JUDGMENT
Mushtaq Ahmad, J.
1. This and the connected appeal No. 1135 of 1946, arise out of two connected suits filed by the respondents for possession over certain agricultural plots.
2. The original owner of these plots, as also of the zamindari estate to which they appertain, was one Ram Saran Das. This gentleman died sometime ago, leaving two widows, Mt. Basanti as the senior and Mt. Kalawati as the junior widow. The latter died in 1935 and the former in 1942.
3. Mt. Kalawati, the junior widow, during her lifetime created a trust of the entire estate of her husband Ram Saran Dae, claiming herself to be the owner of it under a will by Ram Saran Das. Under this trust, Mt Kalawati had appointed Sahu Shiv Shakti Saran and Sahu Raghubir Saran as trustees. The former of these trustees by virtue of his rights under the trust subsequently became the lambardar of the village in which the plots in dispute are situate.
4. In 1940, one Pyare Lal filed a Suit No. 20 of 1940, in the Court of the civil Judge, Meerut, claiming to be a reversioner of Ram Saran Das and claiming possession over a half share in the property covered by the trust and also a declaration that the deed of trust executed by Mt. Kalawati and all other transfers made by her wore void as against him and one Rameshwar Dayal whom he impleaded as a pro forma defendant as the other reversioner of Ram Saran Das.
5. During the pendency of the above suit in the Court of the Civil Judge, Meerut, Sabu Shiv Shakti Saran, one of the trustees under the trust and the then lambardar of the village, granted three leases, one dated 20th June 1942, and another dated 25th November 1942 in favour of Rati Ram, appellant in Second Appeal No. 1132 of 1946, and the third dated 29th June 1942, in favour of the said Rati Ram and other persons who are appellants in Second Appeal No. 1135 of 1946. It has already been mentioned that the holdings covered by these leases appertained to the zamindari estate dealt with by Mt. Kalawati under the trust.
6. On 19th January 1943, the aforesaid suit no. 20 of 1940, was decreed by the learned Civil Judge in the terms of the reliefs prayed for. Learned Counsel for the parties have stated before me that a first appeal against that decree was filed in this Court which was eventually dismissed and that the decree of the trial Court became final.
7. On 23rd September 1943, the suits giving rise to these appeals were filed by Pyare Lal, one of the reversioners of Ram Saran Das, who had obtained a decree in suit No. 20 of 1940, aforesaid on 19th January 1943. Pyare Lal died during the pendency of the suits and the name of his son was then substituted in his place and the latter is the main respondent in these appeals.
8. The lessees-appellants contested the suits on various grounds but I propose to mention-only those on which Mr. Shyam Behari Lal. Gaur, their learned Counsel, has addressed me in these appeals. These were (1) that the civil Court had no jurisdiction to try the suits, (2) that the leases having been granted by Sahu Shiv Shakti Saran when he was the lambardar in the village could not be challenged, (3) that the trust created by Mt. Kalawati not being void but only voidable, the leases themselves could not be treated as void, and (i) that the leases-were not affected by the doctrine of lis pendens, as held by the Courts below.
9. Both the Courts below rejected these pleas and decreed the suits, and the present appeals are directed against the appellate decrees involving common questions of fact and law.
10. On the first question, namely the jurisdiction of the civil Court to try the suits, the Courts below relied on Parmeshwari Das v. Angan Lal A.I.R. (31) 1944 ALL. 81. This ruling was considered and dissented from in the later Full Bench case of D. N. Rege v. Kazi Mohammad Haider A.I.R. (33) 1946 ALL. 379. Naturally, Mr. Gaur, who showed remarkable-perseverance and zeal in arguing these appeals, contended that the basis of the judgments of the Courts below being now missing, they cannot stand and must be reversed in the present appeals. The passage relied upon in particular by Mr. Gaur in this Full Bench judgment is the following:
The distinction between an ordinary suit against a trespasser in a Civil Court and a suit under Section 180, U.P. Tenancy Act, 1939, is that the plaintiff in the first case alleges that the defendant is setting up a title against proprietary interest, whereas in the second case the plaintiff alleges that the defendant is setting up a title to hold the land as a tenant. The Civil Court has no jurisdiction where a claim to a tenancy has been set up before the institution of the suit and the revenue Court has no jurisdiction where it has not teen so set up.
