Mahabir Prasad v. Bhaggoo — 1965 DIGILAW 141 (ALL)

JUDGMENT J. Sahal, J. - This special appeal by Mahabir Prasad and Punnu Lal (Defendants) is directed against the judgment of Balram Upadhva, J., dated 8-11-1957, allowing second appeal No. 684 of 1958, filed by the Respondents Srimati Bhaggoo, Srimati Shyam Kumari, wife of Murari Lal, Srimati Shyam Piari, wife of Bulaqi Lal and Srimati Bindo. 2. The appeal arises out of a suit No. 478 of 1946 filed in the court of the Munsif West, Allahabad, by the Respondents. The property which is the subject matter of the suit is an enclosed piece of land, measuring two bighas and two biswas in area, having on it three residential apartments, a pucca well, a mali's quarter and a grove or orchard. The suit was filed by the Respondents on the allegation that they had engaged the Appellants as servants to work as gardeners (malis) on condition that they would rear times in the garden, take hall of the produce for themselves and give the remaining half to the Respondents. The following issues were framed by the trial court: 1. Whether the Plaintiff is the owner of the grove in dispute? 2. Was the house built by the Defendant's ancestors? Have the Defendants become its owner by adverse proprietary possession of over 12 years? 3. Whether any valid notice to quit has been given? 4. What was the annual rent and how much of it is due? 5. Whether the Defendants are permanent lessees? 6. To what relief, and subject to what conditions, if any, is the Plaintiff entitled? 3. In the written statement no plea was taken challenging the jurisdiction of the civil court to try the suit. The Munsif decreed the suit with costs on 10.3.1948. Against the decree of the learned Munsif, dated 10.3.1948, Civil Appeal No. 57 of 1948 was filed in the court of the District Judge, Allahabad. During the course of arguments before the learned Civil Judge to whom the appeal had been transferred one of the questions raised was that the trial court had no jurisdiction to try the suit in as much as it was exclusively cognizable by a revenue court. That submission prevailed with the learned Civil Judge, who allowed the appeal on 26.3.1951. second Appeal No. 684 of 1951 was filed by the Respondents against the decree passed by the learned Civil Judge. That submission prevailed with the learned Civil Judge, who allowed the appeal on 26.3.1951. second Appeal No. 684 of 1951 was filed by the Respondents against the decree passed by the learned Civil Judge. As stated earlier, Balram Upadhya, J. set aside the decree passed by the learned Civil Judge and substantially restored that of the learned Munsif Before Balram Upadhya, J. the following two submissions were made: (a) That the Defendant Appellant were the sub-tenants of the land in dispute; and (b) that the civil court had no jurisdiction to try the suit. No other submission was made before the learned single Judge. The two questions in fact are inter connected and the real question for decision in the case before us is whether or not the civil court had jurisdiction to entertain and try the suit. On behalf of the Defendants-Appellants the following four submissions were made to justify the argument that the revenue court to the exclusion of the civil court had jurisdiction to try the suit: 1. That the suit was clearly maintainable u/s 171 of the U.P. Tenancy Act, being a suit against a sub-tenant; 2. that the suit would lie in the revenue court because the status of the Defendant-Appellants was that of occupancy tenants; 3. that the suit clearly lay u/s 180 of the U.P. Tenancy Act; and 4. that the suit lay u/s 148 of the U.P. Tenancy Act. The submissions made on behalf of the Appellants clearly reveal that they themselves are not sure under what provisions of the U.P. Tenancy Act the suit giving rise to the present appeal could lie. At different stages of the arguments they have been relying upon different provisions of the U.P. Tenancy Act in support of their contention that the civil court had no jurisdiction to try the suit. We would take the submissions seriatim. 4. Section 171 of the U.P. Tenancy Act cannot apply for the simple reason that in the present case there is no question of any tenant transferring or sub letting the whole or any portion of his holding. Actually Mr. K.P Sinah, the brief holder of Mr. G.P. Bhargava, has submitted before us today that the argument based on Section 171 U.P.T.A. is withdrawn We need not therefore pursue this part of the submission of the learned Counsel any further. 5. Actually Mr. K.P Sinah, the brief holder of Mr. G.P. Bhargava, has submitted before us today that the argument based on Section 171 U.P.T.A. is withdrawn We need not therefore pursue this part of the submission of the learned Counsel any further. 