Tihli Ahir v. Jagdish Chaube — 1964 DIGILAW 430 (ALL)

Judgement J. SAHAI, J. - On leave being granted, this special appeal has been filed by Thihli and Ram Dhan Ahirs against the judgment of Balram Upadhya, J. dated 22-1-1960. It will contribute to a clear understanding of the question raised before us if the following facts are given : 2. Jagdish Chaube, son of Jamuna Chaube, respondent no. 1 to this appeal, filed the suit giving rise to this appeal on the allegation that plot no. 125 measuring 1.93 acres, situate in village Basharakpur in the district of Azamgarh, appertains to Khewat Khata no, 3 of which he and the defendants 2nd set are co-sharers and proprietors. The defendants 2nd set are Aditya Prasad, Brij Behari Prasad, Damodar Prasad, Baleshwar Prasad, Vishwanath Prasad and Munshi Jugul Kishore, and the defendants 1st set are Thihli Ahir, Ram Dhan Ahir, Ram Dhari Ahir. Smt. Sonwarsa Kuar, Kanta Ahir and Ram Chander Ahir. According to the allegations of Jagdish Chaube, the defendants 1st set attempted to disturb his as also that of the defendants 2nd sets possession over the plot in dispute. He, therefore, claimed the relief of a permanent injunction restraining the defendants 1st set from interfering with his possession. In the alternative, he prayed that if he be not found in possession a decree for possession over the plot in dispute or the grove be passed. The defendants 1st set contested the suit, inter alia, on the ground that Jagdish Chaube, had no right or title in the grove or plot in dispute, that they had planted trees over the plot in dispute about 22 or 23 years preceding the date of the filing of the suit and had been in possession since then, that the plaintiff and the defendants 2nd set had not planted any tree in the plot in dispute and the defendants 1st set were grove-holders of a portion of plot No. 125 measuring 400 Karis in area, and that the compromise in a previous suit viz. Suit No. 82 of 1940 was valid and binding. It was also pleaded Shat the suit was not cognizable by the civil court and in any case, the suit was barred by limitation. Suit No. 82 of 1940 was valid and binding. It was also pleaded Shat the suit was not cognizable by the civil court and in any case, the suit was barred by limitation. The learned Munsif held that Jagdish Chaube was the proprietor of the grove or the plot in dispute that the defendants 1st set were not the grove holders of that plot or any portion thereof, and further that the compromise in Suit No. 82 of 1948 was illegal and inoperative and conferred no right on the defendants 1st set. Molding further that the suit was not barred by limitation and that the civil court had jurisdiction to entertain it, he decreed the suit of Jagdish Chaube. On appeal the decision was affirmed by the learned Civil Judge, Azamgarh. Against the decree of the learned Civil Judge Second Appeal No. 93 of 1952 was filed in this Court which was heard by Balram Upadhya, J. and dismissed on 22-1-1960, as stated earlier. 3. It may be mentioned that in 1946 the father of Jagdish Chaube, Jamuna Chaube and the defendants 2nd set filed Suit No. 82 of 1946 against the defendants 1st set in the present case in the Court of the Munsif, Azamgarh, for a declaration that they had proprietary rights over the grove or the plot in suit, Jamuna Chaube made an application, apparently under Or. 23, R. 1 C.P.C. for withdrawing from the suit and for permission to file another suit. That application was allowed, and the suit proceeded between the defendants 2nd set and the defendants 1st set. The matter was compromised and the defendants 2nd set accepted the defendants 1st set to be the, grove-holders of the land or the grove in dispute. It was thereafter that the suit giving rise to this special appeal was filed. 4. That application was allowed, and the suit proceeded between the defendants 2nd set and the defendants 1st set. The matter was compromised and the defendants 2nd set accepted the defendants 1st set to be the, grove-holders of the land or the grove in dispute. It was thereafter that the suit giving rise to this special appeal was filed. 4. The learned Single Judge, the first appellate court and the trial court decided against the appellants on the following two grounds : (1) that the decree in Suit No. 82 of 1946 did not confer any right on the defendants 1st set in the plot or grove in dispute, because such a right could be acquired not under a decree but under the provisions of Sec. 205 of the Act; and (2) that inasmuch as Jamuna Chaube, the father of the present plaintiff-appellant Jagdish Chaube, did not join in the compromise, there was a contravention of the provisions of Sec. 246 of the Act, with the result that the compromise was not a valid one and could not confer any rights on the defendants 1st set. 5. We have heard Sri Mukhtar Ahmad. for the appellants, and Sri R.B. Misra, for the plaintiff-respondent Jagdish Chaube. The first question that we would like to consider, and which has been debated at considerable length before us, is whether the provision of Sec. 246 of the Act would