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1913 DIGILAW 158 (ALL)

Nakchedi Ahir v. Ram Das Rai

1913-03-26

RAFIQ

body1913
JUDGMENT : RAFIQ, J. The plaintiffs respondents 1 to 5, sued in the court of the Munsif of Mohamadabad to recover possession of two bighas 2 biswas out of holdings 46/5 and 56/5 on the allegation that they were tenants of the said land from which they had been wrongfully dispossessed by the defendants appellants, a year prior to the institution of the suit. Rs. 50 were also claimed by way of damages, as price of crops forcibly taken away from the said land by the defendants appellants. The defendant respondent No. 6, one of the zamindars of the village, was also impleaded as a defendant in the case. He did not oppose the claim. The defendants appellants alone resisted it. They urged in defence that the land in suit had accreted to their occupancy holding of by alluvion and that they alone were entitled to the said land. It was further said, that the plaintiffs had not been in possession within limitation and that the crops in respect of which damages were claimed had been sown by and belonged to the defendants appellants. A further objection regarding jurisdiction of the court to entertain the suit was also taken. It was stated in the written statement that the zamindar of the village had brought a suit against some of the plaintiffs in the Revenue Court under section 58 of the Tenancy Act, for the ejectment of the latter from the land in suit. Nakchedi, defendant appellant intervened, and at his request was made a defendant in the case. The claim of the zamindar was dismissed on the ground that Nakchedi was in possession of a part of the land in suit. No appeal was preferred from the decree of the Revenue Court, which became final, and hence the present suit was not cognizable by a Civil Court. The learned Munsif held that the plaintiffs respondents 1 to 5 had not proved their possession within limitation, that the defendants appellants had acquired the land in suit by alluvial accretion and that the crops grown on that land were grown by and belonged to the defendants appellants. The claim was accordingly dismissed. On appeal the learned District Judge reversed the decree of the first court. The defendants appellants have come up in second appeal to this Court. Three points are urged in support of their appeal. The claim was accordingly dismissed. On appeal the learned District Judge reversed the decree of the first court. The defendants appellants have come up in second appeal to this Court. Three points are urged in support of their appeal. It is argued that the suit of the plaintiffs respondents 1 to 5 is not maintainable, inasmuch as they brought the suit against the persons who are said to have dispossessed them and against one of the zamindars also. The fact that one of the zamindars had been made a party to the suit ousted the jurisdiction of the Civil Court. This objection was not taken in the lower courts and is urged for the first time here. It is not quite clear how the mere fact of the zamindar being a party to the suit deprived the civil court of jurisdiction to decide the case. In the present case the plaintiffs respondents 1-5 are not seeking to have the nature of their tenancy determined. They have admitted in the plaint that they are tenants. But they seek to recover possession of their holding, from which they have been dispossessed by the defendants appellants, who set up a right to that holding under the right of alluvial accretion. I do not think that this objection for the appellants has any force and I reject it. 2. The second point for the appellants also relates to the question of jurisdiction. It is said that the decision of the Revenue Court dated March 27, 1911, determined the status of the parties with regard to the land in suit and that the present claim is an attempt to get round a decree of the Revenue Court. On reference to the Revenue Court judgment of March 27, 1911, it appears that one of the Zamindars of the village brought a suit against Anmol Rai and others for their ejectment from land No. 56/5 on the allegation that the defendants in that suit, were mere tenants at will. Nakchedi, the defendant appellant No. 1 in the present case, intervened on the ground that a part of plot 56/5 had accreted to his occupancy holding by alluvion and that he was entitled to retain it. Nakchedi, the defendant appellant No. 1 in the present case, intervened on the ground that a part of plot 56/5 had accreted to his occupancy holding by alluvion and that he was entitled to retain it. Anmol and others wanted to enter into a compromise with the Zamindar, but Nakchedi stood out and on a report from the Tahsildar it was found that he (Nakchedi) was in possession of part of plot. The Assistant Collector accepted the report of the Tahisldar and dismissed the Zamindar's suit on the ground that Nakchedi had not been sued originally as a defendant but had been brought on the record at his own request. It is clear from those facts that the Assistant Collector did not decide the rights of any party by the judgment of March 27, 1911, As has already been said above, the plaintiffs in this case do not seek to have the nature of their tenancy determined, they want possession of the land from which they have been unlawfully dispossessed. I do not see how the judgment of March 27 1911, deprives the Civil Courts of the jurisdiction to entertain the present suit. 3. The last argument for the appellant is that the evidence on the record, satisfactorily proves the usage of alluvial accretion. It is useless to discuss that evidence in the face of the finding of the learned Judge that the plaintiffs respondents r-5 have been in possession of the land in suit for fifteen or sixteen years. They have therefore a right to be maintained in that possession. The appeal therefore fails and is dismissed with costs.