5. The suit giving rise to this appeal had been filed on the allegations that the Defendants Appellants were the servants (malis) of the Plaintiff Respondents and that in lieu of the monthly salary they were to receive half of the produce, that the Plaintiffs Respondents did not want to have their services any longer and for that reason have dismissed them from service; but the Defendants-Appellants are holding over. Section 163, U.P. Tenancy Act cannot apply because the present suit is not one for recovery of rent and the Plaintiffs-Respondents do not admit that the Defendants Appellants are their tenants. A suit u/s 163, U.P. Tenancy Act can be filed only against a tenant and not against a servant. It is well settled that the forum for the trial of a suit would be determined on the basis of the allegations made in the plaint. Inasmuch as the suit giving rise to this appeal has not been filed on the allegation that the Defendants-Appellants are the tenants of the Plaintiffs-Respondents and that they are in arrears of rent, the suit clearly would not lie u/s 163 of the U.P. Tenancy Act. We, therefore, overrule the second submission of the learned Counsel. 6. Before we deal with the third submission, which is regarding the applicability of Section 180 of the U.P. Tenancy Act, we would like to dispose of the fourth and the last submission of the learned Counsel. It has been contended that the present suit is one u/s 148 of the U.P. Tenancy Act. That section provides for the recovery of rent by a landholder or by a landlord from his tenant. We have already pointed out while dealing with the second submission of the learned Counsel for the Appellants that it is not the Plaintiffs' case that the Defendants Appellants are their tenants. Nor is the suit one for recovery of rent. Consequently, in our judgment, the suit giving rise to this appeal could not lie u/s 148 U.P.T.A. either. 7. The only submission that remains to be considered is: whether the suit would fall u/s 180 of the U.P. T.A. That section reads: 180(1). Nor is the suit one for recovery of rent. Consequently, in our judgment, the suit giving rise to this appeal could not lie u/s 148 U.P.T.A. either. 7. The only submission that remains to be considered is: whether the suit would fall u/s 180 of the U.P. T.A. That section reads: 180(1). A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law tor the time being in force, shall be liable to ejectment under this section on the suit of the person so entitled, and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants; Provided that, notwithstanding the provisions of Sub-section (1) of Section 246, where such a person taking or retaining possession is one of the co-sharers whose joint consent is required to bring such suit, he shall not be required to join as Plaintiff in the suit. In such a case, the decree passed in favour of the Plaintiff shall be deemed to be in favour of all such co-sharers. (2) If no suit is brought under this section, or if a decree obtained under this section is not executed, the person in possession shall become a hereditary tenant of such plot, or if such person is a co-sharer, he shall become a Khud-kasht holder, on the expiry of the period of limitation prescribed for such suit or for the execution of such decree, as the case may be: Provided that where the person in possession cannot be admitted to such plot except as sub-tenant by the person entitled to admit, the provisions of this Sub-section shall not apply until the interest of the person so entitled to admit is extinguished in such plot u/s 45(1). In order to make the provisions of Section 180 U.P.T.A. apply the following are essential: 1. The suit must be in respect of a plot of land. 2. It must be filed by a person entitled to admit the Defendant to occupy such plot. 3. The occupation of the Defendant must be otherwise than in accordance with law. 4. The suit must be filed within the period of limitation prescribed. The suit must be in respect of a plot of land. 2. It must be filed by a person entitled to admit the Defendant to occupy such plot. 3. The occupation of the Defendant must be otherwise than in accordance with law. 4. The suit must be filed within the period of limitation prescribed. The first and foremost question to consider in the present case would be whether the property in respect of which the suit giving rise to this appeal has been filed is "a plot ot land'' within the meaning of Section 180 U.P.T.A. 