Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Sahdeo vs Budhai And Ors. on 5 April, 1929
Equivalent citations: AIR 1929 All 571, 117 Ind Cas 337
Author: Sulaiman


Sulaiman, J.

1. This is a reference under Section 267, Agra Tenancy Act, made by the Additional Munsif of Allahabad as he was in doubt as to his having jurisdiction to entertain this suit. His reference is in accordance with a ruling of this Court, Ram Pratab Singh v. Chhotey Lal Singh A.I.R. 1928 All. 269. The reference came up first before another Bench which felt doubtful as to the correctness of that ruling. The matter has accordingly been referred to a larger Bench.

2. The plaintiff first instituted a suit for declaration of his right to a tenancy in the revenue Court but his plaint was returned for presentation to proper Court on the ground that the revenue Court had no jurisdiction to entertain the suit. He has now filed the suit in the civil Court and an objection has this time been raised by the defendants that the civil Court had no jurisdiction to hear the case. It is not necessary to set forth all the allegations in the plaint, but it would be sufficient to state that the plaintiff claimed that his father Daulat was a tenant jointly with defendants 1, 2 and 3, and that on the death of his father the plaintiff has succeeded to the joint tenancy. He claimed (a) a declaration to the effect that the plaintiff jointly with defendants 1 to 3 is a tenant of the holding specified in the plaint and that defendant 4 has no right or share in it, (b) and if for any reason the plaintiff is proved to have been dispossessed, he may be awarded possession over the same jointly with defendants 1 to 3. The dispute is undoubtedly with regard to the tenancy and the claim of the plaintiff is contested by the defendants.

3. No doubt under the old Tenancy Act it used to be held by this High Court that a dispute between rival claimants to a tenancy is cognizable by the civil Court, particularly when the landholder is not a party to the proceeding. The Board of Revenue had expressed a contrary opinion.

4. The present case, however, is governed by the new Tenancy Act (Act 3 of 1926) and the old rulings are not necessarily applicable.

5. It is clear that the legislature has made drastic changes in the Tenancy law and the language of the relevant sections has been considerably altered so as to widen their scope very much. Under Section 99 of the Act a tenant who has been ejected or prevented from obtaining possession of any part of his holding otherwise than in accordance with the provisions of this Act by his landholder or any person claiming as landholder to have a right to eject him or any person claiming through such landholder or person, whether as tenant or otherwise, may sue the person so ejecting him or keeping him out of possession for possession and compensation. Section 121 provides that at any time during the continuance of a tenancy the tenant of a holding may sue the landholder, or any person claiming to hold through the landholder, whether as tenant or rent free grantee or otherwise, for a declaration of his right as tenant, and that in any such suit against the landholder or the person claiming to hold through the landholder, the landholder should be joined as a party. These sections correspond to the old Sections 79 and 95. Section 230 which has not been referred to in the order of reference or in the rulings cited in the judgment corresponds to the old Section 167 and provides in emphatic language that all suits and applications of the nature specified in Sch. 4 shall be heard and determined by the revenue Courts and no Courts other than the revenue Courts shall except by way of appeal or revision as provided in this Act take cognizance of any such suit or application or any suit or application based on a cause of action in respect of which adequate relief could be obtained by means of any such suit or application. The section is very wide and mandatory. So long as the suit or application of the nature specified in Sch. 4 can be heard by the revenue Court the jurisdiction of the civil Court is completely ousted. The question which we have to answer is whether the present suit is of a nature specified in that schedule. It seems to me quite clear that the relief for declaration claimed by the plaintiff would fall within the four corners of Section 121 of the Act inasmuch as the defendants, although they had not claimed to be the landholder, certainly claimed to be tenants and therefore must be deemed to be persons claiming through the landholder. The relief for possession falls within the scope of Section 99 because here again the defendants are persons “claiming through such landholder or persons, whether as tenant or otherwise?” It does not seem necessary that the defendants must set up a case of a special grant or special contract with the landholder or a subsequent recognizance by him of their title, coupled with a denial of the plaintiff’s title. To place this restriction on the expression used in this section would be to limit the scope of the provisions by introducing new words into the sections. In group B of Sch. 4 serial Nos. 12 and 15 include suits under Sections 99 and 121 of the Act and therefore make Section 230 directly applicable.

6. The explanation to Section 230 makes it still more clear that the revenue Court alone would have jurisdiction to entertain this suit when adequate relief could be granted by the revenue Court, it being immaterial whether the relief asked for is or is not identical with that which the revenue Court could have granted. I may further point out that a declaration granted in favour of a tenant in the absence of the landholder may lead to further litigation and need not be absolutely final and conclusive. On the other hand, if the suit is instituted in the revenue Court and the landholder is made a party under the provisions of Section 121 Sub-clause (2) the dispute may be settled once for all. In this view of the matter I would hold that this suit is not cognizable by the civil Court and that the plaint ought to be returned for presentation to the revenue Court. This is my answer to the reference.

