Mt. Ram Siri vs M. Iqbal Bahadur on 16 March, 1933

Allahabad High Court
Mt. Ram Siri vs M. Iqbal Bahadur on 16 March, 1933
Equivalent citations: AIR 1933 All 456
Author: Bennet


Bennet, J.

1. This is a first appeal from order by a plaintiff whose plaint in the Revenue Court has been returned by the Assistant Collector on the ground that the suit lies in the civil Court. The suit was brought by the plaintiff Musammat Ram Siri against the defendant Iqbal Bahadur for the arrears due under theka for a number of years 1336-37-38 fasli and kharif of 1339 Falsi. It is to be observed that all these were years during which the Agra Tenancy Act, Act 3 of 1926, was in force. The suit was brought under Section 132, Act 3 of 1926. The only question before us is whether that suit should be brought in the Revenue Court or in the civil Court. The thekanama in question was executed on a date prior to Act 3 of 1926, that is, it was executed on 13th September 1924. The thekanama deals with the entire property of the plaintiff and it sets forth that she desires to give a lease:

of the entire zamindari property in the villages of Bedpur with market, Barauli, Bedpur, Raghopur, Ramit, Hirapur and Siphri and all the shops situate in the city of Etawah.

for a period of twenty years. Para. 1 sets forth:

The lessee should remain in possession of the shops and the property and make collections in respect thereof. Ho should let out the land in his own right. He should exercise all the powers of a zamindar as a lessee.

2. Para. 2 sets forth:

The lessee shall take as his dues 7 per cent…out of the gross rental of the property and the rent of shops.

3. Para. 3 makes reference to amounts spent in constructing buildings in the village for the improvement of the village or for the comfort of dwelling or in making the repairs of the houses mand the “garhi in mauza Bedpur or for getting repairs done to the shops and the houses situate in Etawah. We consider that the reference to villages and in particular to mauza Bedpur does not mean that there were any houses in those villages which were let to tenants but we consider that the refenence is apparently to the “garhi” and the residential house in Bedpur where the plaintiff’s husband-had been accustomed to reside when. he collected rent. Para. 4 refers to the sale of wood of the trees of spontaneous growth and states that 7 per cent is to be deduced from this and the balance handed over to the lessor. Para. 5 provides for the account of profits to be adjusted annually and provides for ejectment on failure to pay profits for two years. Para. 9 sets forth that the lessee is to realise certain arrears. After this paragraph there is a specification of the six villages leased out and the first village is stated to-be Bedpur with market, gross rental with market Rs. 3,673-8-0. The total of the six villages in net income comes. to Rs. 6,284-15-0. It is stated then that the annual rent of the shop is Rs. 3,132 and the total profits of the-property leased out are Rs. 9,416-15-0. And the deduction of 7 per cent which is granted to the thekadar on the gross-income would come to Rs. 659.

4. The argument of learned Counsel is. that this document does not constitute a thekanama which would come under Act 3 of 1926. learned Counsel relies for this proposition on a ruling reported in Ballabha Das v. Marat Narain Singh A.I.R. 1926 All 432. This ruling however was passed on 1st February 1926 before the Act 3 of 1926 had come into force and the ruling proceeded on the particular definition of thekadar in Act 2 of 1901 as is shown on p. 492 (of 24 A.L.J.) as follows:

Land is defined in Section 4(2) as land which islet or held for agricultural purposes. Sub-clause (6) defines thekadar as farmer or other lessee of proprietary rights which must mean rights in land, otherwise a lessee of proprietary rights in house; proportion would come within the definition o£ a thekadar in the Agra Tenancy Act. That obviously could not have been the intention. The expression “agricultural purposes” has not been defined anywhere, but a lease cannot be called a lease for agricultural purposes unless the primary object of the lease is cultivation or agriculture.

5. That particular ruling dealt with a permanent lease of a whole village in. Mirzapur district and the alleged permanent lessees had made mortgages of the whole village and the mortgagees had brought a suit against tenants for arrears of rent. The issue before the Court was whether the permanent lessee could rely on Section 108, T.P. Act, for his right to make a mortgage. The contention was that he could not rely because Section 117, T.P. Act, directed that the provisions of that chapter would not apply to a lease for agricultural purposes. The question therefore was whether the permanent lease was or was not a ‘lease; for agricultural purposes, and it was held, having regard to the provisions of Act 2 of 1901, that that was not a lease for agricultural purposes. But we consider that the question now being one of the jurisdiction of the Courts, the Act which we must consider is the present Tenancy Act, Act 3 of 1926. That Act has greatly altered the definition of a thekadar and has provided a special Ch. 13 dealing with the kadars. In Section 199(1) of that chapter it, is specifically stated:

A thekadar is a farmer or other lessee of proprietary rights in land, and in particular of the right to receive rents or profits.

6. These words are new “of the right to receive rents of profits” and did not occur in the former Act 2 of 1901. The expression there in Section 4(6) was “thekadar includes a farmer or other lessee of proprietary rights,” and immediately above it came the statement “tenant includes a thekadar.” A tenant in that former Act was one who paid rent for land and land so leased or Jet was held for agricultural purposes. A thekadar therefore along with a tenant under Act 2 of 1901 was tied down by the definition that he was a person who paid rent for land which was let or held for agricultural purposes. The definition of thekadar in Act 3 of 1926 has now been freed, from this condition connecting the thekadar with holding the land for agricultural purposes. In the definition of rent in Section 3 of Act 3 of 1926 it is stated:

When used with reference to a thekadar rent means the amount payable by the thekadar to his lessor under the terms of the theka.

