GOVIND PERSHAD Vs. KANDHAI SINGH

JUDGEMENT

(1.) This is a second appeal by a plaintiff against, a decree of the lower appellate Court finding that the suit of the plaintiff lies in the Revenue Court. The plaintiff filed a suit alleging that defendants 5 to 7 were occupancy tenants and that they had executed a registered sub-lease on 7th) July 1928 for a term of five years in favour of the plaintiff and put; him in possession, and that defendants 1 to 4, who were trespassers, had interfered with his possession. The plaint was filed on 20th December 1928. The defence was that the occupancy tenants had abandoned their holding and that defendants 2 to 4 were zamindars and defendant 4 was a lambardar and that the suit lay in the Revenue Court. On the question of fact the lower appellate Court has found that defendants 2 to 4 are zamindars and defendant 4 is a lambardar. On this finding it held that the suit lay in the Revenue Court. On the strength of a ruling reported in Shyam Lal V/s. Hira Nath 1934 All 685 learned Counsel for the appellant-plaintiff argues that, the suit lay in the civil Court. Secs.99 and 121, Agra Tenancy Act. (Act 3 of 1926) according to him do not contemplate a suit by a sub-tenant against, the original landholder through whom the plaintiff's own landholder claims. We cannot agree with this argument because it is set out, in Section 99(1)(a) that, the suit lies in the Revenue Court, for dispossession by "his landholder or any person claiming as landholder to have a right to eject him." We consider that a distinction is drawn between the actual landholder of the plaintiff, who was in this case the occupancy tenant, and the landholder in chief, who are in the present case defendants 1 to 4. Learned Counsel argued that, the distinction was not on those lines in the section but, rather on the question of whether the defendant was actually the landholder or only a person claiming to be a landholder. If that had been so the section would have said" or any person claiming as his landholder." But the word "his" is omitted and therefore we consider that the latter part of this sub-section is intended to cover a case like the present where the defendant claims not to be the immediate landholder of the plaintiff but, to be the landholder in chief.

(2.) Similarly under Section 121 the suit may be brought against "the landholder or any person claiming to hold through the landholder;" that, is, the suit, may be brought against the landholder in chief or against any person claiming to hold through the landholder in chief. We think, that there is ample provision in the Tenancy Act for a suit, such as the present. The lower appellate Court has allowed the plaintiff a period to amend his plaint. He has not taken advantage of that, period as he desired to file a second appeal.

(3.) We dismiss this appeal with costs throughout and we allow the plaintiff one month from the date of this order to amend his plaint in which case the order of "dismissal will be replaced by an order that the plaint should be returned to the plaintiff for presentation to the proper Court, if the plaint is amended as directed by the lower appellate Court. If the plaint