J.K. Tandon, J. - (1.) THIS revision is directed against the order of the court below passed in an appeal before it setting aside the decree of the trial court and remanding back the case for disposal in the light of the observations made by it.
(2.) THE Plaintiffs, who are the applicants before us, instituted a suit for possession of certain plots which according to them had been mortgaged with possession in favour of the Defendants, opposite -parties by a deed executed on 7 -5 -1926. Before instituting the suit the applicants made an application under Section 12 of the UP Agriculturists' Relief Act for redemption of the very same mortgage. This application, which was registered as a suit, was subsequently dismissed because in view of the Full Bench decision in Mahabal Singh v. Ram Raj, AIR 1955 All. 604 the appropriate remedy of the applicants lay not in proceedings under Section 12. of the Agriculturists' Relief Act but in a regular suit for possession in the appropriate court. The suit thus commenced was resisted by the mortgagee Defendants on several grounds. The property in suit consisted of two sets of plots, one described in Sch. A and the other in Sch. B. With regard to the Plots mentioned in Sch. B the defence was that the Plaintiffs were not the tenants of those plots which, on the other hand, were the tenancy plots of Sheo Paltan, Palku, Lagan and Paltan. An issue as follows was also framed by the Munsif: Whether the Plaintiffs are the tenants as alleged of the plots in list 'B' at the foot of the plaint? The suit was instituted in 1951 before the coming into force of the UPZA and LR Act, 1950. UP Tenancy Act was, therefore, in force at that time. When, therefore, the suit came up for hearing, it was contended on behalf of the Defendants that the issue aforesaid needed to be referred to the revenue court under Section 288 of the UP Tenancy Act for a finding on it. The learned Munsif by a previous order dated 2 -5 -1951 did not accept the Defendants' contention but subsequently upon a second application having been moved by the Defendants he found by his order dated 19 -10 -1951, that the issue did arise and needed to be referred to the revenue court for decision. The issue was accordingly so referred. Before, however, the revenue court could hear and decide this issue the UPZA and LR Act, 1950 came into force. It was, it appeared, then contended that as a result of the repeal of the UP Tenancy Act by the UPZA and LR Act, 1950 the jurisdiction of the revenue court came to an end, Section 288 of the UP Tenancy Act itself having been repealed, and the issue should be decided by the civil court concerned. Though not very clear from the record, it nevertheless appeared it was considered that in view of the provisions of the UPZA and LR Act, 1950 the civil court should decide questions relating to title and the question raised was one of title. The revenue court, therefore, returned the record to the civil court saying that in view of the coming into force of the UPZA and LR Act, 1950 revenue court had no longer any jurisdiction.
(3.) THEREAFTER the case proceeded in the court of the Munsif. Evidence in this issue as well as on others was taken and the learned Munsif decided the suit including this issue in favour of the Plaintiffs applicants. The Defendants thereafter appealed against the judgment of the learned Munsif and in appeal the only question canvassed was whether it was necessary for the learned Munsif to send the issue for a finding by the revenue court under Section 288 of the UP Tenancy Act. The learned appellate Judge found that: the Plaintiffs could get possession of the lands shown in list B, if, and only if they proved themselves to be the tenants of those lands. (Reference to 'those lands' was obviously to plots mentioned in Sch. B). The learned Judge also found that since the cause of action in respect of the suit had arisen before the commencement of the UPZA and LR Act, 1950 the issue as plffs. tenant rights necessarily required to be referred to the revenue court for a finding. He also relied on the UP Land Tenures (Legal proceedings) (Removal of Difficulties) Order, 1952 made by the Government under Section 342 of the said Act. This Order provides that, Every suit, appeal or legal, proceeding in respect of any right, privilege, obligation or liability acquired, accrued or incurred under or in pursuance of the UP Tenancy Act of 1939 shall... (a) where pending on 30 -6 -1952, in any revenue or civil court be continued in such court, and (b) where not so pending, may be instituted or commenced in the court in which it would but for the enactment of the UPZA and LR Act, 1950 have been instituted or commenced.;