MOHAMMAD SHABBIR Vs. ZAIN-UL-ABDIN

JUDGEMENT

(1.) This is a plaintiffs appeal and arises out of a suit for ejectment of the defendants from Plot No. 18/1 on the allegation that the defendants first party, who were the occupancy tenants of the said plot had without any right permitted the defendants second party to build a house on that plot, and the defendants second party had actually built a house and this action of the defendants was detrimental to the land and was in consistent with the purpose for which the land was let, and as such the defendants were liable to ejectment under Clause (b). Section 57 of the Tenancy Act.

(2.) The main defence to the suit was that the house in question was situate, not on Plot No. 18/1, but on Plot No. 18/2 and as the plaintiffs had no concern with Plot No. 18/2 they had no right to maintain the suit. It was also contended by one of the defendants that the relation of zemindar and tenant did not exist between the plaintiffs and that particular defendant, and as such the suit was not cognizable by the revenue Court.

(3.) During the course of the trial it was admitted by the defendant who had challenged the jurisdiction of the revenue Court to entertain the suit, that he, in fact, was the tenant of the plaintiffs of Plot No. 18/1, and after this admission the main controversy between the parties centered round the question whether the house in question was situate on Plot No. 18/1 on upon Plot No. 18/2. If the house existed on Plot No. 18/2 the plaintiffs obviously were not entitled to a decree. On the contrary, if the house was found to exist on Plot No. 18/1, the claim of the plaintiffs was unanswerable. The trial Court came to the conclusion that the house was situate on Plot No. 18/1 and that the plaintiffs had brought the suit within a year of the accrual of the cause of action and that the plaintiffs were entitled to a decree. Against the decree of the trial Court an appeal was filed before the District Judge. At the time of the hearing of the appeal a preliminary objection was raised on behalf of the plaintiffs to the effect that no appeal lay to the District Judge against the decree of the Assistant Collector decreeing the plaintiffs suit. The learned District Judge was of opinion that a question of proprietary title was in issue in the Court of first instance and was a matter in issue in appeal before him and as such he overruled the preliminary objection and decided the appeal on the merits. The learned District Judge as a result of the findings arrived at by him dismissed the plaintiffs suit.