HARKESH Vs. MAMRAJ

JUDGEMENT

(1.) IN this case the plaintiffs-appellants came into Court alleging that they were entitled to a one-third share in an ancestral occupancy holding and claiming joint possession with the defendants to the extent of their share They originally filed their suit in the Revenue Court, and the Revenue Court refused to entertain it and referred them to the Civil Court. They have now filed their suit in the Civil Court, and both the learned Sub-ordinate Judge and the learned District Judge have held that the Civil Court cannot entertain it. The decisions of the Court below are contrary to a long series of rulings of this Court which has with one or two possible exceptions consistently held that a suit between rival claimants to a tenancy to which the landlord is not a party is cognizable by the Civil Court Of the numerous rulings on this point it will be sufficient to refer to Bhup v Ram Lal 11 INd. Cas. 268 : 33 A. 795 : 8 A.L.J 1009 and Jagar Nath V/s. Ajudhya Sinqh 17 INd. Cas. 376 : 35 A. 14 : 10 A.L.J. 408 and the recent case of Nohar Ahir V/s. Partab Ahir 79 INd. Cas. 367 :21 A.L.J. 899 :A.I.R. 1924 All. 231 : L.R. 5 A. 1 Rev. No authorities are referred to by the Court below. Of the two authorities referred to by the trial Court one is not in point at all, and the other, the decision in Diwan Singh v. Randhera 26 INd. Cas. 718 : 12 A.L.J. 1322, is a case decided by a Single Judge in the year 1914 which has not been followed in subsequent cases. We set aside the decrees of the Courts below and remand the case through the lower Appellate Court to the Court of first instance for trial on the merits.

(2.) THE appellants will get their costs of this appeal and of the Court below including fees in this Court on the higher scale. Other costs will abide the result.