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1963 DIGILAW 249 (ALL)

Baiju v. Shambhu Saran

1963-10-10

M.C.DESAI, R.S.PATHAK

body1963
JUDGMENT R.S. Pathak, J. - . This is a defendant's appeal arising out of a suit for injunction and in the alternative for possession. 2. The plaintiff Shambhu Saran instituted the present suit, alleging that he was a Khudkasht holder of certain plots, Baiju had, in Patwari, got his revenue records of those entries possession. 3. The defendant contested the suit asserting, inter alia, that he was in possession as a tenant, that the plaintiff was never in possession, and that the court had no jurisdiction to try the suit. 4. The trial court dismissed the suit but the lower appellate court allowed the plaintiff's appeal and decreed the suit for injunction. The defendant now appeals to this Court. The appeal was heard by our learned brother Dhavan, who being of the opinion that there was a conflict between the decision of this Court in Syed Mohd. Zahir Hasan v. Dulare, 1953 A.L.J. 399 and Kailash Chand Mital v. Ramji Lal, A.I.R. 1955 N.U.C. 2729 and certain other decisions, referred it to a larger Bench. Another question raised before him was whether the rights acquired by an Adhivasi under Sec. 20 of the U.P. Zamindari Abolition and Land Reforms Act could override the rights of a Bhumidhar under Sec. 18 of that Act. 5. It is urged before us that the civil court had no jurisdiction to entertain the suit, by reason of Sec. 242 of the U.P. Tenancy Act, that upon the facts of the case it was clear that the plaintiff must seek a declaration as to his title, and therefore, the suit was one in which a relief could be granted by the revenue court. 6. Sec. 242 of the U.P. Tenancy Act provides inter alia that no court other than a revenue court can take cognizance of any suit or application "based on a cause of action in respect of which any relief could be obtained" by means of a suit or application of the nature specified in the Fourth Schedule to that Act. 7. We have recently had occasion to consider the scope of this provision in First Appeal From Order No. 378 of 1958 (decided on July 23, 1963) and have explained how the question of jurisdiction arising upon the provisions of Sec. 242 should be determined. 7. We have recently had occasion to consider the scope of this provision in First Appeal From Order No. 378 of 1958 (decided on July 23, 1963) and have explained how the question of jurisdiction arising upon the provisions of Sec. 242 should be determined. It was observed: "What is barred by Sec. 242 is the jurisdiction of a civil court to entertain a suit based upon a cause of action on which any relief can be obtained from a revenue court. It is important to note that it is the nature of the cause of action that has accrued in the plaintiff's favour that bars the jurisdiction of a civil court; if the cause of action is of such a nature that some relief can be obtained from a revenue court the plaintiff is compelled to go to the revenue court and is debarred from going to a civil court. What is material to the question whether he can go to a revenue court or a civil court is the nature of the cause of action that has accrued, i.e., the nature of the facts on the basis of which he is compelled to file a suit and not what he sets up as, or claims to be, the cause of action or the facts. If the facts in dispute between him and the defendant are such that he can get a relief from a revenue court he is compelled by Sec. 242 to go to the revenue court to seek the relief that can be granted by it. Naturally when he goes to the revenue court he will draft the plaint in such a way that the revenue court will entertain it and grant the relief asked for. The forum is decided by the cause of action that accrues and once it is decided it is for the plaintiff to draft the plaint in such a way that the forum will entertain it and grant the relief that he can get from it. It is not open to him by concealing the cause of action or a part of it or misstating it or part of it to oust the jurisdiction which the law has fixed. It is not open to him by concealing the cause of action or a part of it or misstating it or part of it to oust the jurisdiction which the law has fixed. If according to the cause of action as has accrued he must sue in a revenue court it is not open to him by concealing or misstating the cause of action or a part of it to sue in a civil court. The forum is fixed by the law and is not left to be fixed by the plaintiff according to his choice or volition. As the forum is fixed by the law it follows that he must draft the plaint according to the forum, i.e., he must state the cause of action fully and truly. Another fact to be noticed is that the actual relief that is asked for by the plaintiff is irrelevant to the question whether the suit will lie in a revenue court or a civil court; this is made clear by the explanation added to Sec. 242, U.P. Tenancy Act. What is material is not the relief actually sought by the