Ganga Chamar And Ors. vs Bindesari Rai on 7 May, 1925

Allahabad High Court
Ganga Chamar And Ors. vs Bindesari Rai on 7 May, 1925
Equivalent citations: AIR 1925 All 615
Author: Daniels


Daniels, J.

1. In this casa an ejectment suit was brought in the revenue Court against Bindesari Rai, the present plaintiff-respondent, on the allegation that he was the sub-tenant of the present defendants. His defence was that he was the mortgagee and proprietor of the land. The revenue Court, acting under Sub-section (1)(b) of Section 199 of the Tenancy Act, ordered him to file a suit in the civil Court within three months for a declaration of his title. The question is whether he is entitled to ignore that order and file a suit after the expiry of the three months period, and if he does so, whether the civil Court should entertain it. The date of the Revenue Court’s order was 19th November, 1921. The period of three months expired on 19th February, 1922. The suit was filed two months later, on 19th April, 1922. It was subsequently withdrawn with liberty to file a fresh suit and a fresh suit was filed on 3rd January 1923. It may be taken as settled by the decision in Randhir Singh v. Bhaqwan Das (1913) 35 All. 541 that if the original suit had been filed in time, there would have been a sufficient Compliance with the revenue Court’s order. Here even the original suit was filed after three months. The lower appellate Court holds that the plaintiff can maintain the suit because it was filed not in accordance with the revenue Court’s order but independently of it. The only reason it gives for this singular view is that the suit in the revenue Court is still pending. If the suit had been filed within three mouths, the revenue) Court would have been bound to allow the ejectment suit to remain pending till the civil suit was decided. As the suit, though filed after three months, has been entertained by the civil Court, the revenue Court appears to be awaiting the result of this appeal.

2. The question is really concluded by the decision in Taimur Ali Shah v. Shah Muhammad Khan (1918) 41 All. 211, decided with reference to precisely similar provision in the Land Revenue Act. That decision followed an earlier single Judge decision in Banwari Lal v. Gopi (1907) 30All. 44 which was a case under Section 199 of the Tenancy Act. As however, the suggestion has been made that special period provided by Section 199 is prescribed only for the purposes of suit in the revenue Court and could not affect either the period of limitation provided by the Limitation Act or the jurisdiction of the civil Court to entertain the suit if brought at any time, it is perhaps desirable to examine the principles on which the decision rests.

3. Section 167 of the Tenancy Act reserves certain classes of suits and applications expressly for the decision of the revenue Courts. It not only provides that revenue Courts alone shall decide them but it goes further and excludes the Civil Court from taking cognizance of “any dispute or matter in respect of which any such suit or application might be brought or made.” Among the matters reserved for the revenue Court is the ejectment of a tenant. In fact it may be said generally that a dispute as to wheter the relationship of landlord and tenant exists between the parties is one within the exclusive jurisdiction of the revenue Court on the other hand, questions of proprietary right are in general reserved for the civil Court. But the same question may be in one aspect a dispute as to the existence of tenancy and in another a dispute as to proprietary right. That situation arises whenever, as here, a defendant alleged to be the tenant of the plaintiff pleads that he is not a tenant but a proprietor or mortgagee of the land. In such a situation there was always a danger of conflicting decrees being passed. In the ejectment suit the revenue Court might hold that B was the tenant of A and eject him. The Civil Court might hold that B was the proprietor of the land and A a trespasser. To prevent this conflict of jurisdiction the scheme of Section 199 was devised. The revenue Court before which the question of title was raised was given the option of deciding the question itself or of referring it to the civil Court. If it adopts the former course, it becomes a civil Court for the time being and its decision will be res judicata for any civil suit. If it adopts the second court it must direct the suit to be instituted within a limited time, namely three months, and if the suit is not instituted within that time, must decide the question of title against the defendant. This decision will also be a final decision between the parties.

4. If a party who has been ordered to file a suit within three months is to be at liberty to ignore the restriction and file his suit after three months but before the decision of the revenue Court, the whole policy of the law will be defeated. The revenue Court must decide against him under the imperative provision of Section 199. The civil Court might conceivably decide in his favour. Such a decision would let in the very mischief which it is the whole object of the law to prevent – contrary decisions by independent tribunals each acting strictly within its jurisdiction. Section 10 of the Code of Civil Procedure will not apply because the revenue Court though its decision may indirectly produce the same result, could not have granted the relief asked for in the civil Court.

The decision of the Court below is wrong in principle as well as contrary to authority and must be set aside.

Sulaiman, J.

5. I agree in the order proposed. In my opinion cases arising under the Land Revenue Act or not directly in point though they may be referred to by way of analogy. Under Section 233(K) of the Land Revenue Act, the jurisdiction of a civil Court is barred in respect of all cases affecting partition or union of mahals. Suits relating to such matters are, therefore, ordinarily outside the jurisdiction of a civil Court. It is only when a reference is made by a revenue Court, under Section 111 of the Land Revenue Act, to the civil Court that the civil Court assumes jurisdiction. It is obvious, therefore, that unless the proper reference under Section 111 is in existence the civil Court would have no jurisdiction to entertain the suit at all. That is why I would distinguish cases like Taimur Ali Shah v. Shah Muhammad Khan (1918) 41 All. 211, Shah Muhammad v. Kadir Bux (1914) 12 A.L.J. 989 and Randher Singh v. Bhagwan Das (1913) 35 All. 541 and cases referred to therein.

