B. Mukerji, J. - (1.) THIS is a first appeal from order against the decision of the learned Civil Judge Shahjahanpur, remanding a rent suit for decision to the Asstt. Collector in accordance with law.
(2.) A suit was filed by Amir Mohammad Khan against certain Defendants for a declaration that he was a joint tenant in respect of some 26 plots in village Udaipur Bhoora, Under Section 59 of the UP Tenancy Act, in the Court of Asstt. Collector, Shahjanpur. To this suit of Amir Mohammad Khan the landholder was also a party. It may further be mentioned that the relief for declaration, which was claimed in the suit, was claimed against all the Defendants without any exception. The defence to the suit was a denial by Mohammad Yaqoob Khan, one of the Defendants, specifically, that the Plaintiff was ever a joint tenant or that the Plaintiff's father, Wazir Mohammad Khan, was ever a joint tenant of the plots in suit. It was alleged further that the Plaintiff had never been in possession of the plots in suit within the period of limitation and, therefore, the suit was not only barred by the provisions of Section 42 of the Specific Relief Act but also barred by limitation. It was further contended that the revenue court had no jurisdiction to try the It appears that in this suit the Custodian, Evacuee Properties, also stepped in as a party and an objection was raised on his behalf that since the property in suit was evacuee property the revenue court, before which the suit had been filed, had no jurisdiction to try the suit.
(3.) THE Asstt. Collector struck the following three issues: (1) Whether the revenue court is competent to try the suit ? (2) Whether the Plaintiff or his ancestors ever acquired ex -proprietary tenancy rights ? (3) Whether the Plaintiff is in possession of the land in suit ? if so, to what effect ? It appears that the learned Asstt. Collector went on to decide the first issue first and while deciding that issue he came to the conclusion that the revenue court had no jurisdiction to try the suit. He held, following a decision of the Board of Revenue, that "a claim for co -tenancy lies in a civil court, inasmuch as, the tenant concerned is not aggrieved by any act of the landholder." The learned Asstt. Collector further held that there being no claim and no proof that the Plaintiff was aggrieved by any action of the landholder no suit under Section 59 of the U.P. Tenancy Act for a declaration could lie. The Asstt. Collector, however, overruled the objection preferred on behalf of the Custodian to the effect that the suit was not triable by him on the ground that it necessitated adjudication of the rights of any evacuee. The Asstt. Collector, therefore, dismissed the suit with costs.;