Kishen v. Ishri

Sir John Edge, C.J and Blair, J.:— The appellants are representatives of the plaintiff in the suit. The plaintiff brought his suit in a Court of Revenue under s. 93, cl. (o) of Act No. XII of 1881 to eject an occupancy tenant who was not a tenant at fixed rates. The tenant was one Ishri. The plaintiff relied for the maintenance of his suit on the fact that Ishri had, on the 4th August, 1881, mortgaged his occupancy holding to one Ganga Din, and that Ganga Din on the 21st December, 1888, had got a decree for foreclosure of his mortgage. After the suit had been instituted. Ganga Din, on his [224] own application, was made a party to the suit under s. 112(a) of Act XII of 1881. No amendment of the pleadings took place, but the suit proceeded against Ishri and Ganga Din. The Court of Revenue dismissed the suit on the ground of limitation, applying s. 94 of Act No. XII of 1881. The plaintiff appealed to the District Judge and he dismissed the appeal on the ground of limitation, applying the same section as that which has been applied by the Court of Revenue.

From the decree of the District Judge this appeal has been brought by the plaintiff. It is quite clear that, applying the principle of the Full Bench decision in Madho Lal v. Sheo Prasad Misr(1), the suit, apart altogether from any question of limitation, cannot be maintained as against Ishri. This appeal consequently, as against him, is dismissed. As to the position of Ganga Din, the main difficulty has arisen in this Court from the fact that no amendment of pleadings was made. It is quite clear, however, from the record what his case was. His case was that he, by reason of the mortgage and the decree of foreclosure, took title to the occupancy holding, and if not in possession was entitled to possession, and further that the limitation provided by s. 94 of Act No. XII of 1881 applied to his case. Now the suit originally, into which Ganga Din of his own motion intruded himself as a defendant, was one of ejectment i.e, a suit by the plaintiff claiming as a relief a decree for possession of the occupancy holding. By intruding himself into the suit, notwithstanding that there has been no amendment of the pleadings, Ganga Din must be taken to be maintaining his right, if any, under the mortgage and decree and his right to have possession of the occupancy holding. So far as Ganga Din is concerned, the suit must be regarded as a civil, suit. By reason of s. 9 of Act XII of 1881 no right of occupancy passed to him and consequently he could not, on the title alleged by him, be entitled to obtain or retain possession of the occupancy holding. If in possession, his possession, being without the consent of the plaintiff, would, so far as the plaintiff is concerned, be the possession [225] of a trespasser. He could obtain from Ishri no greater title than Ishri had. Ishri's title was that of an occupancy tenant who was not a tenant at fixed rates, and that title Ganga Din by reason of s. 9 could not obtain. He, consequently, as against the plaintiff, had no title to the possession of the occupancy holding, the plaintiff, being the zemindar landlord. That disposes of the question of title, subject only to the question of limitation. Now s. 94 of Act XII of 1881 provides only for a limitation with regard to the suits dealt with by that Act, and it does not in this case, so far as this suit is one between the plaintiff zemindar and Ganga Din, the trespasser, supersede the provisions of the Indian Limitation Act of 1877. So far as the suit between the plaintiff and Ganga Din is concerned, it happens that Ganga Din has intruded himself into a suit which was commenced in the Court of Revenue, but the suit as against him must be treated as a Civil suit. The question of jurisdiction is at this stage immaterial, because the appeal went before the district Judge, who had jurisdiction, whether the suit was commenced in the proper Court or not, i.e, he had jurisdiction whether the suit was commenced in the Revenue Court or in the Civil Court. So far as Ganga Din is concerned, the limitation is that provided by the Indian Limitation Act of 1877, and the suit as against him is within time within that Act. The decree which we pass as against Ganga Din is that the appeal be allowed with costs, and that Ganga Din has, as against the plaintiff, obtained no title to the possession of the occupancy holding, and that the plaintiff do have possession of the occupancy holding as against Ganga Din. The decree below will stand so far as Ishri is concerned, i.e, as a decree of dismissal.

Appeal allowed.