7. The rent therefore in regard to a thekadar is distinguished by Section 3, Sub-section 3 from the rent paid by a tenant. The rent paid by a tenant is still defined as whatever is in cash or kind to be paid or delivered by a tenant for land held by him, but as regards a thekadar the rent is no longer for land held by the the kadar but the amount which is payable under the terms of the theka. The whole basis therefore of the argument of learned Counsel is taken away by the alteration in the definitions of thekadar and of rent in Act 3 of 1926. These definitions are, in our opinion, extremely clear and leave no ground for argument or doubt. Considerable argument was made on the point as to whether certain portions of the lease in regard to the villages would include items which could not be considered to be rent under Act 3 of 1926. The criterion applied by course was not the definition of a rent of a thekadar which is whatever is payable under the terms of the theka but it was the definition which would apply to the rent of a tenant. His argument was firstly in regard to the mention of village of “Bedpur with market.” It is not shown in thekanama what the income from the market was or how it was calculated. The theka does specify that the market income is included in the gross rental for this village and apparently is shown as part of the rental of the village in the patwari’s papers. We would refer to the definition of “Sayar” in Section 3, Sub-section 4 as covering miscellaneous kinds of income, the last words ending up with the words ” or the like.” This shows that there is a general inclusion in this “Sayar” income of miscellaneous dues paid to a zamindar.

8. But we do not consider that this question need be considered at all in regard to the question before us. The case of a thekadar is no longer connected with the land because of the definition of rent. In other words, the definition does not look downwards towards the land but looks upwards towards the zamindar. In Section 199 the thekadar is a lessee of the right to receive rents or profits, and the lessee of the proprietary rights in land. The proprietary rights in land are the rights possessed by the land-holder or zamindar. If therefore the land-holder in his capacity of land-holder does receive certain dues from the bazar in this particular village of Bedpur, then his transfer of those rights in the thekanama to the thekadar constitutes him a thekadar in regard to these particular items of income. In other words,’ the income is not to be regarded as to whether it arises from a piece of agricultural land but as to whether it-is something which accrues to the zamindar in his capacity as a zamindar. We have dealt rather long with this elementary point, but the argument before us was very detailed. We regard this lease as comprising of two portions. The first portion is of the six villages and the second portion is the shops in the city of Etawah. The lease is clearly divisible in regard to the two portions and there is no provision in the lease that a lump sum of money is to be paid as rent on the two portions. If there had been such a provision, some difficulty might have arisen in the devision of the lump sum of money between the two portions, but that difficulty does not arise. In the present case the lease specifies that the lessee is to pay to the lessor the income which he collects from each kind of property less 7 per cent.

9. The lower Court laid stress on the provision in the General Clauses Act dealing with new legislation and the lower Court refers to Section 6, General Clauses Act, and says that in virtue of Section 6 the present Tenancy Act cannot-govern or regulate provisions of the thekanama. We do not agree with this argument and the learned Counsel did not show any ruling in support of the argument. He refers to Section 6, United Provinces General Clauses Act, Act 1 of 1904, Sub-sections (1) (b) and (c). The provision is that where any United Provinces Act repeals any enactment liitherto made unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.

10. As regards (a) we do not consider that there was anything in force at the time at which the repeal took effect which would be barred by this Act 1 of 1904. It was subsequent to this Act that the suit in question was brought and there is no question of revising, nor does (b) apply because this is no question of anything done or suffered under a previous enactment. The suit in question was brought not under the old Act but under the present Act. (c) refers to any right, privilege, obligation or liability which arose under the old Act. We do not consider that this will apply because the question before I us is not one of right but one of procedure. It is not a question of the accrual of right but it is a question which forum the plaintiff should go to in order to have the existing rights determined. There is in one case a question of a right having accrued which does not affect procedure and that is the case where under a former enactment a decree has been passed and the person affected by the decree has a right to appeal.

11. It has been held by this Court that a change in procedure will not take away that right to appeal which has already accrued, and for such a purpose Section 6(c) will apply and new legislation will not affect the right to appeal which has come into existence, but we are not dealing here with such a question of right. We are dealing merely with the question as to what forum has jurisdiction to determine the rights of the parties. We consider that there is no doubt whatever that the Revenue Courts have jurisdiction to deal with the claim for arrears on the the-kanama so far as the six villages are concerned. Ch. 13 in regard to theka-dars does not regulate the rights of the parties and Section 220 of that Chapter lays down that for suits by a lessor against a thekadar the proper sections of Schedule 4 will apply, that is, for the arrears of the rent the lessor brings his suit, as in the present case, under Section 132 of the Act, and the section will apply as for a land-holder against his tenant. Section 230, Tenancy Act, lays down that the suits which come under Schedule 4 shall be heard and determined by the Revenue Courts and no Courts other than a Revenue Court shall take cognizance of such suits. This section clearly bars the jurisdiction of the civil Courts in regard to the claim in question. We consider therefore that the proper forum in the present case for the plaintiff’s claim is the Revenue Court and accordingly we allow this appeal and we return the suit to the Assistant Collector with a direction that he shall dispose of the suit according to law.

12. As we consider that the law is clear on the subject and that the objection as to jurisdiction should not have been raised, we direct that the defendant will pay the costs of the plaintiff in this Court and hitherto incurred in the lower Court without regard to the result, other than the court-fee in the Court of first instance which will abide the ultimate decision. There is also a cross objection brought by the defendant to the effect that the lower Court was, not entitled to amend its order which was originally for the dismissal of the suit and change that order into an order returning the plaint for presentation of the proper Court. learned Counsel asks that this cross-objection should be disposed of today. We consider that our order governs the case and therefore the point does not arise and we therefore dismiss the cross-objection with costs.

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