Bechu v. Board of Revenue — 1966 DIGILAW 238 (ALL)

JUDGMENT Satish Chandra, J. - Finding it difficult to accept the view expressed by K. B. Asthana, J. In Ram Jiawan Koeri v. Board of Revenue, 1966 R.D. 52 S.N. Singh, J. has referred the following question to a Bench: "Whether a suit for a declaration of co-tenureholdership can be maintained under Sec. 229-B of the U.P. Zamindari Abolition and Land Reforms Act ?" 2. The writ petition arises out of a suit under Sec. 229-B of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter called the Act). The plaintiffs alleged that the holding in dispute was acquired by the common ancestor of the parties and was ancestral. The plaintiffs have been, under a private partition, in possession of a one-half share in the holding but the revenue papers do not record the names of the plaintiffs over this holding and the defendants have refused to get the papers corrected. Hence the suit. They prayed for a declaration that the plaintiffs along with the defendants are in possession as sirdars of the holding and the plaintiffs names should be recorded as sirdars along with the defendants. In defence, the plaintiffs title was completely denied. The defendants claim that they were the sole sirdars and are in possession to the exclusion of the plaintiffs. 3. The trial court upheld the defence and dismissed the suit:. On appeal the learned Additional Commissioner reversed the findings. He held that the plaintiffs had proved the pedigree and that the plaintiffd were in possession. On these findings the suit was decreed. The defendants went up in second appeal. The Board of Revenue upheld the finding and dismissed the appeal. Aggrieved, the defendants came to this Court under Article 226 of the Constitution. 4. At the hearing a completely fresh point was raised before the learned single Judge. It was urged that a suit for a declaration of co-sirdari rights was not covered by Sec. 229-B of the Act and as such the present suit was incomplete in the revenue court. The learned single Judge was not impressed by the decision of another learned single Judge in the case of Ram Jiawan, 1966 R.D. 52 and that is how the question mentioned above has been referred. 5. Sec. 229-B of the Act provides for suits for declaration of rights of tenure- holders. The learned single Judge was not impressed by the decision of another learned single Judge in the case of Ram Jiawan, 1966 R.D. 52 and that is how the question mentioned above has been referred. 5. Sec. 229-B of the Act provides for suits for declaration of rights of tenure- holders. In order to appreciate the scope of this provision it is proper to consider its legislative history. In the province of Agra, under the N. W. P. Rent Acts of 1873 and 1888, a tenant, if his rights were denied, had to go to the civil court for a declaration of his rights as a tenant. But if the fact of tenancy was admitted and the dispute related to the class to which the tenancy related, suits, lay in the revenue court under Sec. 10 of those Acts. See Mohammad Abu Jafar v. Wali Mohammad, LLR 3 All. 81. The same position obtained in Oudh under the Oudh Rent Act, 1886; Mohammad Abdul Hasan Khan v. Ram Autar, 3 OLJ 267 U.P. Act 13 of 1939 added sub-Cl. (13-b) to Sec. 108 of the Oudh Rent Act 1886. By it suits "For a declaration of right as a tenant" became cognizable by the Revenue Court. Sec. 95 of the Agra Tenancy of 1901 conferred on the revenue courts jurisdiction in respect of suits for declaration as to whether a person was a tenant or not. 6. This provision was interpreted to over suits between landholders and tenants alone. It was held that suits using the question 'who is the tenant of the holding, `or' does the tenancy belong to the plaintiff or to the defendant do not raise a question between the tenant and landholder alone; they involve a third person and as such suits were outside the purview of Sec. 95. See Bhoop v. Ram Lal, 8 ALJ 1009 and Jagannath v. Ajodhya Singh, 10 ALJ 408. These lacunae were removed by Sec. 121 of the Agra Tenancy Act, 1926. Under that section a tenant could sue a landlord and also any person claiming through him or a declaration of his rights as a tenant. Thus suits raising various questions relating to the nature and terms or the quality and quantity of tenancy as against persons claiming under the landholder became variable under Sec. 121. 7. Under that section a tenant could sue a landlord and also any person claiming through him or a declaration of his rights as a tenant. Thus suits raising various questions relating to the nature and terms or the quality and quantity of tenancy as against persons claiming under the landholder became variable under Sec. 121. 