KAGLAWAU TEJBHAN SINGH v. AYODHYA PRASAD KAMTA KACHCHI
1962-04-23
S.P.BHARGAVA
body1962
DigiLaw.ai
JUDGMENT S.P. Bhargava, J. By this appeal the defendant, who was unsuccessful in both the Courts below, challenges the decree for possession of certain lands situated at the village Hinauta and mesne profits amounting to Rs. 300. The case of the plaintiffs is that their father, Kamtai, held the tenancy rights in the suit lands and was in possession of them till his death. The plaintiffs continued to be in possession of the lands for 3 years more, after the death of their father when they were dispossessed by the defendant, who was the Pawaidar of the village. At the time of their dispossession, both the plaintiffs were minors. The dispossession took place some time in the year 1952 and the suit was instituted after the plaintiff Ayodhya Prasad attained the age of 19 years or thereabout, on 25-11-1957. His younger brother, Mangal, was then a minor of about 13 years of age. Both the Courts have found that the suit lands belonged to Kamtai in his life-time and the plaintiffs came in possession of them after his death; that the plaintiffs were minors at the time of dispossession and they were dispossessed by the defendant as alleged; that the suit was within time and was cognizable by the civil Court. In that view, the claim of the plaintiffs was decreed. Shri G. P. Singh, learned counsel for the defendant-appellant has raised two contentions : (1) that the plaintiff's suit was barred by limitation; and (2) that it could not be entertained by the civil Court. On the findings of the lower Court, it must be accepted that at the time of dispossession, Ayodhya Prasad, the elder brother was 14 years of age. The question is as to whether the time did not run against the plaintiffs in view of their minority under the provisions of section 6 of the Limitation Act. The act of dispossession took place in the year 1952 when the Quanoon Mal of Maihar State was in force. This Act was replaced by the Rewa Land Revenue and Tenancy Act, from 1-5-1953. The Rewa Act, in its turn, was replaced by the Vindhya Pradesh Tenancy Act 1953, which came in force from 1-4-1955.
The act of dispossession took place in the year 1952 when the Quanoon Mal of Maihar State was in force. This Act was replaced by the Rewa Land Revenue and Tenancy Act, from 1-5-1953. The Rewa Act, in its turn, was replaced by the Vindhya Pradesh Tenancy Act 1953, which came in force from 1-4-1955. These facts would make it clear that at the time of dispossession the Maihar Act was in force, and at the time of the institution of the suit, the Vindhya Pradesh Tenancy Act was in operation. Shri Singh has argued that the suit must be held to be barred, as the Maihar State Quanoon Mal has not made section 6 of the Limitation Act applicable to the proceedings before the revenue Court. The provisions contained in sections 112, 118, 119, 304 and 306 of the Maihar State Quanoon Mal, correspond to the provisions contained in sections 136, 144, 145, 338 and 342 of the Rewa Act. The provisions in the Rewa Act are in English language, and therefore, for the sake of convenience, I am quoting the relevant provisions from that Act: Any tenant ejected from, or prevented from obtaining possession of, his holding or any part thereof, otherwise than in accordance with the provisions of this Act, by a pawaidar or sub-pawaidar or any person claiming as pawaidar or sub-pawaidar to have a right to eject him, or any person claiming through such pawaidar or sub-pawaidar or person whether as tenant or otherwise, may apply to the Deputy Commissioner for (1) possession of the holding; (2) for compensation for wrongful dispossession; and (3) for compensation for any improvement he may have made, provided that before proceeding with the application the Deputy Commissioner shall give notice to the person or persons alleged to have ejected the applicant or kept him out of possession.
(1) The interest of a tenant shall be extinguished - **** (e) Where the tenant has been deprived of possession and his right to recover possession is barred by limitation; **** (1) At any time during the continuance of a tenancy the tenant of a holding may apply to the Deputy Commissioner for a declaration (a) of his right as tenant; (b) the class to which the tenant belongs; (c) the area, numbers or boundaries of his holdings; (d) the rent payable in respect of the holding and whether payable in cash or kind. **** **** In the Schedule, for recovery of possession of the holding or for compensation or for both, the period prescribed in the Act is 12 months from the date of wrongful possession. On the basis of the parallel provisions in the Maihar Quanoon Mal, it was argued by Shri G. P. Singh, the learned counsel for the appellant, that the minor plaintiffs in the present suit were not entitled to the benefit of the provisions made in section 6 of the Limitation Act, because that section was not applied by making any provision in the Quanoon Mal for the purpose. He further urged that as the Limitation Act was not even generally applied, the suit, which has admittedly been instituted by the plaintiffs beyond 1 year of the date of their dispossession, must be held to be barred by time. He stressed that section 29(2) of the Limitation Act provides that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed therefore by the First Schedule, the provision of subsection (3) shall apply as if such period was prescribed therefore in that Schedule and for the purpose of determining any period for limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4, 9 to 18 and 22 shall apply only in so far as and to the extent to which they are not excluded by such special or local law, and the remaining provisions of this Act shall not apply.
