RAM SEWAK LAL Vs. BASHIST

JUDGEMENT

(1.) This is an appeal by the plaintiff against an order passed by the lower appellate Court by which the decree passed by the Court of first instance was set aside and the plaint was returned to the plaintiff for presentation to the proper Court.

(2.) The plaintiff instituted the present suit in the civil Court and sought a declaration that a consent decree, dated 15 September 1942, in Suit No. 407 of the revenue Court was void and ineffectual against him. It was the case of the plaintiff that he was the occupancy tenant of the plots mentioned at the foot of the plaint and that he was in possession of the same. The plaint went on to allege that defendants 1 to 3, namely, Bashist Pandey, Rikhi and Singhasan Pandey, in collusion with defendant 4, Balram Das, filed a suit in the revenue Court under S3. 59 and 61, U.P. Tenancy Act and in the course of hearing of that suit a fraud was practised upon the plaintiff and he was made to give an admission of the claim put up by the plaintiffs of that suit. As a result of the decree passed by the revenue Court his name was ordered to be removed from the revenue papers and this was the principal relief which he sought in the plaint. Subsequently an application for amendment of the plaint was filed and allowed. In substance, however, by reason of the amendment, relief (a) of the plaint was modified only in this sense that a declaration was sought to the effect that the decree passed in Suit No. 407 was null and void as against the plaintiff. In substance, however, the relief (a) claimed by the plaintiff remained intact.

(3.) The suit was contested by defendants 1 to 3 and defendant 4. It may be stated here that defendant 4 admittedly is a usufructuary mortgagee of the zamindari interests of defendants 5 and 6 in which the plots in suit are situate. In substance, the defence was that the civil Court had no jurisdiction to entertain the suit. It was denied that any fraud or undue influence was practised on the plaintiff so far as the admission made by the plaintiff in the earlier suit in the revenue Court was concerned. Lastly, it was pleaded that the claim was barred by Section 42, Specific Belief Act. The Court of first instance on a consideration of the matter and after considering some rulings placed before it came to the conclusion that the civil Court had jurisdiction to entertain the present suit. On the merits, it was held that the suit was not barred by Section 42, Specific Relief Act, nor were the allegations of fraud made by the plaintiff in regard to his admission in the course of proceedings in the earlier suit in the revenue Court proved, In view of these findings the learned Munsif decreed the suit. On appeal, the learned Civil Judge considered only one question, namely, the question relating to the jurisdiction of the civil Court to entertain the present suit. On a consideration of the matter at some length and after considering various rulings, particularly the ruling of this Court reported in Ram Dihal Dubey V/s. Gajraj Upadhaya , the learned Judge came to the conclusion that the present suit should have been filed in the revenue Court and that the revenue Court could grant the relief sought in the present suit. In view of this finding the appeal was allowed, the decree of the Court below was set aside and the plaint was ordered to be returned for presentation to the proper Court. Against the order of the learned Additional Civil Judge, plaintiff has come up in appeal.