- (1.) These two appeal arise out of two consolidated suits for recovery of possession and damages. In the suit to which second civil appeal No. 28 of 1946 relates, Jagannath Prasad Onkar Nath and Mst. Sukhdei claimed possession of grove plot No. 1389 in village Atta patti Ram Ghulam Singh, Pargana Haratra district Unnao and damages amounting to Rs. 400/- for the price of the trees alleged to have been cut by the Defendant Pirthipal Singh and of the produce thereof. The suit giving rise to second civil appeal No. 29 of 1946 was for recovery of grove plot No. 1400 in the same village and for recovery Rs. 400/- as damages on account of the price of the trees and their produce. The Plaintiffs in this suit were four persons Krishna Behari Kunj Behari Ram Behari and Brij Behari. There were a number of points in dispute between the parties. The plea which is relevant for the disposal of the appeals was with regard to the jurisdiction of the Civil Court to entertain the suits. The Defendant maintained that the suits were of the kind covered by Section 183, U.P. Tenancy Act and their cognizance by the Civil Court was barred by the provisions of Section 242 of the Act.
(2.) The trial Court decided the issue of jurisdiction in favour of the Plaintiffs. The lower appellate Court disagreed with that view but held that Section 291, U.P. Tenanoy Act applied. It accordingly proceeded to dispose of the suit. on merits and since its view on other proints was in accord with that of the trial Court, it affirmed the decree except that damages in each case were reduced from Rs. 400/-to Rs. 350/-.
(3.) Dissatisfied with the aforesaid decree pirthipal Singh has come to this Court by way of second appeal. It is nrged on his behalf that the learned Civil Judge was not entitled to apply the provisions of Section 291, U.P. Tenancy Act, in as much as appeals against decisions of suits Under Section 183, U.P. Tenancy Act lay on the revenue side. The argument is sound. The defect of jurisdiction cannot be cured Under Sections 290 and 291, Tenancy Act in cases where a suit is wrongly instituted in a Civil Court and an appeal would lie to the Commissioner, if it was rightly instituted see Mahadeo Prasad v. Jokhan Ram,1947 OWN 40 F.B. I am, however, of the opinion that the view of the lower appellate Court on the question of jurisdiction is wrong. Section 183 of the Act contemplates cases in which a tenant is illegally ejected or prevented from obtaining possession of his holding by bis landholder or any person claiming as or through a landholder. 'Landholder' is defined in Sub-section (11) of Section 3 as a person to whom rent is, or but for a contract express or implied would be, payable. The Defendant pirthipal Singh is not a land holder in the above sense in as much as he is merely a co-sharer in patti Ram Ghulam Singh. In an undivided mohal, the rent is payable either to a lambardar or to the entire body of co-sharers conceived of as one unit. The illegal ejectment of a tenant in an undivided mohal must be the joint act of all the cosharers in order that the provisions of Section 183 U. p. Tenancy Act should apply. Where the tenant has been wrongfully dispossessed by one of the co sharers only, it is not possible to regard the act as dispossession by the land holder within the meaning of that section. A suit by a tenant against such a person for possession and damages would not be covered by Section 183 and would not be cognizable exclusively by Courts of Revenue. A view to this effect was taken in Ram Sarup Singh v. Sarju Ahir,1939 OWN 1036. in respect of a suit Under Section 108(10), Oudh Rent Act and in Chheda v. Achhu Singh,1916 ILR(All) 690. in respect of one Under Section 79, Agra Tenancy Act, 1901.;