It is clear from the last words of this provision that sections 6, 7 and 8 of the Limitation Act, which provide for the reckoning of the period of limitation in eases where a minor is required to institute a suit or to make an application, have not been applied at all to suits or applications made under the provisions of the Maihar State Quanoon Mal. This conclusion can be supported on the authority of many decided cases. (1) In Balkrishna Laxman v. Bala and Another 46 IC 879, the question of applicability of section 6 of the Limitation Act in the context of the C. P. Land Revenue Act (No. 18 of 1881) was considered and it was held by the learned Additional Judicial Commissioner that section 6 of the Limitation Act prima facie applies only to the period of limitation prescribed in the Schedule of the Limitation Act and it had no application to a suit brought u/s 69, sub-section 4 (1) of the C. P. Land Revenue Act, the limitation for which is provided in the subsection itself. (2) In Madho Rao Ghatate v. Balaji Narayan AIR 1926 Nag. 236, the words :- the remaining provisions of this Act shall not apply" occurring in section 29 of the Limitation Act, were considered by the Court and they were interpreted to mean in the sense that the remaining provisions of the Act shall not apply, unless they are expressly made applicable to the special or local Act. (3) In Namdeo v. Liamji and others S. A. No. 345 of 1949, decided on 1-2-1955 (1955 NLJ 271.), the facts were that a suit was brought for possession of an occupancy field on 1-3-1947. The field was sold by the defendant on 21-3-1942 and the plaintiff who brought the suit attained majority on 17-7-1945. The claim was held to be barred by limitation on the ground that it was governed by Article I of Schedule II of the Tenancy Act which prescribed a period of 3 years for bringing the suit. The provisions of sections 6 and 7 were held to be inapplicable and it was held that the plaintiff could not get the benefit of his minority.
The provisions of sections 6 and 7 were held to be inapplicable and it was held that the plaintiff could not get the benefit of his minority. (4) In Shiv Prasad v. Siddh Nath and Others AIR 1955 VP 43, the provisions of the Rewa Act referred to above were required to be considered and it was observed in paragraph 5 of the judgment, that in view of section 29 of the Limitation Act, the provisions of section 6 extending limitation in cases of a legal disability were inapplicable. (5) In a recent case of the Allahabad High Court, reported in Chandra Pal Vs. Board of Revenue, U.P. and Others, , the same question arose for consideration in the context of section 183 of the V.P. Tenancy Act (Act No. XVII of 1939). The provisions of section 183 correspond to the provisions of section 134 of the Rewa Act, the only difference being that instead of the word "Pawaidar" as used in the Rewa Act, we have the word "Landholder" in section 183 of the V.P. Act. In all other respects, the provisions are identical. In the Allahabad case, the facts were that the applicant was ejected when he was a minor in 1953, from his holding. On attaining majority, he filed a suit for possession u/s 183 of the U. P. Tenancy Act. He claimed that the period of limitation for the suit began on the date on which he attained majority. In other words, he claimed the benefit of section 6 of the Limitation Act. On the disposal of the suit as barred by limitation, the plaintiff filed a writ petition challenging the decision of the Board of Revenue. It was held that the U. P. Tenancy Act being a special or local law laying down its own period of limitation for the suits brought under it, sections 6 and 29 of the Limitation Act had no application unless they were made applicable, and in that view, the claim of the plaintiff was held to be barred by limitation. The principle which is clearly deducible from the cases discussed above is that in the present case, the plaintiffs are not entitled to any benefit of the provisions made in sections 6 and 29 of the Limitation Act. The learned counsel for the respondents, however, urged that there was distinction between ejectment and dispossession.
