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1944 DIGILAW 80 (ALL)

Sheo Narain v. Bishnath Singh

1944-04-21

MADELEY

body1944
JUDGMENT Madeley, J. - This is a civil reference u/s 289(2) of the U.P. Tenancy Act. The facts are that Sheo Narain Plaintiff brought a suit against Defendant opposite-party Bishnath Singh for possession of a plot of land No. 482 in village Kharethu, pargana and tahsil Amethi, District Sultanpur. Plaintiff alleged that he obtained a patta from the Court of Wards in charge of the Amethi estate on the 20th May, 1939, and is a hereditary tenant. He alleged that the Defendant who was a trespasser, wrongfully dispossessed him in 1940 and caused him loss of about Rs. 50 thereby. He brought this suit for possession and Rs. 50 as damages. It is unnecessary to go into the defence pleas. The suit was filed u/s 180 of the U.P. Tenancy Act and a plea was raised in the revenue Court that the suit was not maintainable in that Court. The Assistant Collector upheld that plea of the Defendant, and the order is that a tenant can sue a trespasser only in the Civil Court for possession and the suit is not maintainable in the Revenue Court. The plaint was not returned to the Plaintiff, Plaintiff then filed a suit in the Civil Court, and there in para 6 of the written statement the defence was taken that the suit does not lie in the Civil Court. The learned Addl. Munsif, in accordance with Section 289(2) of the U.P. Tenancy Act, has referred the matter to this Court for necessary orders as to whether the suit lies in the civil or in the revenue Court. Section 289(2) provides, "Where any suit, application or appeal, having been rejected either by a civil or by a Revenue Court on the ground of want of jurisdiction, is subsequently filed in a Court of the other description, the latter Court, if it disagrees with the finding of the former, shall submit the record, with a statement of the reasons for its disagreement to the High Court or the Chief Court as the case may be." 2. The learned Additional Munsif relies on Section 44 of the Agra Tenancy Act and remarks that under this section it has been held by the Board of Revenue that a tenant is a landholder for the purpose of Section 44. In Bhajan Singh v. Ram Singh (1933) 17 R.D. 14. Mr. Oppenheim S.M. and Mr. The learned Additional Munsif relies on Section 44 of the Agra Tenancy Act and remarks that under this section it has been held by the Board of Revenue that a tenant is a landholder for the purpose of Section 44. In Bhajan Singh v. Ram Singh (1933) 17 R.D. 14. Mr. Oppenheim S.M. and Mr. Walton J.M. held that a tenant can sue a trespasser for ejectment u/s 44. There are, he says, many other rulings on this point. 3. The Additional Munsif also relies on Section 3(23) of the U.P. Tenancy Act in which "tenant" is said to include "sub-tenant" except when a contrary intention appears. 4. He then deals with the reasoning of the revenue Court, which refused to entertain the plaint, that if a tenant is regarded for the purpose of Section 180 of the Act as the person who can sue under that section, i.e. as the person entitled to admit the trespasser as a tenant, then the landholder will be debarred from suing under that section, and this may lead to collusive transfers of tenancies contrary to law, because under. Section 180(2) if a suit to eject a trespasser is barred by limitation, he becomes a hereditary tenant. He quotes a note on the U.P. Tenancy Act circulated by the Government "If a suit to eject a trespasser is barred by limitation, he becomes a hereditary tenant. In the case of trespass on the land in possession of a landlord he will hold from that landlord. In the case of trespass on the land of a tenant he will take the place of that tenant in the land on which he has trespassed." 5. He goes on to say that this is not authoritative as to the intention of the Legislature. He further remarks that the landholder has not the right to sue u/s 180(1) if it is interpreted literally and that Section 180(2) ought to be restricted to trespass on the zamindar's land not held by tenants, and the section calls for amendment. He notes that Section 180 is specified in the 4th Schedule of the U.P. Tenancy Act, and that the jurisdiction of the Civil Court is barred by the mandatory provisions of Section 242. 6. He notes that Section 180 is specified in the 4th Schedule of the U.P. Tenancy Act, and that the jurisdiction of the Civil Court is barred by the mandatory provisions of Section 242. 6. It may be observed that according to the note circulated by the Government on the U.P. Tenancy Act exactly the same result will follow where a suit or execution proceeding becomes time-barred against a trespasser on land in possession of a tenant as will follow in case of limitation running out as against a trespasser on land in possession of a landholder. Since, on the interpretation of Section 180 adopted by the learned Addl. Munsif, the landholder would not be able to prevent limitation from running out in the former case whereas he would in the latter, the result scarcely seems fair or logical, Apparently the landholder could not proceed u/s 88 (relating to abandoned holdings) unless the hereditary tenant left the neighbourhood. It seems therefore that, if the tenant is the person to sue a trespasser u/s 180, the landholder has no remedy at all against a trespasser in case of collusion. The provisions of Section 180(2) are such that no presumption of collusion could arise from the omission to sue or to execute a decree u/s 180 by the tenant. The difficulty raised by the learned revenue Court is therefore very real. 7. If the result to the landholder is the same whether the trespass is on land in possession of the landholder or on land in the possession of a tenant, it seems to follow that it must be he who is responsible for taking action against the trespasser in both cases. 