Posted On by &filed under Allahabad High Court, High Court.


Allahabad High Court
Udit Tiwari vs Bihari Pande on 21 July, 1913
Equivalent citations: (1913) ILR 35 All 521
Author: T A Piggott
Bench: Tudball, Piggott


JUDGMENT

Tudball and Piggott, JJ.

1. This is a second appeal by the plaintiff, whoso suit for recovery of possession was decreed by an Assistant Collector of the Gorakhpur district, but has been dismissed by the District Judge of Gorakhpur on appeal. The question is whether an appeal lay, under the circumstances, to the court of the District Judge. The plaintiff alleged that the land in suit was his occupancy holding and that he had sub-let it to the defendant, whom he now desires to eject by a suit under the provisions of the Agra Tenancy Act for that purpose. The defendant replied that he was a co-sharer in the mahal and held the land in suit us his khud-kasht. We cannot see that the defendant’s title as proprietor was ever denied by the plaintiff. Certainly the latter never claimed to be himself the proprietor of the land in dispute or to have any right in the same, other than the right of an occupancy tenant. Under the circumstances it appears to us impossible to say that a question of proprietary title was raised by the pleadings. We have been referred in argument to the provisions of Section 199 of the Tenancy Act. According to that section whore, in a suit like the present, a question of proprietary title is raised by the defendant, the Revenue Court may either determine the question of title itself or require the defendant to institute a suit in the Civil Court for the determination of the same. If the Assistant Collector had begun by holding that the present was a case to which the provisions of Section 199 aforesaid applied, and had required the defendant to institute a suit in the Civil Court, that suit would have been one for a declaration that the defendant was the proprietor, or one of the proprietors, of the land in suit, in the sense of being a co-sharer in the mahal to which this land appertains. Such a suit, so far as we can gather, would have been met by the present plaintiff with a plea that he never had denied, or was disposed to deny, the defendant’s proprietary title. There is a ruling of this Court which is in favour of the respondent in this case, namely, Dal Chand v. Shamla (1905) 2 A.L.J., 176. With all respect to the learned Judges who decided that case, it seems to us that they failed to distinguish between the case of pleadings by which a question of proprietary title is raised and that of pleadings which merely raise a question as to the nature of the defendant’s possession. In the present case, what the plaintiff had to prove in order to succeed was that he, as occupancy tenant, let the land in suit to the defendant, and even though the latter be a co-sharer in the mahal to which the land appertains or even the sole proprietor of that mahal, there would be nothing illegal in such a contract of tenancy as was alleged by the plaintiff. The point thus raised was one the decision of which is within the province of the Revenue Court, and, as we are unable to hold that any question of proprietary title was raised before the Assistant Collector, was determined by that court or was in issue before the District Judge, we must hold that no appeal lay in this case to the latter court. We, therefore, accept this appeal, set aside the order and decree of the lower appellate court and direct the District Judge of Gorakhpur in lieu thereof, to return the petition of appeal presented to his court for presentation to the proper court. The appellant will get his costs in this Court and in the lower appellate court.


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