The principle which is clearly deducible from the cases discussed above is that in the present case, the plaintiffs are not entitled to any benefit of the provisions made in sections 6 and 29 of the Limitation Act. The learned counsel for the respondents, however, urged that there was distinction between ejectment and dispossession. The provisions of section 112 of the Maihar State Quanoon Mal only dealt with the case of tenant who was ejected from his holding, but did not apply to one who was dispossessed. However, I am unable to persuade myself to accept the correctness of this argument. The ordinary meaning of the word "eject" according to Muray's dictionary is to expel or drive out from place or possession. A suit for ejectment or dispossession is always a suit against the person in possession. Thus the remedy provided by section 112, in my view, applies to relief of possession on dispossession. The words "ejected from" as used in section 112 of the Maihar State Quanoon Mal are words of wide import, and include the case of every dispossession, beyond the provisions of the Act. Shri Dabir, the learned counsel for the respondents, next urged that section 112 of the Maihar State Quanoon Mal has application only in case of disputes between a tenant on the one hand, and Pawaidar on the other, when the Pawaidar ejected the tenant in his capacity as Pawaidar. I do not find any justification to limit the scope of the said section by the further condition that the Pawaidar must have ejected the tenant in his capacity of his being the Pawaidar. If the facts found by the Court are that the tenant is ejected by his Pawaidar, in my opinion, the case plainly falls within the language of section 112 and would be governed by it. Another contention raised by Shri Dabir, is that it was for the civil Court to adjudicate between the rival claims of the landlord and tenant and the Revenue Court was not authorised to declare, while trying an action u/s 112, on the title of the tenant. Again I am unable to agree. The adjudication of title, in my opinion, is implicit in the provisions of section 112. The Deputy Commissioner cannot possibly award possession of the holding without deciding that the tenant was entitled to get it back.
Again I am unable to agree. The adjudication of title, in my opinion, is implicit in the provisions of section 112. The Deputy Commissioner cannot possibly award possession of the holding without deciding that the tenant was entitled to get it back. Further, section 119 of the Maihar State Quanoon Mal which corresponds to section 145 of the Rewa Act reproduced above, clearly authorises the tenant of a holding to apply to the Revenue Officer during the continuance of his tenancy for a declaration of his right as a tenant etc. Thus, there is no substance in the contention that the tenant cannot get a declaratory relief with regard to his tenancy rights in the Revenue Court. The next point for consideration is, as to whether the suit could be entertained by the civil Court. It was contended on behalf of the respondents that the exclusion of the jurisdiction of the civil Court could not be too readily inferred. In this connection, the principles stated by their Lordships of the Privy Council in AIR 1940 105 (Privy Council) were referred to. Shri Dabir, the learned counsel for the respondents, urged that the scheme of the Act seems to be that the remedy u/s 112 of the Maihar State Quanoon Mal was of a summary nature and it left intact the remedy of a suit. I, however, do not agree. It has been clearly provided in the Explanation to section 304 of the Maihar Quanoon Mal which corresponds to the Explanation u/s 338 (1) of the Rewa Act, that if in respect of the cause of action, adequate relief might be granted by a Revenue Court or Officer it is immaterial that the relief asked for from the civil Courts may not be identical with that which a Revenue Court or Officer could have granted. Section 304 bars the entertainment by a civil Court of all suits or applications which may be decided by the Durbar or a Revenue Officer or a Revenue Court under the Act. The provisions made in this section are identical with the provisions made u/s 242 of the U. P. Tenancy Act. The effect of the provisions made is clearly to give exclusive jurisdiction to Revenue Courts as regards suits and applications of the nature specified in the Act.
The provisions made in this section are identical with the provisions made u/s 242 of the U. P. Tenancy Act. The effect of the provisions made is clearly to give exclusive jurisdiction to Revenue Courts as regards suits and applications of the nature specified in the Act. It is the substance of the relief sought and not the mere form in which the case is preferred in the plaint, that must be looked into in order to determine the proper forum for the trial of the action. [See Raja Udairoj Singh v. The Secretary of State for India in Council AIR 1924 All. 652]. If it appears after examination of the plaint, the frame and the nature of the suit and the relief claimed, that a Revenue Court can legitimately grant relief, such relief being one of those relief's, which it is competent to grant, considering the provisions of the Act, the Revenue Court must be held to be having exclusive jurisdiction. In my opinion, the object of the present suit was to establish the plaintiffs' right to the tenancy and that being the matter within the exclusive jurisdiction of the Revenue Court, the suit could not be entertained by the civil Court. The Revenue Courts have exclusive jurisdiction for determining all questions about tenancy rights between pawaidar and the tenant and to settle all disputes about ejectment from the holding, under the Maihar State Quanoon Mal. Thus, in my opinion, this appeal succeeds, and the suit must fail both on the ground that it is barred by limitation, as well as on the ground that it was not entertainable by a civil Court. The appellant shall be entitled to her costs in all the Courts. Counsel's fee, according to schedule. Final Result : Allowed