KUNWAR JAGDAMBA SINGH Vs. RAM SARUP

JUDGEMENT

(1.) This is an application for revision under Section 115, Civil P.C., by the plaintiffs against an order passed by the learned District Judge, Mainpuri, upholding an order of a Munsif of that district returning the plaint for presentation to the revenue Court, which, according to the Munsif, is the proper Court to take cognizance of the suit. The plaintiff-applicants are some of the zamindars of the village in which the land in dispute lies. They took ejectment proceedings against a tenant and ejected him. Defendants 4 and 5, who are co-sharers of the plaintiffs, then granted a lease to defendants 1-3. The plaintiffs do not recognize these defendants as their tenants and seek to eject them as trespassers. The defendants, however, maintain that the lease granted by defendants 4 and 5 is valid having been granted by them with the concurrence of the plaintiffs. A preliminary question was raised in the trial Court as to whether the civil Court has jurisdiction to entertain the suit. The trial Court held that the suit was exclusively triable by the revenue Court. Accordingly it returned the plaint to the plaintiffs for presentation to the revenue Court. The plaintiff appealed from that order to the District Judge, who took the same view. In the present revision it is contended that the civil Court has jurisdiction and that the lower Courts were wrong in holding to the contrary.

(2.) The jurisdiction of the Court is primarily determined by the allegations contained in the plaint. The plaintiffs have clearly alleged in the plaint that defendants 1-3 are trespassers. The plaint goes on to allege that defendants 1-3 claim to hold the land under a lease granted by defendants 4 and 5, which lease is invalid. The lower Courts have held that the plaintiffs can take ejectment proceedings under Section 44, Tenancy Act, and therefore the civil Court has no jurisdiction. The lower Courts have relied on Dan Sahai V/s. Jairam Singh and Mt. Duiji Kunwar V/s. Baila Kunwar and have distinguished the Full Bench ease in Mohammad Muslim V/s. Maharania .

(3.) I may say at once that the case of Mt. Duiji Kunwar V/s. Baila Kunwar is not in point. It was a suit by persons claiming to be the heirs of a tenant for establishment of their right. It was clearly not a case in which a zamindar sued for ejectment of the defendant treating him as a trespasser. In Dan Sahai V/s. Jairam Singh certain observations occur which undoubtedly support the view taken by the lower Court. On the facts of that case however it is perfectly clear that the civil Court could have no jurisdiction. The suit was tried out, and it was definitely found that the plaintiff zamindar had not taken delivery of possession, though a decree for ejectment had been passed. Instead of executing the decree, the zamindar instituted a suit in the civil Court on the strength of a formal delivery of possession given at the time when actual ejectment of the tenant was not permissible under the Tenancy Act. It was also found that the tenant continued in possession in spite of the so called delivery of possession. It is perfectly clear that the relationship of landlord and tenant was not put an end to by actual ejectment of the tenant. The decision in that case was put in the alternative. It was held that if the dakhal- namah did not operate as a break in the tenancy of the defendant, he continued to be a tenant; and if it did the defendant was a trespasser, against whom a suit under Section 44, Tenancy Act, was maintainable in the revenue Court. In either view, it was said, the civil Court had no jurisdiction. I was one of the Judges who decided that case but have no hesitation in saying that if our attention had been drawn to the case in Mohammad Muslim V/s. Maharania the second alternative ground, on which the decision was based, would have been omitted.