plaintiff but the relief that can be sought by him if he is so minded. If he can get a relief from a revenue court he must go to the revenue court; there is no alternative for him and he cannot go to a civil court by changing the relief or asking for a different relief which cannot be granted by a revenue court. It is irrelevant to consider whether the relief actually sought by him can be granted by a revenue court or not; if on any cause of action that has accrued he can get some relief from the revenue court, section 242 obliges him to go to the revenue court seeking the relief that can be granted by it." 8. The essential question that arises upon the provisions of Sec. 242 is whether the plaintiff had any cause of action on which he could obtain any relief from a revenue court (if he had, he cannot approach a civil court), and not whether on the particular cause of action selected by him he could get any relief from a revenue court. The prohibition contained in Sec. 242 is inconsistent with the plaintiff enjoying a choice or freedom in respect of the cause of action to be sued upon. The prohibition contained in Sec. 242 is inconsistent with the plaintiff enjoying a choice or freedom in respect of the cause of action to be sued upon. The forum depends not on the plaintiff's choice of a particular cause of action but on the facts which constitute various causes of action. The words in Sec. 242 are not "the cause of action" but "a cause of action"; therefore, if on any cause of action which has accrued relief can be had from a revenue court, the jurisdiction of a civil court is absolutely barred. The question is always whether there is any such cause of action. It is a question of fact depending upon what has happened. 9. In Jagnarain Mallah v. Bhagwauti Prasad Pandey, 1957 A.L.J. 783 a Division Bench, of which one of us was a member, considered the true interpretation of Sec. 242 at some length. The meaning of the expression "cause of action" in Sec. 242 was fully considered and it was held that the forum in which the suit should be filed must be determined by the real cause of action and not by the allegations which the plaintiff may choose to make as the basis of his plaint. The forum, it was observed, is determined by the cause of action that has already accrued. A full Bench of this Court in Yar Muhammad v. Lakshmi Das, 1958 A.L.J. 628 (F.B.) considered the decision in Jagnarain Mallah's case, 1957 A.L.J. 783 and disagreed with it, but principally, it appears, on the conclusion arrived at by the learned Judges in the latter case that the ban imposed by Sec. 242 of the U.P. Tenancy Act on a civil court to entertain a suit includes a suit under Sec. 9 of the Specific Relief Act. The Full Bench was of the opinion that the jurisdiction of the civil court was not arced by Sec. 242 of the U.P. Tenancy Act in respect of a suit filed under Sec. 9 of the Specific Relief Act. The decision was rendered on the basis that in a suit under Sec. 9 of the question of title did not arise for determination at all and the dispute between the parties necessitated an inquiry merely into the question of possession. The decision was rendered on the basis that in a suit under Sec. 9 of the question of title did not arise for determination at all and the dispute between the parties necessitated an inquiry merely into the question of possession. It was observed: "In a suit under Sec. 9 of the Specific Relief Act, the only thing which it is necessary for the plaintiff to prove, if traversed, is that he was in possession, that he was dispossessed, that dispossession took place otherwise than in accordance with law and that it took place within six months of the suit. No other facts need be alleged or proved. These facts alone can, therefore, be considered to constitute the entrie cause of action for a suit under Sec. 9 of the Specific Relief Act . . . . In a suit of that kind, therefore, if a plaintiff comes to court only with these allegations and no other it cannot be said that he has come to Court with an incomplete cause of action. Considering the nature of actions enumerated in the Fourth Schedule of the Tenancy Act it is obvious that on these facts alone the plaintiff cannot expect to get any relief from the revenue court." 10. Once that conclusion was arrived at, it was not possible to hold that Sec. 242 of the U.P. Tenancy Act imposed any bar to the institution of the suit in a civil court. The Full Bench, so far as we can gather, did not essentially disagree with the observations in Jagnarain Mallah's case, 1957 A.L.J. 783 to what should be the true interpretation of the provisions of Sec. 242, and that is apparent from the passage quoted above. In fact, at another place in its judgment it observes: "It is true that no plaintiff can be permitted to confer jurisdiction on one court or to oust the jurisdiction of another court by making incomplete or twisted allegations." What is significant is that when it proceeded to decide the issue it relied largely on the consideration that in a suit of the nature before it, namely, a suit under Sec. 9 of the Specific Relief Act, it could not be said that any relief was permissible from the revenue court. 