operate in the present case and would govern the compromise arrived at in Suit No. 82 of 1946. That provision reads; "246. (1) Except as otherwise provided in Sub-Sec. (3) or in Sec. 245, where there are two or more co-sharers in any tight, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly, unless they have appointed an agent to act on behalf of all of them. (2) Nothing in Sub-Sec. (1) shall affect any local usage or special contract by which a co-sharer in an undivided property is entitled to receive separately the whole or his share of the rent payable by a tenant. (3) When one or two or more co-sharers is not entitled to sue alone and the remaining co-sharers refuse to join as plaintiffs in a suit for money recoverable by them jointly, such co-sharers may sue separately for his share joining the remaining co-sharers as defendants. (3) When one or two or more co-sharers is not entitled to sue alone and the remaining co-sharers refuse to join as plaintiffs in a suit for money recoverable by them jointly, such co-sharers may sue separately for his share joining the remaining co-sharers as defendants. (4) Where the tenant of a holding or the illegal transferee of such tenant is also a co-sharer in the proprietary right in such holding, nothing in this section shall require him to be joined as plaintiff in any suit or application brought or made against him as such tenant or illegal transferee under the provisions of this Act." It is clear that that provision can apply only to "things required or permitted to be done". Obviously, the things required or permitted to be done are those which are required or permitted to be done under the Act. This is the admitted position in the present case. The question, therefore, that arises for consideration is whether it was necessary for Jamuna Chaube also to have joined in the compromise which was effected in Suit No. 82 of 1948 between the defendants 2nd set and the defendants 1st set. Obviously the suit having been filed in the civil court was one contemplated by Sec. 9 C.P.C., and admittedly if would be provisions of the Civil Procedure code that would govern the proceedings in that suit. Under the provisions of Civil Procedure Code the parties could compromise under O. 23. Actually Jamuna Chaube himself had resorted to that provision to withdraw from the suit with permission to file another. The act of compromise or adjustment of the claim was, therefore, one performed under the provisions of the Civil Procedure Code, and was not one required or permitted to be done by the Act. Section 246 of the Act, therefore, could not have been applicable to the proceedings before the learned Munsif in Suit No. 82 of 1946, and could not have governed the compromise arrived at in that suit between the defendants 2nd set and the defendants 1st set. It is trite that the Act regulates the relations of the landlord and the tenant and not proprietary rights of the landlords inter se. It is trite that the Act regulates the relations of the landlord and the tenant and not proprietary rights of the landlords inter se. Its Preamble reads : "Whereas it is expedient to consolidate and amend the law relating to agricultural tenancies, proprietary cultivation and other matters connected therewith in Agra and Oudh : It is hereby enacted as follows :" its title reads : "This Act may be called the United Provinces Tenancy Act, 1939." The Preamble, the title of the Act and the provisions of S. 246 of the Act leave no room for doubt that the compromise arrived at in Suit No. 82 of 1940 could not be, and was not, governed by the provisions of S. 246 of the Act. Consequently we are unable to uphold the submission of Sri R.B. Misra that the compromise was invalid because Jamuna Chaube had not joined in it. In fact Jamuna Chaube having withdrawn from the suit could not have joined in it both in law and also in fact. 6. With regard to the second point, we would like to reproduce Ss. 205 and 206 of the Act. They run as follows : "205. A person who has planted a grove - (a) On land which was let or granted to him by a landlord, for the purpose of planting a grove ; (b) with the written permission of the landlord, or in accordance with local custom entitling him to do so, on land which he held as a tenant other than as a sub-tenant, a permanent tenure-holder, or a fixed-rate tenant, or a tenant holding on special terms in Oudh or an occupancy tenant in Oudh; shall be grove-holder of such grove : Provided that where the permission was granted in Agra before the 7th day of September, 1926, and in Oudh prior to the commencement of this Act, the permission need not have been in writing and may have been either express or implied. "206. Notwithstanding anything in this Act, custom or contract to the contrary- (a) the rights of a grove-holder shall, subject to the provisions of clauses (a) and (b) and clauses (d) to (f) or S. 45, which shall apply to grove-holders as they apply to tenants, subsist so long as grove-land retains its character as such. "206. Notwithstanding anything in this Act, custom or contract to the contrary- (a) the