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1961 DIGILAW 353 (ALL)

Badri Singh v. Sahdeo Bhar

1961-11-20

M.C.DESAI, R.A.MISRA

body1961
JUDGMENT M.C. Desai, C.J. - This is an appeal by the plaintiffs from a judgment of a Civil Judge dismissing their appeal from a judgment of a Munsif dismissing their suit for ejectment of the respondents from a holding on the ground of arrears of rent. The connected appeal is by the same appellants from a similar judgment passed in another suit for ejectment of other persons from another holding on the same ground of arrears of rent. 2. It is admitted that the appellants are the sirdars of the holdings in the two suits and that the respondents are Adhivasis. It is also admitted that the suits had been filed on the causes of action accruing under Section 234 (a) of the U.P. Zamindari Abolition and Land Reforms Act. While the suits were pending the respondents deposited the arrears of rent in court and on this ground it dismissed the suits. The respondents had challenged the jurisdiction of the civil court to entertain the suits but the issue had been decided in favour of the appellants and the suits failed not on the ground that it had no jurisdiction but on the ground that the arrears had been paid up. The judgments of the trial court were affirmed by the lower appellate court. 3. After hearing Sri K.P. Singh we are satisfied that these appeals should fail not on the ground given by the courts below but on the ground that the suits did not lie in the civil court and that the remedy of the appellant was by means of applications to the Tahsildar in accordance with the provisions of Secs. 220 etc. of the Act. 4. Once it was conceded that the causes of action on which the suits were instituted accrued under Sec. 234(a) of the Act it became evident that no suits on them could have been instituted in the civil court. The Act does not contemplate creation of causes of action which can he made the subject-matter of suits in civil Courts; the intention of the legislature behind the Act has always been that suits based on causes of action created under the Act should be instituted in revenue Courts. 5. It is provided in Sec. 234(a) that an Adhivasi is liable to ejectment from the holding on the ground of his being in arrears of rent and that the provisions of Ch. 5. It is provided in Sec. 234(a) that an Adhivasi is liable to ejectment from the holding on the ground of his being in arrears of rent and that the provisions of Ch. VIII relating to "the procedure and forum relating to suits and applications" for ejectment on any of the grounds aforesaid, shall apply as if the adhivasi were an asami. This means that the relief of ejectment of an adhivasi on the ground of his being in arrears of rent can be had only from Revenue Court and only after following the procedure laid down in the provisions of Ch. VIII relating to suits and applications for ejectment on the ground of arrears of rent. If there is no court mentioned in the provisions of Ch. VIII as having jurisdiction to entertain a suit or an application for ejectment of an asami on the ground of arrears of rent, it would follow that the relief of ejectment of an adhivasi on the ground of his being in arrears of rent cannot be obtained at all. For this relief the plaintiff must go to a Court mentioned in any of the provisions of Ch. VIII; if there is no Court to which he can go he cannot go to any other Court such as a Civil Court, because, as we said above, the legislature never created any cause of action under the Act which can be made the basis of a suit in a Civil Court. 6. It was contended by Sri K.P. Singh that there is no Court mentioned in any provision of Ch. VIII which can give the relief of ejectment of an Asami on the ground of his being in arrears of rent. He is not correct. Ch. VIII consists of Secs. 129 to 230. Sec. 202 lays down the procedure for ejectment of an asami by a suit; he can be ejected under this provision on the ground mentioned in Cl. (b) that there is an unsatisfied decree for arrears of rent mentioned in sub-sec. (2) (a) which can be executed by ejectment. Under Section 206 he can be ejected by a suit on the ground that he has used the land for any purpose other than a purpose connected with agriculture, horticulture or animal husbandry. The interest of an asami is not transferable except as expressly permitted by the Act (vide Sec. 153). (2) (a) which can be executed by ejectment. Under Section 206 he can be ejected by a suit on the ground that he has used the land for any purpose other than a purpose connected with agriculture, horticulture or animal husbandry. The interest of an asami is not transferable except as expressly permitted by the Act (vide Sec. 153). Any transfer made by him in contravention of the provisions of the Act is void under Section 166 and a suit for his ejectment on the ground of his having made a transfer in contravention of the provisions of the Act lies under Sec. 167. Sec. 220 provides that where an asami has been in arrears of rent (for a period of more than three months) the landlord may make an application for an order for payment of the arrears and in default for ejectment of the asami from the holding. This application is to be made before the Tahsildar (vide serial number 31 of Sch. 2). The procedure to be followed by the Tahsildar is laid down in Secs. 221, 222 and 223; he has to issue a notice to the asami calling upon him to pay the arrears within a certain time or to show cause why an order of ejectment should not be passed against him. If he fails to pay the arrears or to show cause the Tahsildar has to pass an order for his ejectment from the holding. These are the provisions of Ch. VIII which relate to suits and applications for ejectment of an asami on the grounds mentioned in Secs. 234 (a), (b) and (c). Ground (b) is that of making a transfer of the holding and ground (c) is that of using the land for any purpose not connected with agriculture, horticulture or animal husbandry. So much of these provisions as relates to the procedure and forum is to apply when ejectment of an adhivasi is sought on any of the three grounds mentioned in Sec. 234. This means that if his ejectment is sought on the ground mentioned in Cl. (b) Sec. 167 will apply, that if his ejectment is sought on the ground mentioned in Cl. (c) Sec. 206 will apply and that if his ejectment is sought on the ground mentioned in Cl. (a) Secs. 220, 221, 222 and 223 will apply. This means that if his ejectment is sought on the ground mentioned in Cl. (b) Sec. 167 will apply, that if his ejectment is sought on the ground mentioned in Cl. (c) Sec. 206 will apply and that if his ejectment is sought on the ground mentioned in Cl. (a) Secs. 220, 221, 222 and 223 will apply. These are the provisions relating to the procedure and forum relating to suits and applications for ejectment of an asami on the grounds mentioned in Cis. (a), (b) and (c). Since the ejectment of the respondents was sought on the ground of Cl. (a) the procedure prescribed in Section 220 etc. was to be followed i.e. applications for orders for payment of the arrears and, in default, for ejectment should have been made. Under Sch. II serial No. 31 they should have been made in the court of the Tahsildar. The provision of Section 234 that the ejectment of the respondents should have been sought through applications under Section 220 made in the court of the Tahsildar implies that the ejectment could not be sought through a suit in a civil court or in any other manner. 7. It was contended that an application under Section 220 lies not for an order of ejectment but for payment of the arrears and an order of ejectment only in default and that it can be made only when the arrears have existed for at least three months. But in our opinion this fact is irrelevant. We have to see whether there are provisions in Ch. VIII relating to the procedure and forum relating to suits and applications for ejectment on any of the grounds mentioned in Clause (a), (b) and (c). It cannot be disputed that Section 220 contains provisions for ejectment of an asami on the ground of his being in arrears of rent; it does so notwithstanding the fact that the arrears are required to be of at least three months' duration, and that the preliminary order to be passed by the Court is that of payment of the arrears. Sec. 234 contemplates that Ch. VIII does contain provisions relating to the procedure and forum relating to suits and applications for ejectment of an asami on the ground that he is in arrears of rent and the provisions in Secs. Sec. 234 contemplates that Ch. VIII does contain provisions relating to the procedure and forum relating to suits and applications for ejectment of an asami on the ground that he is in arrears of rent and the provisions in Secs. 220 to 223 are the only provisions which can be said to relate to such procedure and forum. The reference to applications for ejectment in Section 234 is not redundant, there must be in Ch. VIII some provision relating to applications for ejectment on the three grounds and Section 220 is the only provision which relate to applications for ejectment on any of the three grounds. 8. Section 202 (b) does not deal with ejectment on the ground of arrears of rent; it deals with the ejectment on the ground of unsatisfied decree for arrears of rent and even otherwise a suit for ejectment would lie in a revenue Court. Sec. 331 bars the jurisdiction of a civil court over a suit or application mentioned in Sch. II. The present relevant entry in Sch. II is at serial No. 38 and reads as follows :- Sec. 234 - Suit for ejectment of adhivasi - do. do. do The three dittos stand for `Assistant Collector, `Commissioner,' and `Board.' The entry against this serial number in 1952 when these Suits were instituted read as follows :- Sec. 234 (b) and (c) - Suit for ejectment of adhivasi - do. do. do The Schedule does not contain any entry in respect of Section 234 (a) for an application for ejectment of adhivasi; the reason for the omission is a mystery. But we are not prepared to hold that it was deliberate and that the legislature's intention was to permit a suit to be brought in a civil court for ejectment of an adhivasi on the ground of arrears of rent. Not only did the legislature have no intention of permitting civil suits to be filed in respect of causes of action created under the Act but also has provided for an application to a Tahsildar for ejectment of an adhivasi on the ground of his being in arrears of rent; it could not have permitted a suit to be brought in the civil Court on the same cause of action or for the same or similar relief. 9. 9. Subsequently, the entry in the Schedule was amended but the legislature failed to realise what was the exact amendment required. Under the amended entry it provided only for suits for ejectment without realising that under Section 234 an application for ejectment also can be made. We do not think that the wrong entry in the Schedule helps the appellants at all. The jurisdiction of a civil Court is barred not only when there is an express provision but also when there is a provision impliedly barring it and the provision in Section 234 to the effect that the ejectment of an adhivasi on the ground of arreas of rent must be obtained through an application to a Tahsildar under Section 220 impliedly bars the jurisdiction of a civil Court to grant the relief of ejectment. 10. We, therefore, hold that no suit lay for the ejectment of the respondents and that no relief of ejectment could be obtained from a civil court. The suit was rightly dismissed, though on a wrong ground. 11. We dismiss this appeal with costs.