SHAMSHER Vs. GAYA

JUDGEMENT

(1.) The process, no doubt, is very cumbersome, but I am afraid that in the present civil suit the plaintiff is only entitled to a declaration, and not a decree for possession.

(2.) The plaintiff Gaya sued the defendant Shamsher in the Revenue Court for recovery of arrears of rent, and the defence of the defendant Shamsher was that he paid the rent in good faith to one Ram Singh. The Revenue Court decided in favour of Shamsher and dismissed the suit of Gaya. Though Gaya is not a zemindar, I think the provisions of a. 198, Tenancy Act, will apply. When in any suit against a tenant under the Act the defendant pleads that the relation of land- holder and tenant does not exist between the plaintiff and himself on the ground that he actually and in good faith pays the rent of his holding to some third person, the question of such payment of the rent to such third person shall be inquired into, and if the question is decided in favour of the defendant, the suit shall be dismissed. This was what happened in the Revenue Court. In pursuance of that decision the provisions of the second clause of Section 198 will have operation. That clause runs as follows: The decision of the Court on such question shall not affect the right of any person entitled to the rent of the holding to establish his title by the suit in the Civil Court.

(3.) A suit for a declaration of title in the Civil Court is, therefore, the only remedy provided for on failure of the plaintiff Gaya to recover rent from the defendant Shamsher. Both the subordinate Courts have held that the tenancy is not mortgaged to Ram Singh who claims to be a mortgagee. Gaya, therefore, is entitled to recover rent from Shamsher. Such a declaratory decree can be granted in the present suit. On the basis of that decree it will be open to the plaintiff to seek his remedy for ejectment in the Revenue Court once Ram Singh's claim has been removed out of his way.