RAM CHANDRA SINGH Vs. LALA MISRI LAL

JUDGEMENT

(1.) This is an appeal by the defendants arising out of a suit for ejectment. In 1907 a usufructuary mortgage was executed by Daulat Earn of certain zamindari share including his sir plots. At the same time he exeouted a counterpart of a lease under a contract of tenancy taking over possession of the property as lessee until the mortgage was redeemed. Admittedly Daulat Ram retained actual possession of his properties, the usufructuary mortgagee being in constructive possession thereof. Subsequently Daulat Ram sold his equity of redemption to the defendants in the mortgaged property, at the same time executed what was called a deed of relinquishment in their favour under which he relinquished and surrendered his possessory rights as lessee or 4enant in favour of the defendants. The defendants obtained possession of these plots and remained in possession until the institution of the suit. The present suit was filed by the zamindars against the mortgagees under Section 44, Agra Tenancy Act, treating the defendants as persons who had either taken or retained possession of plots of land without the consent of the landholder and in contravention of the provisions of the Tenancy Act. One of the points raised in defence was that the defendants were proprietors. The trial Court, framed an issue as to the defendants being proprietors and referred the same to the Civil Court for decision. The learned Munsif found that the defendants were proprietors and returned his finding to the Revenue Court. The Revenue Court thereupon dismissed the suit of the plaintiffs altogether. The plaintiffs appealed to the District Judge and not to the Commissioner, and the first ground taken was that the finding of the trial Court that the land in suit was the sir of the defendants was not correct. There were other grounds taken which admittedly did not raise any question of proprietary title at all. The learned District Judge dismissed the appeal. On appeal to this Court it was allowed by a learned Judge and the plaintiffs suit for possession was decreed with costs.

(2.) Two points arise for consideration in this Letters Patent appeal. The first is whether the appeal at all lay to the District Judge. There is no doubt that suits under Section 44, Tenancy Act come under Schedule 4, Group B, Serial No. 2, in which case an appeal would ordinarily lie to the Commissioner and not to the District Judge. Section 242(3) however provides for an appeal to the District Judge in a case where a question of proprietary right has been in issue between the parties and is in issue in the appeal or where a question of jurisdiction has been decided and is in issue in the appeal. No question of jurisdiction arose in this case, but it has been argued on behalf of the respondents that a question of proprietary right was raised in the first ground of appeal before the District Judge which has been quoted above. Secs.270 to 273 lay down the procedure when a question of proprietary right is raised in the Revenue Court. Expln. 2 to Section 271 however lays down that: A question of proprietary right does not include the question whether land in the actual possession of a proprietor thereof is held by such proprietor as his sir or khudkasht or as a tenant or subtenant.

(3.) It follows that where the lands were the sir plots of the defendants or where they were their tenancies, it would not be a question of proprietary right within the meaning of the section. Accordingly the requirements of Section 242 were not fulfilled; and therefore no appeal lay to the District Judge at all. The appeal should have been filed in the Court of the Commissioner.