Mears, C.J and Ryves, J.:— The facts out of which this appeal arises are shortly as follows Lalji was an occupancy tenant of a holding in the village of Khajuri, of which the plaintiffs respondents are the zamindars.
Lalji died recently, and on his death, the defendants appellants applied for nutation of their names in the place of Lalji, as being entitled to succeed to his occupancy holding. While those proceedings were pending, this suit was brought in the Court of the Munsif for a declaration that the defendants were not the grandsons of Lalji. The pleadings will be examined in detail later on. One defence to be suit was that it was not cognizable by the Civil Court.
The Munsif held that he had jurisdiction, as the prayer was for a declaration only, and on the merits decreed the suit.
The defendants appealed and again objected to the jurisdiction of the Civil Court to entertain the suit. The District Judge upheld this contention, and dismissed the suit. The plaintiffs appealed to this Court, and a learned Judge of this Court allowed the appeal and sent the case back to the District Judge to try the appeal before him on the merits.
From that order, the defendants have brought this appeal under the Letters Patent.
After hearing full argument, we think the appeal must be allowed and the suit dismissed on the ground that it was not cognizable by the Civil Court.
This appeal raises the question of the conflict of jurisdiction between the Civil and the Revenue Courts in a particularly convenient form.
Section 167 of the Agra Tenancy Act provides that all suits…of the nature specified in the fourth schedule shall be heard and determined by the Revenue Courts and, except in the way of appeal as provided in the Act, “no Court other than a Revenue Court shall take cognizance of any dispute or matter in respect of which any such suit might be brought.”
In Ram Charitra Rai v. Jinsi Ahirin , (to which decision one member of this Court was a party) it was laid down that while it is necessary to guard against formulating any such general rule as that a suit for a declaration of legal status cannot be entertained by a Civil Court merely because such a suit may be brought in consequence of a dispute which originally arose between landlord and tenant, nevertheless an examination of the plaint in the light of the surrounding circumstances may show that the suit in fact of rends against the provisions of section 167. It was there pointed out that a plaint might be so drafted in which a mere declaration as to the existence of a valid marriage, or as here, of a valid adoption, might have been sought, in respect of which it could scarcely have been held that the jurisdiction of the Civil Court was ousted.
The ratio decidendi of that case was that in all such cases we must determine what was the real contest between the parties and what was the real object of the suit. And for this purpose we must examine the plaint with care. Two similar cases are Dori Lal v. Sardar Singh and Birham Khushal v. Sumera .
The plaint opens with the statement that Lalji was an occupancy tenant of the plaintiffs who are the zamindars of the village. He died “without leaving any son or other legal heirs” one and a half months before the suit. Thereupon, the defendants, who are described as the grandsons of Lalji's sister, made an application in the Revenue Courts on the 3rd of January, 1918 for the entry of their names as occupancy tenants in the place of the deceased Lalji. They asserted that Lalji executed & deed of adoption on the 11th of February, 1905 stating that he had adopted Govind as his son and that the defendants are the sons of Govind, who is also dead.
The plaint goes on to say that Lalji also made two wills in defendants' favour but that both are “legally null and void” and that the defendants have not acquired occupancy rights.
With regard to the adoption, it is stated that Lalji was a Gaur Brahman by caste, and thus could not legally adopt his sister's son. Other objections were taken to the adoption, culminating in the assertion that as a matter of fact it never took place. Govind died four years before suit if the lifetime of Lalji.
Then comes a very significant statement which really contains the kernel of the case, for the plaintiffs:—Paragraph 7. “The defendants are the grandsons of the sister of Lalji deceased, Their father, Govind, was not adopted by Lalji, and their possession over the occupancy holding of Lalji is simply that of non-occupancy tenants from year to year.”
The cause of action is said to have accrued on the 3rd of January, 1918 the date of defendants' application for mutation of names, and in the beginning of February, 1918, when the defendants refused to withdraw that application. This act is stated to be “prejudicial to the plaintiffs' rights” and hence the suit.
The only relief sought is “that it may be declared that Govind was not the adopted son of Lalji, and that the defendants are not the grandsons of Lalji.”
