MUSAMMAT SHEOKALI Vs. GAURI RAI

JUDGEMENT

(1.) The plaintiff Musammat Sheokali sued a large number of zemindars, for a declaration that she was the tenant of a particular holding. The grounds of her claim were that her father was occupancy tenant, after whom her mother, his widow remained a tenant until 1328 Fasil when on her death the plaintiff took possession. It was further stated that the defendants had admitted her tenancy and allowed her to remain in possession. The trial Court of the Assistant Collector declared under Section 25 of the Tenancy Act of 1901 that the plaintiff was a non- occupancy tenant of the land in suit on behalf of the, defendant zemindar. She was not an heir under Section 22 of the Tenancy Act but some of the defendants favoured her and acknowledged her as tenant so the trial Court came to the conclusion that she was a tenant on behalf of the defendants. The defendant Gauri Rai who owns 13 annas out of a one rupee share in the zemindari of the village appealed to the Commissioner. In the written statement he had raised the plea that he took possession of the land in dispute on the death of the plaintiff's mother as zemindar. For this reason the Commissioner was of opinion that a question of proprietary title was raised in the trial Court.

(2.) The second ground of appeal to the Commissioner was that from the evidence on the record it had been proved that the land in suit was the khudkasht of the appellant Gauri Rai. This was the reason why the Commissioner came to the conclusion that a question of proprietary title was a matter in issue in the appeal also. He returned the petition of appeal which was thereupon filed in the Court of the District Judge. The District Judge decided that the woman did take possession of the land in suit on the death of her mother, but that the possession was unlawful and not that of a tenant; so he refused to grant her the declaration which she had sought. Curiously enough the District Judge failed to decide the point whether at the time of the institution of the suit the plaintiff was in possession or the defendant Gauri Rai. It seems hardly likely that the plaintiff could have been in possession because if she had been, there would have been no cause for her to seek the assistance of the Court. It is obvious that she was out of possession and the frame of the suit under Section 95 was the cleverness of some revenue agent to aviod the real tussle as to actual physical possession. A woman does not put herself to expense for the honour and glory of a declaration of which she has little understanding.

(3.) The decree of the lower Appellate Court is attacked here on two grounds: (1) That he had no jurisdiction which really lay with the Revenue Court of Appeal. (2) That he had wrongly applied the provisions of Section 194 of the Tenancy Act.