'Land' has been defined in Section 3(10) U.P. T.A. as follows: In this Act, unless there is something repugnant in the subject or context: 'Land' means land which is let or held for growing of crops, or as grove-land or for pasturage. It includes land covered by water used for the purpose of growing singhara or other produce, but does not include land for the time being occupied by buildings or appurtenant thereto other than building which are improvements." In order to be 'land' it must first be a land which is held for growing of crops, or as grove land or for pasturage; and secondly, it must not be a land which is occupied by buildings or appurtenant thereto other than building which are improvements. There is no dispute and in fact there can be none on the point that the word 'improvements' means improvements made by a tenant in his holding and obviously it does not mean building erected by the land-holder or the landlord or the proprietor of the land. We have already said earlier that the land in dispute is enclosed by a boundary wall, with in the precincts of which there are three residential quarters built by the Plaintiffs. The area of the enclosed land is two bighas and two biswas. It is situated within the limits of the Municipality of Allahabad in a residential and commercial quarter (mohalla) known as Himmatganj. It would also be seen that the word used is 'let'or 'held'. 'Let' obviously means let out to a tenant. 'Held' means held by a tenant. In other words, the land contemplated by Section 180, U.P. Tenancy Act is the land which is agricultural in nature and is either let out or is meant to be let out to or held by a tenant. 'Let' obviously means let out to a tenant. 'Held' means held by a tenant. In other words, the land contemplated by Section 180, U.P. Tenancy Act is the land which is agricultural in nature and is either let out or is meant to be let out to or held by a tenant. The word 'held' has not been defined in the Act, but the word 'holding' has been defined in Clause (7) of Section 3 of the U.P. Tenancy Act as follows: 'holding' means a parcel or parcels of land held under one lease, engagement or grant, or in the absence of such lease, engagement or grant under one tenure and in the case of a thekadar includes the theka area." Therefore, the word 'held' connotes the idea of there being a holding which a tenant holds; and it is in that sense that the word 'held' has been used in the definition of 'land' given in Section 3(10) of the U.P. Tenancy Act. For the reasons mentioned above, we are clearly of the opinion that the land in dispute is not land as contemplated by Section 180 of the U.P. Tenancy Act. We find support for this view from another circumstances. Originally, the word u/s 180 of the U.P. Tenancy Act were "without the consent of the landholder"; but those words have been replaced by the words "without the consent of the person entitled to admit him as tenant," thus bringing in the idea of land capable of being held by a tenant. Some support for our con-clusion can also be derived from the words "taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot" occurring in Section 180 of the U.P. Tenancy Act. It would be noticed that throughout the U.P. Tenancy Act the worid "occupy" or 'occupation' has been used with regard to the possession of a tenant. The reason is obvious. The word 'possession' connotes not only physical occupation of a property or a piece of land, but also dominion or control over it. 'Occupation', on the other hand, means the right to occupy or to cultivate or to use the land. The landlord can be in possession of a plot of land even though the same is in the occupation of a tenant. 'Occupation', on the other hand, means the right to occupy or to cultivate or to use the land. The landlord can be in possession of a plot of land even though the same is in the occupation of a tenant. The mere right to cultivate does not and cannot amount to possession. It would be noticed that originally the word used in Section 180 was 'possession' and not 'occupy'. It was by means of Act X of 1947 that the word 'occupy' has been used in substitution of the word 'possession'. Lastly, we get some support for our view from Sub-section (2) of Section 180 of the Act. It is true that in some cases it has been held that the two provisions are not completely interlinked. However, it is clear that the consequence of not bringing a suit u/s 180, U.P. Tenancy Act, within the period of limitation prescribed is to confer on the trespasser the status of a hereditary tenant. Admittedly, in the present case the Defendants Appellants could not acquire the status of a hereditary tenant, the land being grove land. Section 30 of the U.P. Tenancy Act clearly provides that notwithstanding anything in Section 29, hereditary rights shall not accrue in "groveland, pasture land or land covered by water and used for the purpose of growing singhara or other produce. Lastly, the Defendant in an action u/s 180, U.P. Tenancy Act must be one who either