ABDUL RAUF Vs. MASIH-UD-DIN

JUDGEMENT

(1.) In this case, which is connected with several others which are said to turn upon it, the plaintiff sued the defendant Abdul Rahman in the revenue Court alleging that he, the plaintiff, was an ex-proprietary tenant and that Abdul Rahman was his subtenant. This happened in the year 1921, the cause of action being said to arise on 1 July 1921, so that it has only been going on for 6 years. As the main argument addressed to me today is that the lower appellate Court had no jurisdiction to hear the appeal and that the order made by it ought to be set aside and the appeal heard by the Commissioner, which would, I presume, prolong the final decision of the case for another period of years. It is interesting So note that the value of the appeal is Rs. 7 and the Court-fee is 12-annas so that it has already taken nearly as many years to decide as there are rupees involved. The main dispute as will appear from a perusal of the not inconsiderable judgments which have been delivered is with the defendants, Mohi-ud-din and another, whom the lower appellate Court calls the zamindar. These two defendants Masih-ud-din and Mohi-ud-din were added as defendants on their own application made to the Assistant Collector on 26 May. This is a very importantstep in the suit. The defendant Abdul Rahman, the alleged sub-tenant, was absent. The plaintiff was present and it does not appear that any objection was raised by the plaintiff to the application by those two defendants to be added as parties, and the two defendants were ordered to a file a written statement, which they did. Mr. Haribans Sahai said that an order to join these defendants as parties, could not be resisted because of Section 63, Sub-section (2). So far as I can understand, that sub-section has nothing to do with it. It says that in all suits for ejectment other than those mentioned before any person in possession claiming through the tenant may be joined as a party to the suit. Somebody in the course of this case has said that it is difficult to place reliance on the evidence of either party. I find it difficult to place reliance on any argument presented to me in this Court about questions of jurisdiction under the old Tenancy Act. These defendants, who were joined, were not claiming through the tenant at all. They were claiming as transferees of the plaintiff, or through their father as transferees of the plaintiff, or of his father, in their own right. It looks very much as if they suspected that a trick was being played upon them and that the plaintiff was bringing this suit hoping to get a useful order out of the Assistant Collector in the absence of Abdul Rahman. It is quite plain that they came in to defend themselves and their title, and that both parties proceeded to throw mud at one another, plaintiff alleging that these defendants had made either false or misleading claims of rent in order to give themselves a fictitious claim to oust him while on the other hand, these defendants alleged that the plaintiff was bringing a false claim and that there was no tenancy between him and Abdul Rahman, his alleged subtenant.

(2.) The Assistant Collector decided this controversy in favour of the plaintiff, and found that the absent tenant had paid rent to the plaintiff and not to Masih-ud-din and Mohi-ud-din. No objection was made by the plaintiff to the presence of these defendants at the trial. They were the only defendants who fought him. They clearly fought him on an issue which, if it does not involve a question of proprietary title, I do not understand the meaning of that expression. Having what was a decision in the plaintiff's favour on the merits, which I have not the slightest doubt if it had become final he would have rightly used for his own benefit, the defendants being dissatisfied appealed, and this is a very important feature of the case under Section 177, Agra Tenancy Act, 1901. They alleged that the evidence had been misconstrued and that they had always been realizing rent from Abdul Rahman and that there never had been a tenancy or relation of zamindar and tenant between the plaintiff and Abdul Rahman at all. I can only say that if this does not raise a question of proprietary title between the plaintiff and the then appealing defendants, I do not know how it could be done. I am as clear as I can be on anything arising under the embarrassing Act, which has now ceased to exist, that a question of title strictly so called had been in issue between the plaintiff and these defendants in the revenue Court and was in issue before the lower appellate Court and that therefore, under Section 177 an appeal lay to the District Judge. The district Judge overruled the Assistant Collector on the merits and found as a fact that matters were not as the plaintiff alleged, and that the plaintiff had never been in possession of the land either as cultivator, or rent collector for 20 years and that ever since the sale to them, 20 years before, these two defendants had been in possession as collectors of the rent from the actual cultivators. It is admitted that this is a finding of fact, which is fatal to the plaintiff and which this Court cannot interfere with.

(3.) But it is suggested by a bewildering argument that no appeal lay to the lower appellate Court. One of the arguments is that no question of proprietary title arises, and I am referred to some long judgments by two colleagues of mine reported in Baldeo Kurmi V/s. Kashi Chama A. I. R. l926 All. 312. So far as I can understand this decision which is a sufficiently bewildering collection of irreconcilable authorities it has nothing to do with the case I now have to decide. There appear to have been only two parties, one an occupancy tenant and the other a sub-tenant. What bearing this decision has upon a dispute between an alleged ex-proprietary tenant who is suing for ejectment of a sub-tenant and a third party I have not the slightest notion and I merely mention it for the purpose of passing it by.