7. The criteria laid down by this Section were whether the plaintiff claimed as a tenant and whether the defendant was alleged to be holding through the landholder. If the defendant was not so alleged, but was in the plaint treated as a trespasser the suit would be outside Sec. 121. Barring this, there was no other imitation. A suit where both parties claim the tenancy to the exclusion of the other, raises the question who is the tenant. A suit where several plaintiffs claim that they are the tenants and not the defendants, arises the same question who are the tenants. The third class of cases where the plaintiff says that he and the defendant both are the tenants, raises the very same question "who are the tenants", or, in other words, "who are the holders of the tenancy." All such cases are of the same nature and will be covered by the same provision. In Ram Pratap Singh v. Chhotey Lal Singh, AIR 1929 Allahabad 269 the plaintiff claimed a declaration that he was a tenant along with the defendants to the extent of bigha and biswa in the holding as this portion was allotted to him under a private partition. The defendant denied this and claimed to be the sole tenant. The facts are thus similar to the present case. It was held by a Division Bench, that the defendant by assertion sole title to the tenancy was claiming through the landholder. The plaintiff wanted a declaration of his rights as a tenant to a part of the holding under a private arrangement. A claim was in that case made by a joint tenant. He did not want his legal share to be declared. In substance he wanted the private partition to be recognised and declared. It was held that the suit lay under Sec. 121 of the Agra Tenancy Act 1926. This case shows that a joint tenant could sue for a declaration of the nature and extent of his rights in the holding under Sec. 121. In substance he wanted the private partition to be recognised and declared. It was held that the suit lay under Sec. 121 of the Agra Tenancy Act 1926. This case shows that a joint tenant could sue for a declaration of the nature and extent of his rights in the holding under Sec. 121. The dispute may be as to who are the co-tenants (e.g. on the death of a co-tenant several persons may claim co-tenancy as heirs) or as to the extent of the shares of the co-tenants. All such questions relate to the rights in a tenancy and if arising between persons claiming under the landholder, fall within the scope of Sec. 121. In Bhagwan Sahai v. Ram Chandra, AIR 1928 Allahabad 693 the plaintiff claimed a particular share in a joint holding. The defendant conceded the plaintiff a smaller share; the Division Bench held that such a declaratory suit fell under Sec. 121. It was held that a co-tenant was also a person claiming through the landholder and could be sued under Sec. 121. It was also held that even though a suit for division of holding was provided for by Sec. 37 of the Agra Tenancy Act, 1926, yet a declaratory suit also was maintainable in the revenue court. 8. The Board of Revenue, on the other hand, in Anmol Pandey v. Ramlal, 1936 R. D. 371 held that where a specific share was claimed in a joint holding the title could well be decided in a partition suit under Sec. 37 and as such a mere declaratory suit was meaningless and incompetent. 9. This limited controversy was set at rest by the U.P. Tenancy Act 1939. The legislature accepted the High Court's view. In Sec. 59 it added a clause permitting a declaration of a share in a joint tenancy. The background of this change shows that this addition was made not with a view to limit or restrict the scope, but to make explicit what was implicit in the provision. Namely, to make it clear that a share in a joint tenancy could also be the subject of a declaration. The parties need not, per force sue for division of the holding when the only dispute was as to the extent of shares, and not separation of possession. Namely, to make it clear that a share in a joint tenancy could also be the subject of a declaration. The parties need not, per force sue for division of the holding when the only dispute was as to the extent of shares, and not separation of possession. The intention was not to confine the applicability of Sec. 59 to suits relating to joint tenancy in which the plaintiff claims a declaration as to his share in the holding. The plaintiff may claim that he is the sole tenant. The defendant may, on the other hand, contend that he is a co-tenant with the plaintiff. Such a suit will lie under Sec. 59 because the plaintiff was claiming exclusive tenancy. A suit where the plaintiff himself alleges that he is a co-tenant along with the defendant is of the same nature, namely, a declaration of his rights as a tenant of the holding and will be maintainable under Sec. 59 of the U.P. Tenancy Act. 10. Sec. 229-B of the Act is practically a reproduction of Sec. 59 of the U.P. Tenancy Act with a few verbal alterations which do not affect the scope of the section. Its area of operation is the same as that of Sec. 59 Sec. 229-B as it stood after its amendment by the U.P. Land Reform (Amendment) Act, 1956 reads as follows: "229-B (1) Any person claiming to be an asami either exclusively or jointly with any other person may sue the landlord .... (a) for a declaration that he is an asami of the holding, or (b) for a declaration of his share therein. (2) . . . . . . . (3) . . . . . . ." 