and was the real tenant and planted the grove and that he (defendant No. 1) had succeeded to the land in dispute from Tilku Pandey and was in rightful possession over it. The trial Court (the learned Additional Munsif) held that the plaintiff and defendants Nos. 2 and 3 were joint with Sheoraj Tewari and were entitled to the grove in question by survivorship. He also found that Tilku Pandey was the sub-tenant and defendant No. 1 was entitled to the land in dispute as his heir. The learned Additional Munsif decreed the suit for constructive possession. An appeal was filed by the defendant and a cross- objection by the plaintiff. The learned Additional Subordinate Judge, Ballia, agreed with the rinding of the learned Additional Munsif as regards Sheoraj Tewari being joint with the plaintiff and defendants Nos. 2 and 3 and the plaintiff and defendants Nos. 2 and 3 succeeding to the grove in dispute by survivorship. He further found that defendant No. 1 did not belong to the family of Tilku Pandey and therefore he was not Tilku Pandey's heir and had no interest in the grove in dispute. He also found that Tilku Pandey was the subtenant of Sheoraj Tewari and had planted the grove sometime before 129 Fasli but he (Tilku Pandey) had ceased to have any right in the grove, after sometime and the plaintiff and defendants Nos. 2 and 3 bad been in possession over the grove in suit from before Tilku Pandey's death and they were entitled to a decree for possession.

(2.) On the findings recorded by the learned Additional Subordinate Judge which are findings of fact and are based on evidence, the plaintiff is entitled to a decree for possession as defendant No. 1 is not found to have any right or interest in the grove in dispute. The learned Counsel for the appellant urged that the suit was not cognizable by the Civil Court as it was barred by Section 99 of the Tenancy Act (Act III of 1926). The plaintiff's case, as will appear from his plaint, was that Sheoraj Tewari, the plaintiff and defendants Nos. 2 and 3 were members of the joint Hindu family, that, on the death of Sheoraj Tewari, the plaintiff and defendants Nos. 2 and 3 became the owners of the whole of the joint property by right of survivorship. The plot in dispute as alleged by plaintiff was the cultivatory holding of the plaintiff and defendants Nos. 2 and 3. Tilku Pandey had taken it as sub-tenant and planted a grove thereon agreeing to give half of the produce to the plaintiff and defendants Nos. 2 and 3. About 32 years ago Tilku Pandey died issueless and since his death the plaintiff and defendants Nos. 2 and 3 and Sheoraj Tewari remained in possession and occupation of the land in dispute as tenants and grove-holders. Defendant No. 1 had nothing to do with Tilku Pandey and had no concern with the grove in dispute. The plaintiff further stated that defendant No. 1 had dispossessed the plaintiff a short time before the suit on the strength of an order of the Revenue Court for the entry of the name of defendant No. 1 against the land in dispute that defendants possession was altogether wrongful. It will be thus evident that all the allegations in the plaint referred to above clearly show that defendant No. 1 was alleged by the plaintiff as a rank trespasser in possession to the property in dispute without any right or interest. Section 99 of the Tenancy Act lays down that Any tenant or rent-free grantee ejected from or prevented from obtaining possession of, his holding or any I art thereof, otherwise than in accordance with the provisions of this Act, by (a) his landholder or any person claiming as landholder to have a right to eject him, or (b) any person claiming through such land-holder or person whether as tenant or otherwise, may sue the person so ejecting him or keeping him out of possession. (i) for possession of the holding; (ii) for compensation for wrongful dispo ssessio and (in) for compensation for any improvement he may have made.

(3.) In this case the defendant has not been alleged by the plaintiff to be claiming through the landholder or any person claiming as landholder. On the other hand, as already stated, the defendant has been alleged as a trespasser. Where a plaintiff alleging himself to be a tenant as in this suit sues a defendant treating him as a trespasser, for possession and compensation regarding a holding or a part thereof, and the defendant pleads tenancy, the suit is maintainable in the Civil Court. This view is fully supported by the Full Bench case in Ananti V/s. Channu As held therein The jurisdiction of the Court is to be initially determined by the allegation made in the plaint and the allegations made in the written statement cannot oust that jurisdiction unless and until the allegations of fact have been gone into, tried judicially and found to be proved, and the plaintiff's allegations have been found to be false.