obtains possession or retains possessions otherwise than in accordance with law. The expression 'law' is not confined to the provisions of the U.P. Tenancy Act The Plaintiffs have still not been dispossessed. It cannot be said that the Defendants have ousted the Plaintiffs from possession or they are in possession to the exclusion of the Plaintiffs. According to the plaint allegations, the Defendants-Appellants are interfering with the Plaintiff's possession. Consequently, it cannot be said that the Defendants-Appellants have either entered possession or are retaining possession of the land in dispute. Besides, having got on to the land in dispute as Plaintiff's servants, it cannot be said that the Defendants entered possession otherwise than in accordance with law. Consequently, it cannot be said that the Defendants-Appellants have either entered possession or are retaining possession of the land in dispute. Besides, having got on to the land in dispute as Plaintiff's servants, it cannot be said that the Defendants entered possession otherwise than in accordance with law. There is good authority for the proposition that land to which somebody cannot be admitted as a tenant, even though used for the purpose of a grove, would not be land within the meaning of Section 180, U.P. Tenancy Act (See Baba Mahadeo Das v. Satyandra Kumar (1) 1952 AWR 607 (FB). For the reasons mentioned above, we are of the opinion that the land in dispute is not land as contemplated by Section 180, U.P. Tenancy Act. Section 9, CPC provides that all suits of a civil nature are cognizable by a Civil court except those which are either expressly or by necessary implication prohibited from being tried by a civil court. It is settled law that unless it can be shown that a suit would lie in this revenue court or some other special court, the jurisdiction of the civil court does not stand barred. It is equally well settled that the bar to the jurisdiction of a civil court cannot be readily inferred and that it. must either be express or clear by necessary implication. We have already held above that neither Section 171 nor Section 163 nor Section 148 nor Section 180 of the U.P. Tenancy Act would apply to the facts of the case before us. Consequently, there is no escape from the conclusion that the civil court had jurisdiction to try the suit. This Court in D.N. Rege v. Kazi Muhammad Haider and Anr. (2) 1946 AWR 403 (FB) had occasion to consider as to in what circumstances a suit would lie in a revenue court. Allsop, J. who delivered the judgment on behalf of Full Bench, laid down the following two tests: (a) jurisdiction of a court depends upon the allegations made in the plaint and not upon the defence set up; and (b) if the claim relates to a tenancy and not to proprietary rights, the suit would be cognizable by a revenue court and not by a civil court. In the persent case, the plaint allegations clearly reveal that it was the suit by a master against his servants for the removal of the servants from the premises and the grove as also for the return of certain amount of money which the servants received in their hands by virtue of being the servants of the Plaintiffs. The plaint allegations as also the pleas raised in the written statement filed by the Defendants-Appellants reveal that no question of tenancy whatsoever was involved. We have said earlier that the Plaintiffs-Respondents gave no higher status to the Defendants Appellants than that of mere servants and we would like to point out here that the Defendants-Appellants also did not claim to be tenants, but to be the proprietors of the plots in dispute by virtue of adverse possession. Thus no question of tenancy was involved howsoever remotely in the present case. The Plaintiffs came with the clear allegation that the Defendants were servants who were holding over and were not getting out, as ordered by the Plaintiffs who were the masters. The case of the Defendants was that they themselves had become the masters by virtue of adverse possession. Consequently, a pure question of proprietary right was involved in the suit; and for that we are clearly of the opinion that the present case falls within the rule laid down by Allsop, J. in D.N. Rege's case (2). We also find some support for our view from the decision of the erstwhile Chief Court of : Oudh in Husaini v. Ghazi (3) (1943 AWR 18), where it was held by that Court that if a suit is for the ejectment of a trespasser from land occupied by him, it would be cognizable by a civil court and not by a revenue court. 8. For the reasons mentioned above, we are of the opinion that there are no merits in this special appeal and the suit was rightly tried in a civil court. The special appeal is, therefore, dismissed with costs.