BABUNANDAN SINGH Vs. PHUNESH SINGH

JUDGEMENT

(1.) This is a Letters Patent appeal by the defendants against a decree of a learned single Judge of this Court, under the following circumstances : Plaintiff 1 brought a suit in the Court of the Munsif asking for possession of certain fallow land, trees and bamboo clumps from the defendants. The plaintiff set out that he was the lessee (otherwise the kadar), of the entire 16 annas zamindari under the lease of 19 December 1919 of the whole of the mauza and he stated that in part of a certain sub-number 384/1 in the abadi the house of one Ganesh had stood and that 8 years ago Ganesh had gone away to another village and the zamindar of the village entered into possession of the ruins of the said house. The plaint was brought in 1931 and it is clear that by "zamindar" the plaintiff did not mean himself but meant that the zamindar previous to this theka had entered into possession. The plaint, proceeded to say that there were jackfruit trees and bamboo clumps and a mm tree on this fallow land and in para. 5 it is set out that recently the defendants without, the consent of the zamindar had planted some mircha and bhanta on the fallow land and plaintiff 1 had let this portion of land to plaintiff 2 for the construction of a house, but the defendants interfered with, this construction and forcibly erected a thatched structure and proceeded to plant bananas. The boundaries of the plot were given. The written statement of the defendant pleaded in para. 2 that the house of the defendants had been situated on a portion of the land in question for a very long time. Now the land in question was referred to as 384/1 which is admitted to be a considerable area of the abadi and para. 2 of the written statement proceeded to say that on another portion a nim tree jackfruit, bananas, babul trees, bamboo clumps and rubbish heap belonging to the defendants have been in existence for a long time and on a portion of the land vegetables, etc., were grown; that Ganesh had gone away more than eight years ago and that the defendants had been in possession and occupation of the said land on payment of a rent of Re. 1-0-9 annually for a long time. On 2 May, the parties made oral statement under Order 10, Rules 1 and 2, and the plaintiff's pairokar made an admission that there were chillies and brinjals, that is vegetables, grown on the land by the defendants and this was repeated by the defendant who further stated that the land had not been taken for agricultural purposes; it had been taken for the purpose of tethering cattle, planting trees and growing vegetables; no grain had been sown; that the defendants had got proceeds of rent for the land in question which was Re. 1-0-3 and that the area was 18 acres and the defendants had been in possession of the land for a long time. The defendant however proceeded to give boundaries, three of which are different from the boundaries in the plaint. Now there is therefore a certain amount of confusion in the mind of the defendant as to what precisely was the portion of land intended in the plaint and the plaint did not have any map attached to it to show what portion of land was meant.

(2.) As the Court found on 2 May, that the pleading of the defendant was not quite clear on the point as to whether the defendant was pleading tenancy and whether an issue regarding it should be sent to the revenue Court, the case was adjourned for the purpose of a clear pleading. Two days later, on 4 May 1931, the defendant made his case clear by putting in an application that he was an agricultural tenant and that Section 273 applied and that an issue should be referred to the revenue Court. Accordingly the Munsif referred the issue to the revenue Court and the revenue Court framed certain issues of which No. 1 was whether the defendants are tenants of the plaintiffs in respect of the plot in dispute, and on this issue the revenue Court came to the1 finding that the defendants were tenants of the plaintiff of the plot in dispute. The civil Court therefore dismissed the suit which had been brought against the defendants as trespassers. The plaintiffs then filed an appeal before the District Judge. The District Judge had all the necessary materials before him on the record, as among other things a commissioner had been appointed to go to the plot to make an inquiry and he had prepared a map and given a report on the nature of the land. The lower appellate Court came to the conclusion as follows: Coming to the merits of the case, I think that the respondents are the tenants of the plot as found by the Revenue Court.... The portion of the abadi plot in dispute is No. 384/9. It is recorded in the name of the father of respondent 1. He was recorded as a non-occupancy tenant and subsequently as a tenant of 12 years standing. The rent of that plot is paid along with the rent of other agricultural land. It is now urged that the land in suit is really not the plot No. 384/9 but another contiguous to it. A commission was issued by the Revenue Court to determine the same. I agree with the Revenue Court that the rent is paid for the plot of land No. 384/9 and not for the portion of the abadi land on which the respondents house stands. The Khatauni of 1322 shows that the father was a tenant of 12 years standing in that plot. The rent of the said plot is Re. 1-0-3 which is not said to be the ground rent of the site of the respondents house. I do not believe this. The plot of land is an agricultural land and is used for the cultivation of vegetables from over 12 years and the respondents have been rightly found to be tenants of the same. The appeal is therefore dismissed.

(3.) Now in second appeal it was urged that the land was not an agricultural holding and the provisions of Section 273, Agra Tenancy Act, could not apply and that the procedure adopted by the trial Court was not warranted and that the case had not been legally determined by the Courts. This plea has been accepted by the learned single Judge and he has ordered that the case should be remanded to the Court of first instance for disposal on the merits. It is against this order that the defendants have come in appeal. One difficulty in this matter is that even if the allegation were correct that the Munsif should not have made a reference under Section 273, Agra Tenancy Act, still the case on the merits was before the learned District Judge and he has come to a finding on the merits and it is not alleged that there was any error of procedure in the Court of the District Judge. Now what was before the learned single Judge of this Court was a second appeal under Section 100, Civil P.C. That section lays down in Sub-section (1) that an appeal may lie on the following grounds : (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law. Neither of these is alleged. The only remaining ground is Sub-section (c) which is as follows: (c) A substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or detect in the decision of the case upon the merits.