ALI AHMAD Vs. MEHARBAN ALI

JUDGEMENT

(1.) THIS is a second appeal by defendant 2 who was one of the two defendants who contested the suit of the plaintiff. The plaintiff is a zamindar who had a decree for arrears of rent against defendant 8 Najm-ud din and defendant 9 Hissam-ud- din, sons of Qalandar Bakhsh. He obtained a decree on 17 December 1931 and prior to April 1932 he attached the one-half of the standing rabi crop of these two tenants in nine other plots which were not in his zamindari but which were in the zamindari of defendants 1 to 7. These defendants are four sons of Wazir Ali, his wife and his two daughters. Defendants 1 to 7 subsequent to the attachment purported to distrain the rabi crop in satisfaction of arrears of cash rent and this distraint was made in April 1932. The plaintiff then brought the present suit on 3rd May 1932 alleging that the rent paid by defendants 8 and 9 to their zamindars, defendants 1 to 7, was not a cash rent but "batai" and that the alleged distraint was fictitious. The plaintiff asked for a declaration that defendant 8 and 9 were tenants of these plots paying rent by "batai" and that the distraint by defendants 1 to 7 was null and void against the plaintiff. The Courts below have granted this relief. The first ground which is taken is that the suit does not lie in the Civil Court but if it lies at all it would lie in the Revenue Court. Now the finding of the lower Appellate Court is that the patwari's papers prove that the plots were held by defendants 8 and 9 on "batai." It was also the case for defence that defendant 10 was a tenant, but this is found to be incorrect by the lower Appellate Court. The Court also found that a notice Ex. A dated 23 February 1932 was fraudulent. Now learned Counsel for appellant argued that the suit was barred in the Civil Court by Section 230 of Act 3 of 1926, the Agra Tenancy Act. That Section provides that all suits and applications of the nature specified in the Fourth Schedule shall be heard by Revenue Courts only. Learned Counsel referred to the Fourth Schedule Group B, No. 17 which is a suit under Section 123. Section 123 provides that at any time during the continuance of a tenancy either the landholder or the tenant may sue for a declaration as to certain matters, one of which is the rent payable and whether payable in cash or kind. Now this Section gives a right to the landholder of the particular holding to bring such as suit in the Revenue Court. The plaintiff is not a landholder of the holding comprised; of the numbers in suit and therefore he could not bring a suit in the Revenue Court, under Section 123, Agra Tenancy Act. Learned Counsel has failed to show any other Section in the Fourth Schedule and clearly the suit would not come under Section 123. Accordingly therefore under Section 230, Agra Tenancy Act, the jurisdiction of the Civil Court is not barred.

(2.) IN ground 3 of the appeal, it was alleged that the Courts below were wrong in holding that the distraint was barred under Section 156, Tenancy Act, and learned Counsel for appellant pointed out that under Section 152; the profits of the holding were hypothecated for the rent. Sub-section (2) provides that distress and sale may be void where there is ah arrear of rent. Now in the present case the claim of the appellant and his co-zamindars was that there was an arrear of cash rent. It has been found that that claim is false. Distraint cannot be made for rent which is not yet in arrears. Therefore the Courts below were correct in holding that the alleged distraint was collusive and that there was no distraint in law. Ground No. 4 was that a suit to contest a distraint was not maintainable at the instance of anybody except a tenant and plaintiff had no cause of action. Now the; Court below finds that the attachment of the plaintiff in execution of his decree was only of half the produce of the plots in dispute; that is the plaintiff having a decree for arrears of rent attached the half of the produce which belonged to his tenants, defendants 8 and 9, under the "batai" system. The plaintiff did not interfere with the half of the produce which belonged to defendants 1 to 7. But, by the collusive distraint defendants 1 to 7 did interfere with the half of the produce attached by the plaintiff. The plaintiff therefore had a valid cause of action in the Civil Court. We dismiss this second appeal with costs.