KAN KUAR Vs. ATAL BEHARI LAL

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit brought against him by the plaintiffs-respondents for recovery of rent from Rabi 1335 F to Kharif 1338 F. The suit was originally brought against the defendant by Atal Behari and Sita Ram. On an objection by defendant 1, Lalta Prasad, Daya Shanker and Go bind Prasad, who had been impleaded as defendants were made plaintiffs. Defendant 1 contended that plaintiffs 1 and 2, that is Atal Behari and Sita Ram, were not the landholders and had no right of suit and that the suit was barred by Order 2, Rule (2). Civil P.C. The trial Court found against the appellants and decreed the suit. An appeal was filed and the decree of the trial Court was confirmed by the learned Assistant Collector, who heard the appeal. Against his decision an appeal was filed to the learned District Judge, who dismissed the appeal holding that no second appeal lay. Against this decision this appeal has been filed. A preliminary objection has been taken by the learned Counsel for the respondents that no third appeal lies. Under Section 246, Agra Tenancy Act, an appeal lies to the High Court from the appellate decree of a District Judge on any of the grounds specified in Section 100, Civil P.C. 1908. An appeal shall lie under Section 243, Tenancy Act, to the District Judge from the appellate decree of a Collector in any suit in which (a) a question of proprietary right has been in issue between the parties claiming such right in the first appellate Court, and is in issue in the appeal; or (b) a question of jurisdiction has been decided and is in issue in the appeal. It has been urged by the learned Counsel for the appellant that inasmuch as the defendant-appellant denies the proprietary right of the plaintiff-respondents, a question of proprietary right is in issue between the parties.

(2.) Under Section 243, Tenancy Act, three things are necessary : (1) A question of proprietary right should be in issue; (2) between the parties claiming such right, and (3) it should be in issue in the first appellate Court as well as in. the appeal.

(3.) In this case the appellant does not claim any proprietary right for himself. So it cannot be said that there is a question of proprietary right in issue between the parties claiming such right. The finding of the learned District Judge that no second appeal lay is correct, The appeal fails on the preliminary point. It is therefore ordered that it be dismissed with costs.