11. The argument was that as the plaintiff admitted in his plaint that the defendants were, rightly or wrongly, claiming to be tenants, that admission by itself slammed the door of the civil Court and that the only Court which could entertain these suits was the revenue Court under Section 180, U.P. Tenancy Act. It may be said at1 once that so far as the plaintiff was concerned, he definitely treated the defendants in the plaint no better than mere trespassers. He clearly set forth there that the defendants were claiming a cultivatory right through a person who himself had no title in the plots inasmuch as the deed of trust on which that person was relying had itself no legal foundation. In substance, therefore, there can be no doubt that the plaintiff sued the defendants only as trespassers although he did Bay that the latter were claiming to be tenants of the plots in suit. The averment in the plaint the defendants claim had, in the circumstances, only an airy foundation was tantamount an assertion that they had no title at all, whatever their own claim was. If the defendant in a certain suit claimed a cultivatory right under an arrangement with some one who, at the time, was entitled to grant such a right, the position of the defendant as a tenant and as entitled to claim tenancy rights would be an understandable one. On the other hand, if, according to the plaintiff’s allegations, the person from whom the defendants claimed to have acquired tenancy rights was a total stranger to the property in respect of which that right had been granted, the mere fact that according to the same allegation the defendants still persisted in claiming a right would cot amount to an averment which would oust the jurisdiction of the civil Court. It cannot also be denied that a civil Court has jurisdiction to entertain a suit in respect of agricultural holdings also. This point was definitely considered in a previous Full Bench decision of this Court in Mohammad Muslim v. Mahrania A.I.R. (14) 1927 ALL. 369. This decision came within the consideration of the Full Bench which decided the later case in D. N. Rege v. Kazi Mohammad Haider A.I.R. (33) 1946 ALL. 879 and the learned Judges referred to it in the following words:
It seems to us that the learned Judges were intending to decide that there might be cases against trespassers on agricultural land which could be instituted in the civil Court and this is a decision with which we would respectfully concur.
12. The substance of the defendant’s position with regard to his plea of tenancy in a suit for possession filed in a civil Court is, in my opinion, always a reliable test. Where a defendant’s claim to a tenancy is based on the title of a third party and that third party either by a decree of a competent Court already existing or by common consent has himself not a shadow of title, I cannot conceive that he, the defendant, can be credited with any appreciable position as that of a tenant legally so called. Indeed, in the explanation to Section 288, U.P. Tenancy Act we have the following provision:
A plea of tenancy which is clearly untenable and intended only to oust the jurisdiction of the civil Court shall not be deemed to raise a plea of tenancy.
This only illustrates .the principle on which I have made the above observations. In the present case, it is manifestly clear that the position of the defendants was, having regard to the effect of the decree subsequently passed by the learned civil Judge of Meerut, between their predecessor-in-title Shiv Shakti Saran and the present plaintiff-respondent wholly untenable and not entitled to any legal recognition. It would in my opinion be a negation of common sense in such a case to suggest that the plaintiff should still be deemed to have admitted that the defendant was claiming to be a tenant prior to the suit and that, therefore, it could cot be filed in the civil Court. It must in all cases be assumed that the defendants were claiming this position on a title which could not be attacked at it3 very origin but required adjudication by the Court. In the present case, even though the defendants claimed tenancy rights in the plots in suit their claim, as I have already explained, was based on nothing at all. It was based on something which, as subsequently declared by a competent Court had no legal foundation.
13. I, therefore, hold that the suits in the. present case were properly filed in the civil Court.
14. Coming to the next question, Mr. Gaur contended that the leases having been granted by a person who at the time was a lambardar in the village, they could not be challenged in the present suits. Under Section 245, U.P. Tenancy Act, a lambardar has been invested with certain powers including the power to make arrangements for the management of the property. The section clearly mentions that where the lambardar is “entitled to rents…he shall also be entitled…to settle tenants….” In the present case it has already been pointed out that Shiv Shakti Saran, the lambardar, was not entitled to rents because, as Subsequently declared by the Civil Court he had no proprietary title in the property. I, therefore, think that the Courts below were right in rejecting this contention of the appellants.
15. It was next argued by Mr. Gaur that a deed of trust created by a limited owner such as a Hindu widow is not void but only voidable. I kept asking the learned Counsel to cite to me a single case in which such an owner had created a trust of the entire estate of her husband and yet it was not held void. No such case was cited during the arguments. Cases in which it was held that a transfer by gift of a portion of the husband’s property was in certain circumstances to be upheld had no analogy to the question in hand. Besides, learned Counsel had a far greater difficulty presented by the decree passed by the learned civil Judge in Suit No. 20 of 1940 by which the title of the defendants’ transferor had been authoritatively held to have no legal basis. I find it impossible to conceive that where a competent Court has already negatived the title of a defendant or of a person, through whom he is claiming in a previous suit, in respect of a certain property, the defendant can still lay claim to the same property in a subsequent case between the same parties or their legal representatives in the teeth of Section 11, Civil P.C. No case against this proposition was cited by the learned Counsel either.
16. Lastly it was urged that the leases were not hit by the doctrine of lis pendens inasmuch as Section 52, T. P. Act could not apply to agricultural leases but must be confined only to those transfers that were dealt with in that Act including leases for non-agricultural purposes. I see no reason why the principle of this section, which is so salutary and just, should not be made to apply to a case of an agricultural lease, particularly when there is no statutory exemption in that behalf anywhere. The question directly arose in Nisar Husam v. Sunder Lal A.I.R. (14) 1927 ALL. 657 and Maroti Rao v. Mt. Tulsi Rai A.I.R. (14) 1927 Nag. 299 and it was held that the rule of lis pendens was as much applicable to agricultural leases as to any other kind of transfer.
17. I have given anxious consideration to the very long arguments addressed to me by Mr. Gaur for part of the time for two days, but in view of the fact that I have found it difficult to accept anyone of his points, in view particularly of the legal effect of the antecedent history of this litigation, I do not see my way to load my assent to any one of them.
18. For these reasons I dismiss this appeal with costs.
19. Leave to appeal under the Letters Patent is refused.
