Ganga v. Buddhi Ram — 1964 DIGILAW 400 (ALL)

ORDER D.S. Mathur, J. - This is a revision u/s 115, CPC by Ganga and 2 others, Defendants, against the order dated 15.7.1963 of the Additional Civil Judge of Gorakhpur, allowing the appeal of Buddhi Ram, Plaintiff, and holding that the present suit was cognizable by the civil Court. The learned Civil Judge thus set aside the order of the Munsif returning the plaint for presentation to a competent court. 2. In the plaint the Plaintiff had claimed himself to be a tenant of the disputed plots, which lie within the municipal limits of Gorakhpur, a lani to which the provisions of the UPZA and LR Act did not apply and which was still governed by the old tenancy law, namely UP Tenancy Act, 1930. His case further was that the Defendants, who had nothing to do with the lani were trying to interfere with his possession. He consequently prayed for a perpetual injunction to restrain them from interfering with his possession. Such a suit would not fall within the scope of Section 59 of the UP Tenancy Act if the Defendants did not hold the land through the land-holder, and hence can be taken cognizance of by the civil court. But when the Defendants put in appearance and filed their written statement, they claimed to be lawful tenants of the land and by implication claimed to hold the land through the landholder. The Munsif framed issues, one of which was whether the civil court had the jurisdiction to try the suit. He recorded the evidence of the parties, but without recording a finding on material questions of fact involved, considered the issue of jurisdiction and decided it against the Plaintiff. The Munsif was of the opinion that the suit was triable by the revenue court, and not by the civil court, and consequently directed the return of the plaint for presentation to a competent court. 3. The Plaintiff went up in appeal before the District Judge and the Additional Civil Judge hearing the appeal recorded a contrary finding. He also did not comment on the evidence adduced by the parties and did not record a finding on the material question whether the Defendants were or were not claiming the land through the landholder. 4. 3. The Plaintiff went up in appeal before the District Judge and the Additional Civil Judge hearing the appeal recorded a contrary finding. He also did not comment on the evidence adduced by the parties and did not record a finding on the material question whether the Defendants were or were not claiming the land through the landholder. 4. Section 242 of the UP Tenancy Act bars the jurisdiction of the civil court to entertain and decide suits of the nature specified in the Fourth Schedule of the Act. The section also makes it clear that the civil court cannot take cognizance of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. The Plaintiff could be granted relief of a perpetual injunction only if he was entitled to remain in possession of the land. The civil court would thus not have the jurisdiction to entertain the present suit if a suit for declaration was exclusively cognizable by the revenue court 5. The material point for consideration, therefore, is whether the Plaintiff could be granted a declaration with regard to his rights in the land by the revenue court, and if so, the present suit, though for a perpetual injunction, shall not be cognizable by the civil court, and it shall be necessary for the Plaintiff to seek his remedy before the revenue court irrespective of whether he can in such a suit obtain a decree for perpetual injunction or not. 6. Section 59 of the UP Tenancy Act governs declaratory suits. Sub-section (1) thereof contemplates a suit by a person claiming to be a tenant or a joint tenant against the land holder for declaration that he is a tenant or for a declaration of his share in such joint tenancy. The suit for declaration is thus between a person claiming to be a tenant or joint tenant and a landholder; but under Sub-section (2) any person claiming to hold through the landholder, whether as a tenant or otherwise, has to be joined as a party. The suit for declaration is thus between a person claiming to be a tenant or joint tenant and a landholder; but under Sub-section (2) any person claiming to hold through the landholder, whether as a tenant or otherwise, has to be joined as a party. To put it differently, where the Plaintiff and also the rival claimant claim through the landholder and dispute is as to who is entitled to remain in possession or to secure possession over the agricultural holding, necessary declaration can be granted by the revenue court, though in a suit in which land holder is also a party. In the instant case, Buddhi Ram, Plaintiff, has not impleaded the land-holder, but in view of Section 242 of the UP Tenancy Act, the omission to implead the landholder shall not oust the revenue court of its jurisdiction and by this mere omission the civil court cannot acquire jurisdiction which did not vest in it. We shall have to go to the substance of the case, and not the conduct of the Plaintiff in not impleading a necessary party. 7. Whether the civil court has or has not the jurisdiction to entertain the present suit, shall thus be determined irrespective of whether the landholder has or has not been impleaded in the suit. In the circumstances, the material question which shall determine the jurisdiction of the civil court is whether the Defendants are claiming to hold the land through the landholder, whether as a tenant or otherwise. The term "land holder" shall include not only the land holder on the date of the suit, but his predecessors in title also. Consequently, if the ancestors of the predecessors-in-title of the Defendants had obtained the land from the then land-holder and, in the eye of law, they are holding the land through him, the case of the Defendants would fall among those claiming to hold the land through the land-holder as contemplated by Section 59 (2) of the UP Tenancy Act. 8. After the evidence of the parties had been recorded it was necessary for the subordinate courts to record a finding on the material question, whether the Defendants were claiming to hold the land through the landholder. 