BHAIRO KUMAR Vs. MARKANDE GIR

JUDGEMENT

(1.) This is a reference by the District Judge of Ghazipur under Section 267(2), Agra Tenancy Act. The reference has been made in connexion with an appeal pending in his Court. The suit had been dismissed by a Revenue Court and the appeal had been first filed by the plaintiff in the Commissioner's Court. The defendant there raised a preliminary objection and said that the appeal ought to be returned for presentation to the Civil Court, and the Commissioner upheld the preliminary objection and said that "the proper forum of the appeal was the District Judge's Court." The appeal thus came to the District Judge and curiously enough the defendant again raised a preliminary objection and said that the appeal lay to the Commissioner. This is an inconsistent attitude adopted by the defendant but this has very little bearing on the reference except perhaps on a question of costs, and we have to decide the reference as made by the learned District Judge.

(2.) The facts may now be stated. The plaintiff alleging himself to be a landholder of curtain plots sued the defendants under Section 44, Agra Tenancy Act. Defendant 1 was mud to be a trespasser and defendants 2 to 5 wore said to be in possession of the land through defendant 1. The case of the defendant 1 was that he was the heir of one Mewa Gir who held the land under a perpetual lease from the zamindar of the 1 aiding and the case of defendants 2 to 5 was that they were in possession through defendant 1. The learned Assistant Collector held that defendant 1 was an heir of Mewa Gir, that Mewa Gir was a permanent; lessee of the holding in question and therefore defendant 1 could not be treated as a trespasser and the plaintiff's suit was there, fore dismissed.

(3.) The plaintiff in appeal once again raised the question that the defendant was a trespasser and was not a permanent lessee. What we have got to decide is whether the appeal lies to the District Judge or to the Commissioner. The suit was a suit under Section 44, Agra Tenancy Act and is mentioned at serial No. 2 in group B of Schedule 4, Agra Tenancy Act. It is provided there that the suit is triable by an Assistant Collector of the First Class and an appeal shall ordinarily lie to the Commissioner. Appeals lie to the District Judge under Section 271, Agra Tenancy Act, or under Section 242-(1) or 242(3), Agra Tenancy Act. It is conceded that Section 271, Agra Tenancy Act, has no application because no issue was referred by the Revenue Court to the Civil Court. Section 242(1) has also no application and the only relevant provision of law is Section 242(3)(a). Under that provision an appeal shall lie to the District Judge in all suits except suits under Ch. 11, in which a question of proprietary right has been in issue between the parties claiming such right in the Court of first instance, and is in issue in the appeal.