11. There is no material inconsistency between the decision in Yar Muhammad v. Lakshmi Das (F.B.) (supra) and Syed Mohd. 11. There is no material inconsistency between the decision in Yar Muhammad v. Lakshmi Das (F.B.) (supra) and Syed Mohd. Zahir Hasan's case, 1953 A.L.J. 399 (supra). In Syed Mohd. Zahir Hasan's case, the only relief claimed by the plaintiff was the grant of a permanent injunction restraining the defendant from taking possession. But the facts of the case arose out of an action in respect of which relief could be clearly claimed in a suit under Sec. 60 of the U.P. Tenancy Act. It was, therefore, held that the prohibition under Sec. 242 of that Act was attracted. In Kailash Chand Mital's case (supra) it was observed that the nature of a suit was determined by looking to the broad features of the cause of action on which the suit was based and the relief was claimed, that the cause of action for the suit should not be confused with the relief claimed, the relief not being part of the cause of action but merely a sequence flowing from the cause of action. It was held that as it was not necessary, upon the facts of that particular case, to make clear in the plaint in what capacity the defendant was claiming possession, the suit did not fall under any of the entries in the Fourth Schedule to the Tenancy Act. The facts in this case were clearly distinguishable from those in Syed Mohd. Zahir Hasan's case, 1953 A.L.J. 399. 12. Reference was made to the decision of our brother Beg in Ishwar Din v. Ch. Mohd. Ishaq, 1952 A.L.J. 202. It was held in that case that the question of jurisdiction was to be determined initially by the allegations contained in the plaint which the court was obliged to accept as correct for the purpose of entertaining the suit. It was held that as the plaintiff did not allege that the defendants were claiming title as tenants the suit would not lie under the U.P. Tenancy Act. With respect, we find ourselves unable to agree with all that has been said in this case. 13. Jurisdiction certainly depends upon the statements contained in the plaint, but when reference is made to Sec. 242 the question which must be considered is not which court has jurisdiction according to the plaint, but which court has jurisdiction according to the facts in the case. 13. Jurisdiction certainly depends upon the statements contained in the plaint, but when reference is made to Sec. 242 the question which must be considered is not which court has jurisdiction according to the plaint, but which court has jurisdiction according to the facts in the case. If according to the facts in the case a revenue court can grant relief, it is the revenue court which the plaintiff must approach with an appropriate plaint. The revenue court would then have jurisdiction according to the plaint itself. The rule that jurisdiction depends upon the plaint does not confer upon the plaintiff freedom to assert any facts which he chooses, and Sec. 242 certainly does not give him that freedom. 14. Sec. 242 would be rendered meaningless and unnecessary if it only barred a suit in a civil court on a plaint containing a cause of action on which a revenue court could grant relief. No plaintiff approaching a civil court would draft his plaint in such a way as to snake out a case cognizable by a revenue court. If he goes to a civil court, he will naturally draft his plaint so as to make out a case not cognizable by a revenue court. The contents of Sec. 242 can be given meaning only if courts insist upon the plaintiff going to a revenue court when on any of the facts that constitute the various causes of action in his favour there is one set of facts constituting a cause of action within the jurisdiction of a revenue court. 15. In the present case, it appears to us that the question which falls to be decided is whether the plaintiff had title to the plots in suit, and, therefore, it arises upon a cause of action in respect of which a relief could have been claimed in a revenue court. That being so, the civil court, in which the suit was brought, had no jurisdiction to entertain it and, therefore, the objection of the defendant must be upheld. 16. In this view of the matter, it is not necessary to express any opinion on the other questions raised before us. 17. The appeal is, therefore, allowed, the decree of the lower appellate court is set aside and the plaint is directed to be returned to the respondent for presentation to the proper court. 16. In this view of the matter, it is not necessary to express any opinion on the other questions raised before us. 17. The appeal is, therefore, allowed, the decree of the lower appellate court is set aside and the plaint is directed to be returned to the respondent for presentation to the proper court. The defendant shall be entitled to his costs in this Court.