8. The learned Addl. Munsif thinks that it was the intention of the Legislature in Section 180 to widen the scope of the word "landholder" used in Section 44 of the Agra Tenancy Act, but he mentions a number of decisions that "landholder" for the purpose of Section 44 included a tenant. If this was the purpose, therefore, the change was unnecessary. The interpretation of the section depends upon the question whether "tenant" as used in Section 180 includes "sub-tenant". By Section 230 of the Agra Tenancy Act all suits specified in the 4th Schedule must be brought in a revenue Court if adequate relief can be obtained in the revenue Court. If this was the purpose, therefore, the change was unnecessary. The interpretation of the section depends upon the question whether "tenant" as used in Section 180 includes "sub-tenant". By Section 230 of the Agra Tenancy Act all suits specified in the 4th Schedule must be brought in a revenue Court if adequate relief can be obtained in the revenue Court. The explanation to the section is "If the cause of action is one in respect of which adequate relief might be granted by the Revenue Court, it is immaterial that the relief asked from the Civil Court may not be identical with that which the Revenue Court could have granted," 9. Section 230 seems to preserve the right of a sub-tenant to bring a suit for damages in a Civil Court if adequate relief cannot be given by the revenue Court. Section 242 of the U.P. Tenancy Act makes no such provision. In both the section and the explanation "relief" simply has been substituted for "adequate relief". In the U.P. Tenancy Act the period of three years' limitation for bringing a suit for arrears of rent starts 15 days after the arrears become due. A suit for four years' rent can therefore be brought and damages u/s 180 are limited to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants. If, therefore, in Section 180 "tenant" includes "sub-tenant", a tenant, who was kept out of his holding by a trespasser for four years, would be deprived of all the profits of cultivation for those four years and could obtain from the trespasser merely the four years' rent for which he was liable to the landholder. I doubt if this can have been the intention of the Legislature. 10. Parmeshwari Das v. Angan Lal 1944 A.W.R. (H.C.) 56 : O.A. (H.C.) 56 : A.L.J. 67 at 69 has been cited by Counsel. The argument addressed to the Court was similar to that set forth above. Their Lordships held, "In our opinion the fact that the word 'adequate', which previously existed in the section, does not find place in the new section, does not make any real difference on the question of the interpretation of the section. The argument addressed to the Court was similar to that set forth above. Their Lordships held, "In our opinion the fact that the word 'adequate', which previously existed in the section, does not find place in the new section, does not make any real difference on the question of the interpretation of the section. Even now the section excludes only those suits 'based on a cause of action in respect of which relief could be obtained by means of any such suit' in the revenue Court, and though the word "relief" may not mean the entire relief, at the same time it does not mean insignificant relief and the natural meaning of the word 'relief' occurring the section is that it must be either the relief which the Plaintiff claims or a substantial portion of it." 11. That Bench therefore held that the law laid down in Muhammad Muslim's case 1930 A.L.J. 637 and in previous decisions was still good law and the case should proceed in a Civil Court. This case was by no means on all fours with the case before me. It, however, answers a remark made in Baijnath v. Sheoraji 1943 O.A. 183 : A.W.R. (C.C.) 79 : O.W.N 307, "the intention of the legislature as embodied in Section 242 of the U.P. Tenancy Act, is to confine to Revenue Courts all suits for possession of agricultural land by persons lawfully entitled thereto against those taking or retaining unlawful possession without their consent." 12. A subsequent Bench decision of this Court distinguished that case and held that the above remark must be confined to the facts of that case. It held that the case was rightly decided because the Plaintiff was a lessee with heritable and transferable rights and practically in the position of an under-proprietor. It was rightly held that such a lessee could bring a suit u/s 180 of the U.P. Tenancy Act. But this principle does not apply to a tenuat who brings a suit against a trespasser because "tenant" as used in Section 180 does not include "sub-tenant". The suit therefore, not being one u/s 180, does not fall within the scope of Section 242 and is triable by a Civil Court. This decision is Miscellaneous Appeal No. 13 of 1943 in re: Ram Prasad v. Mst. The suit therefore, not being one u/s 180, does not fall within the scope of Section 242 and is triable by a Civil Court. This decision is Miscellaneous Appeal No. 13 of 1943 in re: Ram Prasad v. Mst. Balraji Since reported in 1944 S.L.R. 68 and as a Bench decision is binding upon me sitting as a single Judge. I have been asked by the opposite-party's learned Counsel to refer the matter to the Hon'ble the Chief Judge to form a Full Bench, but I see no reason to do so. For the reasons given in this judgment I am in full agreement with the interpretation put upon the sections of the U.P. Tenancy Act in Ram Prasad v. Mst. Balraji Since reported in 1944 S.L.R. 68 (Misc. Appeal No. 13 of 1943). 13. I therefore in answer to the reference hold that this suit is triable by a Civil Court, and I return the case for trial by the learned Addl. Munsif.