Mukerji, J.

7. I entirely agree with my brother Sulaiman’s remarks but having regard to the importance of the question, I would like to add just a few words of my own.

8. There can be no doubt that if Section 230, Ten. Act of 1926, excludes the suit before us from the cognizance of the civil Court, the civil Court will have no right to hear it, on the simple ground that all cases of civil nature should be heard by it. In order to see whether the case falls or not within the purview of Section 230, Ten. Act, we have to look to Sch. 4 and serial Nos. 12 and 15. These numbers refer to Sections 99 and 121, Ten. Act.

9. As already stated by my brother, Sulaimin, J., the suit is partly one for a declaration of title that the plaintiff is a co-tenant of a certain holding with the defendants. The plaintiff further wants that in case it should be proved that he is out of possession, he should be put in joint possession with the defendants. So far as his suit is one for declaration of title, we have to see if it is covered by Section 121, Tenancy Act. That section reads as follows:

(1) At any time during the continuance of a tenancy the tenant of a holding may sue the landholder, or any parson claiming to hold through the landholder, whether as tenant or rent free grantee or otherwise, for a declaration of his right as tenant.

(2) In any such suit against the landholder any person claiming to hold through the landholder may be joined as a party, and in any such suit against a person claiming to hold through the landholder, the landholder shall be joined as a party.

10. It will be noticed that the suit may lie not only against the landholder but also against
any person claiming to hold through such landholder, whether as a tenant or….

11. The question then is whether the defendants, who are interested in denying the plaintiff’s title, are or are not persons who are claiming through the landholder. In my opinion, when a person is admitted to be tenant of a holding, it must be taken that he is claiming through the landholder. He cannot claim otherwise than through the landholder. It is not necessary, therefore, that before the suit is instituted under Section 121, that the defendant should have declared anywhere, either orally or in writing, that he was claiming through the landholder. The words “through the landholder” were put down because the classes of suits contemplated might include a suit which was directed not only against a tenant but also against people other than tenants. Those people would come under the words, “rent-free grantee or otherwise.” The learned Judges who found difficulty in applying Section 121, Tenancy Act, were of opinion that the words; “claiming to hold through the landholder” implied a previous declaration of the character of the holding by the defendant. I respectfully differ from that opinion.

12. So far as the suit relates to possession or joint possession, almost the same remarks apply if we read Section 99 in the same light. The relevant portion of Section 99 reads as follows:

A tenant… prevented from obtaining possession of his holding… (a) by his landholder… or (b) any person claiming through such landholder… whether as a tenant or otherwise may sue the person… keeping him out of ossession.

13. Now let us see whether the case before us falls or not entirely within the purview of this language. The persons who are interested in keeping the plaintiff out of possession are admittedly tenants. Being tenants, they are claiming, not through any title held in themselves but through a title held by the landholder. There seems therefore to be no escape from the language of Section 99 of the Act.

14. As my learned brother has already pointed out, the amended section relied on settled a great anomaly that existed under the Act of 1901, as interpreted by this Court. A suit by a person who was admitted to be a tenant always lay in the civil Court. The successful plaintiff, after going through litigation in three Courts, still found himself confronted with a difficulty if the landholder was not inclined to accept him as a tenant. He had again to go through a campaign of litigation. To settle, this anomaly, the language of Sections 99 and 121 have been very wisely widely put, so that, once for all, the question of title might be settled to the satisfaction of the tenants and the landlord. That this idea was in the mind of the legislature is made perfectly clear by Sub-section (2), 8. 121. It enjoins on the plaintiff the duty of making the landholder a party where the suit is against any person other than the landholder. The idea is that the landholder must be there, so that the question may be settled once for all in his presence.

15. I agree in answering the reference in the manner proposed by my brother Sulaiman, J.

Banerji, J.

16. I agree with the view taken by my learned brothers. I only wish to add that for the purpose of deciding whether a revenue Court or a civil Court has jurisdiction to try a suit one has got to refer to Section 230, Agra Tenancy Act. The intention of the legislature appears to be perfectly clear as in Section 230 it is provided that no Courts other than a revenue Court shall take cognizance of any suit based on a cause of action in respect of which adequate relief could be obtained by means of any suit or application. A reference to Sch. 4, Group B serial Nos. 12 and 15 makes it clear that the revenue Courts could grant the relief which the plaintiff seeks by the present suit. The cause of action alleged by him is of such a nature that no question can arise as to the jurisdiction of a revenue Court granting the relief the plaintiff asks for. I agree with my learned brothers that Sections 99 and 121, Agra Tenancy Act, are wide enough to provide for the relief claimed by the plaintiff.

17. The present suit is not cognizable by the civil Court. We accordingly order that the Court of the Additional Munsif of Allahabad should return the plaint for presentation to the revenue Court. As the defendants have been inconsistently raising the question of jurisdiction in the two Courts, we direct that both parties should bear their own costs throughout.

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

109 queries in 0.199 seconds.