SAKHAWAT ALI Vs. SURAJ PRASAD

JUDGEMENT

(1.) THIS appeal arises out of a suit for arrears of rent of a certain plot of land. The suit was decreed by the Court of first instance but has been dismissed by the lower Appellate Court. The first contention put forward on behalf of the plaintiff appellant is that the lower Appellate Court had no jurisdiction to entertain the appeal. Under Section 177 of the Agra Tenancy Act an appeal lies to the District Judge in all suits in which a question of proprietary title has been in issue in the Court of first instance and is a matter in issue in the appeal. I have, therefore, to consider whether a question of proprietary title was raised and was in issue in the Court of first instance and was also in issue in the appeal. In his written statement the defendant distinctly said in paragraph 8 that "the land in dispute is not the zemindari property of the plaintiffs, nor was it ever in their possession as zemindars. They have no proprietary title thereto." In the 9th paragraph he said, "the defendant is in proprietary possession thereof." Again in paragraph 11 be said, "the land in dispute is a grove, and according to law, belongs to the defendant who has a proprietary right in it." It is clear, therefore, that a question of proprietary title to the land in respect of which rent was claimed, Was raised by the defendant in his written statement and was in issue in the Court of first instance. That Court held that the defendant was not the proprietor of the land and that the relation of landlord and tenant existed between the parties in respect of the plot in dispute. When the defendant appealed against the decree of the Court of first instance, he distinctly urged in the third paragraph of his memorandum of appeal that he was the proprietor of the disputed land. It is clear, therefore, that a question of proprietary title was in issue both in the Court of first instance and in the lower Appellate Court and, therefore, an appeal lay to the District Judge, It may be that the plea put forward by the defendant was untenable but that does not regulate the question of jurisdiction.

(2.) THE next contention on behalf of the appellant is that the matter is res judicata in consequence of an order of Mr. Alexander, Settlement Officer, dated the 31st of July 1913. That order was passed in a case relating to the amendment of jamabandi. It was not a decision in any suit between the parties and cannot operate as res judicata either in the Revenue Court or in the Civil Court. THE learned Vakil for the appellant referred to Section 35 of the Agra Tenancy Act, but that section, in my opinion, has no application to the present case and has no bearing on the question before me. THE result is that the appeal fails and is dismissed with costs.