8. After the evidence of the parties had been recorded it was necessary for the subordinate courts to record a finding on the material question, whether the Defendants were claiming to hold the land through the landholder. If this question was answered in the affirmative, the Plaintiff could obtain a declaratory relief from the revenue court and as he could obtain a relief from the revenue court, his suit, though for perpetual injunction, would not have been cognizable by the civil court, and a suit if filed before the civil court would have had to be returned for presentation before the revenue court; but if the question was answered in the negative, the Defendants would not be covered by Sub-section (2) of Section 59 and the declaration if granted would not be u/s 59 of the UP Tenancy Act, but under the ordinary law, and such a declaratory suit and also a suit for perpetual injunction would be cognizable by the civil court. 9. The learned Advocate for the Plaintiff-opposite party has placed great reliance upon two earlier decisions of this Court but none of them are helpful to him. 10. The first point contended by the learned Advocate is that the jurisdiction of the Court is determined by the assertions contained in the plaint, and not the pleas raised by the Defendants in their written statement. It is suggested that even if the defence plea is eventually accepted the jurisdiction of the Court shall be determined by what was alleged by the Plaintiff, and not by the finding which the Court may record on facts pertaining to the question of jurisdiction. Reliance was placed upon the Full Bench decision in Ananti v. Chhannu and Orthers (1) (1930. ALJR 256). That was a case where the court had not held an inquiry as to the truth or otherwise of the pleadings in the written statement. The words "without an inquiry as to its truth or otherwise" make it clear that the Munsif had referred two questions to the High Court soon alter the filing of the written statement, and not after recording the evidence of the parties on points which could determine the jurisdiction of the Court. The words "without an inquiry as to its truth or otherwise" make it clear that the Munsif had referred two questions to the High Court soon alter the filing of the written statement, and not after recording the evidence of the parties on points which could determine the jurisdiction of the Court. The Full Bench case thus does not lay down the law that irrespective of the finding recorded by the Court, it must decide the issue of jurisdiction on the basis of the pleadings in the plaint. In fact there are many decisions of this Court laying down that the Plaintiff cannot be permitted to take advantage of omissions in his pleadings and before he seeks remedy he should ascertain what claim the Defendant is laying and should give expression to the Defendant's plea, directly or by implication, in the plaint. It appears unnecessary to make further comments on this point. It can simply be observed that the initial jurisdiction of the Court is determined by the assertions contained in the plaint; but after the Defendant puts in appearance and raises pleas in his written statement, pleas which are admitted by the Plaintiff, the Court can determine the question of jurisdiction on the basis of the admitted facts. But if the facts are in dispute, it shall be necessary for the Court to record the evidence of the parties, and then determine after recording a finding on all the material questions of law and fact whether it has the jurisdiction to take cognizance of the suit. If it finds that the suit is not maintainable before the civil court, it can return the plaint even after the recording of the evidence of the parties, for presentation before a competent court. 11. The learned Advocate also relied upon the case of Pheru Ahir and Anr v. Mangru Gandaria and Orthers (2) ( 1950 AWR 573 ) in support of his contention that the jurisdiction of the Court was determined by the allegations in the plaint. Certain observations made therein were also relied upon in support of the other contention that the present Plaintiff could not obtain a declaration u/s 59 of the UP Tenancy Act. On the first point, I need not make any further comments as the facts of this case appear to be similar to those of the Full Bench case already referred to above. On the first point, I need not make any further comments as the facts of this case appear to be similar to those of the Full Bench case already referred to above. There is nothing in the report to suggest that the question of jurisdiction was decided after recording the evidence of the parties. It can, therefore, be that in this case also the question of jurisdiction was decided on the basis of the pleadings alone, namely, the plaint and the written statement, without any further inquiry. The observations with regard to Section 59 of the UP Tenancy Act are, I must say, obiter dicta, and, in any case, such observations were made without any court of law having recorded a finding as to whether the Defendants were claiming to hold the land through the landholder. It appears that the Defendants had merely filed their written statement and thereafter the question of jurisdiction was disposed of by the subordinate courts. Allegations made in the written statement could not be treated as admissions of the Plaintiff, nor could the suit be decided on such pleas alone. The recording of evidence of the parties was necessary and when the evidence was not recorded, the written statement could be utilized merely to know what the claim of the Defendants was, and not what the actual facts were. In other words, if the Courts of law find that the Defendants were claiming to hold the land through the landholder, the above case of Pheru Ahir and Anr. v. Mangru Gandaria and Orthers (2) (supra) shall no longer be applicable. 12. Considering that both the lower courts had not recorded a finding on the material questions involved before deciding the issue of jurisdiction, it is necessary that their orders be set aside and the suit remanded to the trial court for a fresh hearing in accordance with the law. 13. The revision is hereby allowed, and the orders of both the lower courts are set aside. At the same time, the suit is remanded to the trial court for a fresh hearing in accordance with the law. Upto date costs of all the Courts shall abide the final decision of the suit. The stay order is vacated.