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Allahabad High Court
Dalip Rai vs Deoki Rai, Sukhdeo Rai And Jokhu … on 22 June, 1898
Equivalent citations: (1898) ILR 20 All 471
Author: Blair
Bench: Blair


Blair, J.

1. It is needless to recapitulate the admitted facts of this case, The plaintiff acquired title from a person who had resumed the land theretofore assigned for the support of chaukidars. Originally this plaintiff and the plaintiffs in the two connected cases held equal shares in the plot in question. They and the other co-sharers subsequently partitioned the land, and each became possessed in severalty of his own plot. The plaintiffs sue for possession each of his own plot on the allegation that the defendants are mere trespassers. The defendant alleges in his defence that he was, at the times of the dispossession alleged against him by the plaintiffs, the tenant of the plot in suit. Numerous collateral and subsidiary issues were raised, with which it seems unnecessary to deal in deciding these second appeals. The suits of the plaintiffs were dismissed in the Court of First Instance on the finding that the defendant was a tenant. The plaintiffs appealed, and in the Lower Appellate Court it was found that the defendant had been a tenant up to some time in 1892, when he was wrongfully dispossessed by the present plaintiffs; but that inasmuch as he had not availed himself of the remedy provided by law in Clause (n) of Section 95 of Act No. XII of 1881 within the period limited by Section 96 of that Act, he had lost his title as well as his remedy. It seems to me that that judgment is sound. Section 95 of Act No. XII of 1881 provides that the Revenue Courts only shall have jurisdiction to deal with the subjects and matters of the nature for which applications are prescribed as the proper remedy in that section. The section does not provide merely that no plaintiff may bring a suit on a subject or matter in relation to which one of such applications might be made, but that the Civil Court shall not “take cognizance of any dispute or matter” upon which an application of such a nature might have been made. The defendant here is setting up an existing tenancy in himself, which, if it did exist, would entitle him to recover possession and to continue in possession, up to and at the time when he himself forcibly dispossessed the plaintiffs. In other words, it Is contended that he might lie by and neglect to take the steps provided by law within the time limited by law to recover the possession from which he had been wrongfully ousted and might by his own laches oust the jurisdiction of the Revenue Court and set up the jurisdiction of the Civil Court in relation to a matter which, if the subject of contention, could have been brought only in the Revenue Court within a period of six months. That would be the result of allowing him to set up in a Civil Court his title as a tenant in answer to a charge of trespass after the expiration of that period. It seems to me that, apart from the wording of Section 95 of the Bent Act, it was intended that the landlord should not be liable for an indefinite time to the dispossession, perhaps, of some tenants whom he had been induced to let in as tenants, and who perhaps might have incurred heavy expenses, in the belief that the excluded tenant had by declining to avail himself of the remedy provided by law manifested his intention of abandoning his tenancy. That disposes of the one question in this appeal. There is a secondary one, namely, that of res judicata into which I decline to allow the appellant to enter. It was expressly stated by the Judge in the Lower Appellate Court that that point and another or others were not pressed on him. It seems to me that it is not open to a litigant to practically abandon a portion of his contention in one Court and then at his convenience to resuscitate it in another. The effect is that these appeals will be dismissed with costs.

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