Bidiya Misir and Another vs Musammat Daryai and Others

Dalal, J.—I agree with the view of law taken by the lower Appellate Court. One Achbaibar, died and the zemindars put his daughter-in-law in possession as an occupancy tenant. The plaintiffs went to the CiVil Court to dispossess the daughter-in-law of Achhaibar on the ground that they were entitled to succeed Achhaibar in the occupancy holding and not the daughter-in-law. The plaintiffs cannot be permitted to choose jurisdiction of Court by the nature of their allegations. The Court has to see the remedy which the plaintiffs really desire. As pointed out by a Bench of this Court in Badri Kasodhan v. Sarju Misir 22 Ind. Cas. 668 : 36 A. 65 : 12 A.L.J. 29, the provisions of Section 79 of the Tenancy Act apply to cases where there has been a constructive as well as an actual or physical ejectment of a tenant from his tenancy. It is explained there that the principle seems to be that where a person, claiming to 11have succeeded to a tenancy by right of inheritance, finds that on endeavouring to take possession of the same his right is denied and his possession ousted by the zemindar, he has suffered an ejectment at the hands of the landlord within the meaning of Section 79, and his appropriate remedy is by a suit under the Tenancy Act. In the present case the zemindars put Achhaibar''s daughter-in-law in possession, so there was constructive ouster of the plaintiffs from the occupancy holding by the zemindars. The remedy of the plaintiffs lay in going to the Revenue Court to obtain possession. The period of limitation of six months cannot be extended to one of 12 years by the plaintiffs seeking remedy in the Civil Court instead of the appropriate Court of Revenue.

I dismiss this appeal under Order XLI, Rule 11.