6. In the present case we have to consider the effect of the provisions of the Agra Tenancy Act. If the revenue Court had actually decided the question of the relationship of landlord and tenant, and had held that the defendant in the revenue Court was a tenant, that would have been a finding by a revenue court competent to decide that question, and the provisions of Section 167 as well as Section 199 of the Tenancy Act would be applicable, and that finding would be final. This in effect has been held in several cases and I may only refer to the cases of Chiranji Lal v. Kehri Singh (1910) 33 All. 1, Baljit v. Mahipat (1919) 41 All. 203, Kishore Singh v. Bahadur Singh (1919) 41 All. 97 and Mullo v. Ram Lal A.I.R. 1921 All. 348.

7. In the present case, however, the revenue Court has not yet finally decided that matter. I have no hesitation in saying that the Civil Court should not try this question, and the only difficulty that I have felt is in trying to state the ground on which this view should be based. The difficulty in my mind arises because of the imperfection in the language used in the Tenancy Act. If we examine Section 167 carefully, it would appear that all suits and applications of the nature specified in the fourth schedule are exclusively triable by revenue Courts, and no Court other than a Revenue Court is entitled to take cognizance of any dispute or matter in respect of which any such suit or application might be brought or made. I think this must mean in respect of which any such suit or application might be brought or made in the revenue Court by the plaintiff to the civil suit. It would be impossible to throw out the plaintiff’s civil suit on the ground that the defendant, if he so chooses, can raise the same dispute in a revenue Court. Now the present plaintiff could not possibly have filed any suit or application in the Revenue Court in which he could have asked the Court to try a dispute between him and the opposite party. So the only Court to which he himself could go was the civil Court. Suppose, for instance, that no suit in the revenue Court had been brought by the defendant at all and the present suit was the first suit instituted, can it be said for a moment that Section 167 would be a bar to such a claim? Obviously it would not have been because the present plaintiff could not have asked for a declaration of his proprietary title in any form whatsoever in the revenue Court. If that is so, then there would be some difficulty in holding that although Section 167 would not have been applicable if no suit in the revenue Court had been pending, it has somehow or other become applicable because such a suit has been instituted. The language of Section 167 cannot bear this construction. On the other hand, it is possible to lose sight of the fact that although the present plaintiff could not himself have sued in the revenue Court, there is a suit pending in that Court which is exclusively triable by it and in which the same dispute arises.

8. I would, therefore, not base my decision on the provisions of Section 167 alone, but base it on the ground that I have a discretion to refuse to grant the declaration asked for when the question in dispute raised in this case is already pending before a revenue Court which is competent to try it and is raised in a suit which is exclusively triable by that Court, though raised at the instance of the defendant to the civil suit. The revenue Court is empowered to decide it; and if it decides it, its decision will have the force of a civil Court decree, and, subject to appeals, will be final. It is obviously undesirable that two Courts, even if they have concurrent jurisdiction to try the same point, should try it simultaneously. Although it is not possible to bring this case within the provisions of Section 10 of the Code of Civil Procedure, as the revenue Court is not competent to grant the relief asked for in the Civil suit, nevertheless the principle underlying that section may be of wider application.

9. Under Section 199, Sub-clause (2), if the defendant in the revenue suit has not complied with the order and has not instituted a civil suit, within the three months allowed, it will be the duty of the revenue Court to decide the point against him. In fact the inevitable result of the failure to file the suit in time will be a decision against the person claiming the proprietary right. If this is to be so, what is the use of the civil Court going on with the dispute as to such right? We are entitled to assume that the revenue Court would decide the point against the present plaintiffs, and it will therefore, be altogether futile to allow the civil Court to go into that question with the posibility of arriving at a contrary conclusion. The provisions of Section 199 are obviously intended to avoid such a conflict of jurisdiction, and the revenue Court alone must proceed with the case. The declaration even if granted by the Civil Court, will be useless and may altogether be ignored by the revenue Court.

10. The only case which I notice is similar to the present one is the case of Banwari Lal v. Gopi (1907) 30 All. 44, where too a suit instituted in the civil Court more than three months after the time allowed by the revenue Court, was held to be not maintainable. The learned Judge who decided that case, however, based his decision on the ground that the ordinary period of limitation for a civil suit was suspended in view of the provisions of Section 199 of the Tenancy Act. He in effect held that Article 120 of the Limitation Act was overridden by Section 199 of the Tenancy Act and the period of limitation was shortened. Although I agree with the view that the civil Court should not grant the declaration, I find it impossible to base my decision on the ground that the suit was barred by time owing to the period of limitation being shortened. As I have already said, I simply in my discretion refuse to grant the declaration asked for.

11. The appeal is accordingly allowed and the order of the lower appellate Court set aside and the decree of the Court of first instance restored with costs in all Courts.

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