MOHAMMAD MUSLIM Vs. MUSAMMAT MAHRANIA

JUDGEMENT

(1.) This is a Reference under Section 267 of the Agra Tenancy Act (III of 1926), and arises out of a suit brought in the Munsif's Court, Fatehpur, by Manohar Singh to eject the defendant Sheo Saran. The plaintiff's case was that he was the proprietor of the land, which was in the occupation of a tenant, Ram Sahai, who died on the 20 of June, 1926, without leaving any heir, with the result that the tenancy reverted to the plaintiff. He alleged that the defendant had no right to occupy the land, but he took wrongful possession, as a trespasser at the beginning of the rainy season preceding the suit. The defendant, on the other hand, pleaded that he was a tenant of the plaintiff, that from him rent had been accepted and that under Section 44 of the new Tenancy Act (III of 1926) the suit was not entertainable in a Civil Court. The learned Munsif considered that the question of law whether the Civil or Revenue Court was the correct forum, was one of difficulty and has accordingly made this Reference.

(2.) The allegations in the plaint make out a case of trespass, pure and simple. A trespass on land amounts to an infringement of a civil right and a remedy prima facie should be sought in a Civil Court. Unless, therefore, the new Act expressly ousts the jurisdiction of the Civil Court to try such civil cases, it would be difficulty to hold that the Munsif has no jurisdiction to entertain the suit.

(3.) The contention on behalf of the defendant is that a suit for ejectment of a trespasser comes under Section 44 of the Act, and in view of the provisions of Section 230 read with the Fourth Schedule, such a suit is exclusively triable by the Revenue Court. On the other hand, reliance is placed on behalf of the plaintiff on the provisions of Section 273, and on the judgment in the case of Debi Sahai v. Daulat decided on the 17 of January, 1927, by a learned Judge of this Court. The last mentioned case, though it should have been decided by a Bench of two Judges, does contain an expression of opinion in favour of the plaintiff on the main ground that on a contrary view Section 273 would become superfluous. It was a case under the Act of 1926, though by a slip the Act of 1901 was mentioned.