NAND KISHORE Vs. KHILLAN SINGH

JUDGEMENT

(1.) This is a reference made by the learned Civil Judge of Bulandshahr under Section 289 (2), U.P. Tenancy Act XVIl

(17.) of 1939.

(2.) The facts giving rise to the reference are, shortly stated, as follows: Khillan and Jhamman, defendants in the suit which has given rise to the reference mortgaged their share in certain Khewats usufructuarily to one Ganga Dayal on 5 March 1928 and were declared exproprietary tenants of the sir plots which are the subject. matter of the present suit. Rent was assessed in due course. It was not paid and consequently Khillan and Jhamman were ejected under Section 79 of the old Tenancy Act. Ganga Dayal, the mortgagee obtained delivery of possession on 22 January, 1932. Ganga Dayal appears to have been recorded as in possession of the plots as a khudkasht-holder from 1341 Fasli to 1345 Fasli. in 1936 Khillan and Jhamman made an application under the U.P. Encumbered Estates Act and showed this property as their property. Ganga Dayal, the mortgagee, proved his mortgage in proceedings under the Encumbered Estates Act and, in due course, a decree under Section 14 of that Act was passed in his favour. The result was that the mortgage debt was wiped off and Khillan and Jhamman were put in possession of the mortgaged property under Section 33, Encumbered Estates Act by the Collector. This was on 15 May 1941. Khillan and Jhamman along with one Ram Chander, defendant 3, entered into actual possession of the plots in dispute in the beginning of 1349 Fasli. Meanwhile Nand Kishore, brother of Ganga Dayal, mortgagee, purchased shares in the khewats from other cosharers, namely Jagannath and Bhagwant and thus became a proprietor in the khewats. Nand Kishore thereafter brought the present suit against Khillan, Jhamman and Ram Chander for possession in the revenue Courts making his claim, alternatively, under Secs.180 and 183, U.P. Tenancy Act. He claimed in the first instance that he was a proprietor in the khewats and was, in fact, in possession of the plots in suit as khudkasht. holder and that the defendants respondents had dispossessed him wrongfully. In the alternative, he alleged that he held as a tenant from his brother, Ganga Dayal, the mortgagee and that he was entitled to possession as a tenant. Later on the claim based upon tenancy right was given up by him. In defence, Ram Chander filed one written statement and Khillan and Jhamman another. Khillan and Jhamman did not specifically deny the plaintiff's proprietary right to the plots in dispute although they seriously contested his right of possession of the plots as khudkasht. They stated that they were themselves the khudkasht-holders of the plots in dispute. It may be noted that the proprietary title of Khillan and Jhamman themselves was not denied by the plaintiff. He, indeed, admitted it in Para. 1 of the plaint. The position, therefore, on the pleadings was that the proprietary title of the defendants was admitted by both the parties and the only question in dispute was whether the plaintiff or the defendants were entitled to possession of the plots as their khud-kasht. The issue raised by the revenue Court upon these pleadings was: Whether the land in suit is khudkasht of defendants 1 and 2? In our opinion, this was a perfectly correct issue. Khillan and Jhamman, however, presented an application for the amendment of this issue. It was, in consequence, re-modelled by the revenue Court by an order, dated 26 May 1942, as follows: Whether defendants 1 and 2 are. in proprietary possession of the land in suit? Since the word proprietary was used in this issue, the revenue Court referred it to the civil Court for decision. The Munsif amended it further and framed the following issue: Whether defendants 1 and 2 are proprietors of the land in suit? As the proprietary title of defendants 1 and 2 was never denied by the plaintiff, he admitted it before the Munsif; the result was that the Munsif decided that issue in the affirmative and sent the record back to the revenue Court. The revenue Court then went into the question of the right of possession over the plots in suit and held that the defendants respondents were entitled to possession and dismissed the suit. The plaintiff then went up in appeal to the learned Commissioner. The additional Commissioner before whom the case came up for hearing held that since a question of proprietary title was raised and decided by the civil Court, the appeal should have been filed in the Court of the District Judge. On this view, he returned the memorandum of appeal for presentation to the proper Court. The appeal was, thereupon, taken to the learned District Judge who apparently transferred it to the learned Civil Judge. The learned Civil Judge has taken the view that as no question of proprietary title really arose in the case upon pleadings of the parties, that was not a case in which it could be said that a question of proprietary title was decided by the civil Court. He pointed out that the proprietary title of defendants 1 and 2 was admitted by the plaintiff in the plaint itself and that it was further admitted before the Munsif when the issue was before him for trial. He has, therefore, referred the matter to this Court under Section 289 (2), U.P. Tenancy Act, 1939.