rights of a grove-holder shall, subject to the provisions of clauses (a) and (b) and clauses (d) to (f) or S. 45, which shall apply to grove-holders as they apply to tenants, subsist so long as grove-land retains its character as such. On the land ceasing to be grove-land the holder shall become a hereditary tenant of such land; (b) a grove-holder may replant trees as they are cut or die and any person who is recorded, as a grove-holder of any land on the 1st day of July, 1937, and is in possession thereof at the commencement of this Act may replant trees thereon within three years of the commencement of this Act : (c) the interest of a grove-holder shall be transferable by voluntary transfer or in execution of a decree of a Civil or Revenue Court or otherwise ; (d) the interest of a grove-holder shall devolve according to the personal law applicable to him: (e) while the land continues to be grove-land, a grove-holder shall be liable to ejectment on one of the grounds mentioned in S. 172, and the provisions of S. 157, S. 159, S. 160, S. 162, S. 173, S. 174, Ss. 181 to 183, S. 185 and S. 188 shall apply to him as if he were a tenant; (f) the provisions of Ss. 49, 59 to 64 and of Chapter VII and of clause (a), (b), (d) and (e) of S. 256 and of Ss. 237 to 240 shall apply to grove-holders as they apply to tenants, except that the provisions of S. 148 shall apply only to the extent to which they refer to the recovery of rent by suit; (g) where a person becomes a grove-holder in respect of land of which he is a tenant, he shall hold such land as grove-holder in supersession of all subsisting rights and liabilities so far as they are inconsistent therewith." 7. We have already said earlier that the Act deals with relations between the landlord and the tenant, and it is in matters relating to tenancies which fall within the scope of that enactment, and the rights of landlords inter se in respect of proprietorship matters do not fall within the purview of the Act. We have already said earlier that the Act deals with relations between the landlord and the tenant, and it is in matters relating to tenancies which fall within the scope of that enactment, and the rights of landlords inter se in respect of proprietorship matters do not fall within the purview of the Act. Clause (b) of S. 205 speaks of "with the written permission of the landlord." A plain reading of the two provisions in the context of the scheme of the Act clearly reveals that the grove-holder contemplated by these provisions is the tenant grove-holder and not a proprietor or proprietors having a proprietary grove. In Suit No. 82 of 1946 as also in the one giving rise to this appeal, it was the admitted case of the plaintiffs that the grove or plot in dispute was the proprietary grove and not the grove of a tenant with which Ss. 205 and 208 of the Act deal. The purpose of these two provisions was to confer on tenants some larger rights in respect of plots they held, and the law permitted them to acquire grove-holders' rights. We have clearly said that those provisions do not and cannot apply to the case of the proprietors in respect of a proprietary grove. The result therefore is that there was no application of Ss. 255 and 208 of the Act in the present case and, with great respect to the learned single Judge we are of the opinion that he was in error when he dismissed the appeal on the finding that the defendants 1st set did not acquire grove-holders' rights because they did not do so in the manner provided by Ss. 205 and 206 of the Act. We would like to point out that it was open to the defendants 2nd set, who, according to Jagdish Chaube and his father Jamuna Chaube were the proprietors of the grove in dispute, to alienate their share in that grove in any manner they liked, and we are not aware of any restriction on their right to have compromised with the defendants 1st set in respect of their rights in the grove in dispute. It is obvious that they could not compromise away the rights of Jamuna Chaube or Jagdish Chaube but they certainly could deal with their own share in the grove in dispute in many manner they liked Nothing has been pointed out to us to justify the conclusion that under O. 23. R. 1, Civil P. they could not have compromised the matter in respect of their share and that when they did so compromise, no rights were conferred on the defendants 1st set. 8. The result therefore, is that we allow this appeal, set aside the judgment of Balram Upadhya, J. dated 22-1-60. in which the decrees of the first appellate Court and the trial Court have merged, and dismiss the suit and modify the decrees passed by the Courts below to this extent that the suit will stand decreed only to the extent of Jagdish Chaube's share in the grove in dispute. In other words, the injunction would operate only to the extent of the share of Jagdish Chaube in the grove in dispute, and with regard to the share belonging to the defendants 2nd set, the defendants 1st set would not be restrained. In the circumstances of the case the parties will bear their own costs. Appeal allowed.