Now the plaintiffs admit that they are the landlords and that the defendants are in possession as their tenants, but only as non-occupancy tenants from year to year, and it seems fairly obvious from the plaint itself that the object of the suit is to get a declaration that will prevent the defendants from establishing their claim to succeed to Lalji's occupancy holding.
When we turn to the written statement, the matter is placed beyond all doubt.
The defendants say, in effect, that Lalji who had no son did adopt Govind, and that by a special custom of the brotherhood, the adoption of a sister's son was valid. That ever since the adoption which took place before 1905 (when the deed of adoption was executed), Lalji brought up Govind, got him married, and that Govind and his sons, the defendants, have all along been sharing in the cultivation of the occupancy holding and living with Lalji. After the death of Govind, Lalji executed the two wills in defendants' favour merely as a precaution, and the plaintiffs have brought this suit to deprive them of then occupancy holding. Lastly, it is pleaded that the dispute on only be decided by the Revenue Courts, and the claim for a declaration cannot be maintained, and the suit is not cognizable by the Civil Court.
Taking the pleadings together, it is admitted that the relationship of landlord and tenant subsists between the parties and that the tenancy is still existing. The only dispute is as to the nature, of that tenancy. Is it an occupancy tenancy, as the defendants claim, or a non-occupancy tenancy from year to year, as the plaintiffs assert?
The answer depends, according to the parties, on whether Lalji's alleged adoption is proved and is valid in law.
We must now turn to see whether any one of the suits specified in the fourth schedule to the Agra Tenancy Act might be brought in respect of the dispute between the parties; because if there is an appropriate suit provided in the Revenue Court, then the cognizance of the Civil Courts is ousted.
It seems to us that a suit by either party would lie under section 95(a) and (b). A suit under this section in included in Group C, item No. 34 in the fourth schedule and, therefore, the object of the present suit is either to forestall a suit under section 95 at the instance of the defendants for a declaration that they are occupancy tenants of the holding, or to strengthen the hands of the plaintiffs in the event of it being necessary for them to bring a similar suit for a declaration that the defendants are non-occupancy tenants, or else to enable the plaintiffs to bring a suit for ejectment under section 58 on the ground that the defendants are non-occupancy tenants. The suit being of this nature, we are of opinion that it is not cognizable by the Civil Court.
It was, however, argued by the learned advocate for the plaintiffs, that the question of jurisdiction was purely academic and that whether the original court had or had not jurisdiction, once the matter went on appeal to the District Judge, he and this Court have jurisdiction to decide it, having regard to the provisions of sections 196 and 197 of the Act. This view seems to have commended itself to the learned Judge of this Court. In his judgment he says:—
“It is clear that no Revenue Court has jurisdiction to pronounce a final decision upon a question of status or adoption. If the decision of the lower appellate court is maintained and the plaintiffs are referred to a suit under section 95 of the Tenancy Act in the Revenue Courts, the question of adoption will necessarily come up for disposal. It is only on the basis of an adoption that the defendants in any circumstances could be held to be entitled to occupancy right in this holding.
I am unable, therefore, to see why in the present case, this suit should not be entertained and disposed of by a Civil Court, which admittedly is he only Court which can come to a final decision upon the question of adoption, and although the purpose of the plaintiffs may be eventually to obtain a decision from the Revenue Court that the defendants are merely tenants-at-will and not occupancy tenants, I fail to see why having asked the Civil Court for a relief which the Civil Court alone is competent to give, the Civil Court should decline jurisdiction.
The learned Judge's decision stems largely to be based on the assumption that the Civil Court alone could decide the question of adoption. In this view we are unable to agree.
We have, however, to consider whether sections 196 and, 197 can apply. Section 197 only applies, if under section 196 the appeal lies to the District Judge or High Court.
In our opinion the appropriate suit for the plaintiffs to have brought was for a declaration under section 95 of the Tenancy Act. Turning to group C of the fourth schedule, we find such a suit (item No. 34) is triable by an Assistant Collector of the first class, and the appeal lies to the Revenue Court and not to the District Judge or High Court.
Section 197, therefore, has no application.
The result is we allow the appeal, set aside the order of remand made by this Court, and restore that of the District Judge dismissing the suit.
The appellants will be entitled to their costs throughout.
Appeal allowed.