JAIMAL SINGH Vs. SHIB SARAN SINGH

JUDGEMENT

(1.) WE think that the ground upon which the lower Appellate Court decided this case was not correct. The plaintiff is not a recorded co-sharer of the property in respect of which the profits claimed are alleged to have accrued due. The lower Appellate Court seems to think that the mere fact that the plaintiff was not recorded was sufficient to prevent him maintaining the suit. WE do not think this view is correct. Section 201 of the Tenancy Act provides for what is to be done in the case of a plaintiff who is recorded and in the case of a plaintiff who is not recorded. If the issue arises as to the latter s title, the Revenue Court is either to try the case itself or to refer the plaintiff to a Civil Court. WE think, however, that it is perfectly useless to send the case back for trial, because on the allegations of the plaintiff himself in his plaint he cannot possibly maintain the present suit. According to his own allegations the defendant Musammat Dayali Kunwar is not and was not a co-sharer. The other defendant is a minor and it is not alleged that he made collections. Furthermore the suit is a suit for profits. Otherwise it could not have been instituted in the Revenue Court. It is not alleged and could not have been alleged that either the minor or Musammat Dayali Kunwar was the Lambardar. In reality the plaintiff s suit is a suit for damages because a certain compromise was not carried into effect. (The compromise fell through because it was found by the Court that the compromise was not for the benefit of the minor.) The person with whom the compromise was really made was dead before the institution of the suit. WE dismiss the appeal with costs.