Inayat-Un-Nissa v. Salim-Un-Nissa

1. The point of law raised by this second appeal is whether a suit by one person claiming to be the occupancy tenant of a certain holding against another person also claiming to be the occupancy tenant of the same holding, in which the relief sought is a declaration of the plaintiff's title or in the alternative recovery of possession, where the zemindar to whom the rent of the holding is payable is no party, is maintainable in a Civil Court. Sitting singly we have both of us been disposed to take the same view on this controverted point as did another learned Judge of this Court, on the strength of whose reported decision the lower Appellate Court has dismissed the suit.

2. We find, however, that so far as reported decisions of two Judges of this Court go, there is a strong consensus of opinion the other way. We may refer to the cases of Bhup v. Ram Lal (1) and Kanhi Ram v. Durga Prasad (2). We think it better that there should be uniformity of decision upon a question of this sort; and whatever our personal opinion regarding this point of law may be, we are satisfied that we should, sitting as a Bench, follow the trend of authority in this Court. We accordingly allow this appeal, set aside the decision of the lower Appellate Court and, as that Court has dismissed the suit upon a preliminary point, we return the case to the said Court with directions to restore the appeal to the file of pending appeals and dispose of it according to law. Costs of this appeal will abide the event.

3. Appeal allowed;

4. Case returned.