11. By sub-Sec. (3), this section has beer made applicable to bhumidhars an sirdars? It was suggested in argument that a suit by a person claiming to be an asami exclusively can only be under Cl. (a) of sub-Sec. (1) for a declaration that he is an asami of the holding, and, a suit by a person claiming to be an asami jointly with any other person will lie under Cl. (b) alone for a declaration of his share therein. It was submitted that a joint tenureholder can only sue for a declaration of his share in the holding. We find it difficult to accept this submission. (b) alone for a declaration of his share therein. It was submitted that a joint tenureholder can only sue for a declaration of his share in the holding. We find it difficult to accept this submission. This interpretation emasculates the area of operation of the section. In view of the legislative history of this provision, it is clear that the legislature intended to make a complete provision for declaration of rights of the mentioned classes of tenure holders by this provision. It did not make provision, for only specified classes of suit for declaration of rights of tenureholders. The legislature has been over the decades constantly enlarging the jurisdiction of the revenue courts so as to bring all disputes of title of tenureholders within the purview of a single tribunal, namely, the revenue court. In our opinion Cl. (a) sub-Sec. (1) embraces within itself a suit by a joint tenure-holder for a declaration that he is also a tenure-holder of the holding. In the instant case, the plaintiff alleges that he is a sirdar in possession of one-half share under a private arrangement between the parties. He wanted a declaration that the revenue papers should record the plaintiff as sirdar. Such a suit was clearly within the jurisdiction of the revenue court under Sec. 229-B of the Act. 12. For the petitioner reliance has been placed upon the decision of a learned Single Judge of this Court in Ram Jiawan Koeri's case, 1966 R.D. 52. There suit was filed for a declaration that the plaintiff was the sole sirdar of the disputed plots under a private partition. The defence was that under the private partition the disputed plots had fallen to the defendant's share. The finding was that the plaintiff has failed to prove private partition set up by him. The Board of Revenue treated the suit to be for a declaration of co-tenancy rights and having found that the parties were joint tenants granted a declaration to that effect. The main basis of the judgment of Asthana, J. in that case was that the suit having been confined only to some plots and not relating to the entire holding of the parties, a declaration of joint tenancy could not be given. On the facts, no quarrel can be had with the decision of the learned Single Judge. The main basis of the judgment of Asthana, J. in that case was that the suit having been confined only to some plots and not relating to the entire holding of the parties, a declaration of joint tenancy could not be given. On the facts, no quarrel can be had with the decision of the learned Single Judge. The learned Judge has, however, made certain observations as to the jurisdiction of the revenue court and also on the point that a claim of exclusive right is different and distinct from a claim of joint rights. We do not find ourselves in agreement with these observations. Whatever distinction may exist between the two kinds of claims in jurisprudence, a suit for a claim of exclusive tenancy rights is in pith and substance similar to a claim of joint tenancy from the point of view of Sec. 229-B both are provided for therein and the same Revenue court entertains both of them. 13. Learned counsel for the petitioner has also placed reliance upon a decision of this Court in Rameshwar v. Ram Asre, 1956 ALJ 677. This case affords no help to the petitioner. It goes against him. According to this decision, if the plaintiff has a grievance against the village records which are maintained by the State Government and the Gaon Samaj, the suit will lie in the revenue court under Sec. 229-B. In the instant case the plaintiffs main grievance is that though they are consirdars in possession, the revenue records do not exhibit this state of affairs. According to this decision the present suit will lie in the revenue court under Sec. 229-B of the Act. 14. Our answer to the question referred is in affirmative. Let the papers be returned to the learned Single Judge with this opinion and answer.