JOHARI MAL Vs. BALMAKUND

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff appellants in the Court of the Munsif of Khurja for recovery of Rs. 1,600, being the value of the crops which the defendants first party (defendants 1 and 2) are alleged to have misappropriated. Defendant 1 is the landlord of the holding of which one Lahori is the occupancy tenant. Plaintiff 1 (Johari Mal) is the sub-tenant holding it from the latter. Plaintiff 2 and defendant second party (defendants 3 and 4) cultivated the land in 1332F. under a batai arrangement with plaintiff 1. Rent having fallen in arrears in 1332F., the defendant 1 distrained the rabi crops on 19 March 1925, and appointed his servant, defendant 2, as the shehna. The plaintiffs case is that on 7 April 1925, the crops were taken away by the defendants first party, who misappropriated the same, and that sometime afterwards defendant 1 obtained a decree for arrears of rent which the plaintiff 1 had to satisfy to avoid a threatened arrest in execution of that decree. It is also mentioned in the plaint that plaintiff 1 filed a complaint in the criminal Court, presumably, charging the defendants first party with the offence of criminal misappropriation; but it was unsuccessful. The defence so far as it is material to notice was that plaintiff 2 and the defendants second party in collusion with plaintiff 1, dishonestly carried away the crops in spite of distraint, that the suit is cognizable only by the revenue Court and that it is barred by limitation. The suit has been thrown out by both the lower Courts on the ground that it is within the exclusive jurisdiction of the revenue Court. The plaintiffs appeal to this Court.

(2.) It should be noticed that the lower Courts dismissed the suit instead of returning the plaint for presentation to the revenue Court, as should have been done. The reason assigned by the lower appellate Court for this course is that the suit, if instituted in a revenue Court, would be time barred. If the civil Court has no jurisdiction to entertain the suit, it has none to decide the question of limitation, nor is it open to the civil Court to decide the question of limitation for the revenue Court in anticipation. The plaint should have been returned for presentation to the proper Court, leaving it to the plaintiffs to present it before the revenue Court or not, as they may be advised. The order of the lower Court must be modified to that extent in any view of the case.

(3.) On the main question arising between the parties, viz., whether the civil Court has jurisdiction to entertain a suit of this character, it cannot be disputed that a civil Court has such jurisdiction, unless it is excluded by some rule of law. The lower Courts have held that the present suit is one of those which are declared by Section 167 read with Sen. 4 (6) and Section 146, Tenancy Act 2 of 1901 to be exclusively cognizable by the revenue Court. If it is a suit of the description given in Section 146, there can be no doubt that the Courts below were right. Bearing in mind the allegations contained in the plaint which attribute to the defendants first party a criminal misappropriation of the crops-I interpret it in that sense-it will be found that the suit is not within the purview of Section 146 That section runs as follows: "If any person under colour of this Act distraints or sells, or causes to be sold, any property otherwise than according to the provisions of this Act, or if any distrained property is lost,, damaged or destroyed by reason of the distrained not having taken proper precautions for the keeping and preservation thereof, or if the distraint is not immediately withdrawn when it is required to be withdrawn by any provisions of this Act, the owner of the property may institute a suit against the distrainer for compensation for any injury which he has thereby sustained. If the distrainer is an agent or servant, his principal may be joined as a defendant in the suit.