PAYAG SINGH Vs. KAMLA PRASAD

JUDGEMENT

(1.) This is a defendant's application in revision and is directed against an order of the lower appellate Court by which it set aside an order of the Munsif directing the plaint to be returned for presentation to the proper Court. The lower appellate Court came to the conclusion that the civil Court had jurisdiction to try the suit and, therefore, remanded the case to the Court of the Munsif for being disposed of on merits.

(2.) It is contended by the learned Counsel for the applicant that the civil Court had no jurisdiction to entertain this suit and that the order of the first Court was a correct order. The suit was brought in order to obtain possession of property which was alleged by the plaintiff to be the joint family property of himself and his father Dwarka Miair, and which was further alleged to have been alienated by Dwarka Misir in favour of defendant Payag Singh. The relief claimed in the suit was that a decree for the possession of the property be passed in favour of the plaintiff on payment of Rs. 2000 or whatever sum may be found to have been taken by the plaintiff's father for legal necessity, The contention that the suit is cognizable by only a revenue Court is founded upon the ground that the properties which were transferred by the plaintiff's a father and which are the subject-matter of the suit, are certain fixed rate tenancies. It is contended that the suit could be filed finder Section 183, U.P. Tenancy Act, and in support this contention reliance has been placed on a decision of this Court in Ram Kuer V/s. Iqbal Narain Singh A.I.R. (34) 1947 ALL. 92.

(3.) Section 183, U, P. Tenancy Act, provides for suits by a tenant against his landholder or against a person who has been put in possession by the landholder. Ram Kuer V/s. Iqbal Narain Singh A.I.R. (34) 1947 ALL. 52, was such a case. In that case, plaintiff Mt. Ram Kuer had been dispossessed by an agent of the landlord, the Maharaja of Banaras, by means of a decree for ejectment obtained on the basis of non-payment of rent. Section 183 was, therefore, in terms applicable to the case and because relief could be had under Section 183, U.P. Tenancy Act, the civil Courts obviously had no jurisdiction to try the suit. It was laid down in that case that in determining the jurisdiction of the civil and revenue Court the Court has to see the pith and substance of the relief and not to its form and that the grounds upon which the relief is based are immaterial. Mt. Ram Kuer's suit was found to be a suit essentially for a declaration of the plaintiff's title as a co-tenant of the disputed land with another tenant and for restoration of possession to her as such. The pith and substance of the relief in the case before me is quite different from the pith and substance of the case in the ruling relied upon by the learned Counsel. This is essentially a suit to set aside an alienation made by a Hindu father. The plaintiff in this case has not been dispossessed either by the landholder or by any person who had been let in on behalf of the landholder. He has been dispossessed by a person who has been let into possession by his own father who does not happen to be a landlord but a tenant. In my opinion, Section 183 has no application to a such case. The suit was accordingly triable by the civil Court and the order of the lower appellate Court is correct