KAN KUAR Vs. ATAL BEHARI LAL

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for recovery of land. The defendant pleaded that the plaintiff was not the land-holder and that the relationship of land-holder and tenant did not exist between the parties. Both the Revenue Courts below decreed the suit. The lower appellate Court held that no appeal lay to his Court, but has also gone on to decide the appeal on the merits. The third appeal filed in this Court has been dismissed on the ground that no appeal lay to the District Judge. It is contended before us that an appeal lies because a question of proprietary right was in issue between the parties in the first Court and is in issue in appeal now. In support of this contention the learned advocate for the appellant relies on the cases in Gambhir Singh V/s. Surendra Singh 1930 ALJ 1065 and Sheo Dihal Dube V/s. Moti Lal Ahir 1935 AWR 489. These cases no doubt support his contention; but the last mentioned case was decided a few months before the decision of the present case by the same learned Judge who on reconsideration has taken a different view and reviewed the judgment in Sheo Dihal's case (2). We think that the latter view is sound. Under the old Tenancy Act, Section 177 had provided for such an appeal 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 appeal. Now we have Section 243 in its place, which requires that a question of proprietary right should have been in issue between the parties claiming such right in the first appellate Court and shall be in issue in the appeal.

(2.) NOW the words "proprietary right has been in issue between the parties claiming such right" clearly indicate that the dispute between the parties should be as regards their respective proprietary rights and that each party should be claiming such right. The mere fact that the defendant is denying the plaintiff's proprietary right without setting up any proprietary right in himself would not bring the case within the scope of the section, because there would be no question of any proprietary right between the parties claiming such right. In such a case a defendant does not claim any proprietary right at all and therefore the dispute between the parties is not as regards the proprietary right within the meaning of the section. The intention of the legislature by using the words "parties claiming such right" obviously was that the parties between whom the dispute arises should each claim such a right. There were some cases even under the old Act in which it was held that a mere denial of the plaintiff's title as a proprietor was not enough. That view has now been made clear by the legislature. We therefore think that the cases mentioned above were wrongly decided and the view expressed by the learned Judge of this Court in the present case is correct. The appeal is accordingly dismissed with costs.