Vansh Bahadur Singh v. Kamla Singh — 1966 DIGILAW 87 (MP)

ORDER 1. This revision is directed against an order of remand whereby the Additional District Judge, Rewa, has set aside the judgment and decree of the trial Court and has remanded the case to it for proceeding under Section 221 of the Vindhya Pradesh Land Revenue and Tenancy Act, 1933 (hereinafter called the Act). 2. The petitioner's suit is for declaration of the, possession and mandatory injunction in respect of certain land, which was released in favour of the defendant in proceedings under Section 145, Criminal Procedure Code. The plaintiff claims to be a tenant and therefore, entitled to its possession. The relationship of the parties is as follows:- Raghunandan Singh, Daulatsingh, Bishesarsingh and Mst. Kailsuwa are all dead. The plaintiff's case is that as the land belonged to Raghunandan Singh, he is the sole tenant and entitled to possession of the suit land. 3. The defendant's case is that Raghunandan Singh and Bajrangsingh were joint. Daulatsingh separated in the life time of Raghunandan Singh. Thereafter, Raghunandan Singh, Bajrangsingh and Mst. Kailsuwa became joint tenants, although the settlement Patta was in the name of Raghunandan Singh alone. Raghunandan Singh gave the suit land to the defendant as a Shikmi (sub-tenant). 4. The suit was instituted on 20 December 1958. It was dismissed on 12 November 1959. The plaintiff appealed. His appeal was allowed and the case was remanded for a fresh trial. This time, a decree was passed in favour of the plaintiff. The defendant took an appeal, which has been disposed of by the learned Additional District Judge, Rewa, by the order under revision. He bas held that an issue relating to sub tenancy ought to have been framed and that issue should have been referred by the Civil Court to the Revenue Court under Section 221 of the Vindhya Pradesh Land Revenue and Tenancy Act, 1953. As this was not done, he has set aside the judgment and decree of the trial Court and ordered a remand to it with the direction that the record should be submitted to the revenue Court for the decision of that issue only and thereafter to decide the suit afresh. 5. Section 221 (1) of the Vindhya Pradesh Land Revenue and Tenancy Act reads thus:- "221. 5. Section 221 (1) of the Vindhya Pradesh Land Revenue and Tenancy Act reads thus:- "221. When civil Courts to refer issue to revenue Courts-(1) If in any suit relating to an agricultural holding instituted in a civil Court the defendant pleads that he holds such land as a tenant or a sub-tenant of the plaintiff, the civil Court shall frame an issue about the plea of tenancy or sub-tenancy and submit the record to the appropriate revenue Court for the decision of that issue only." The other sub-sections of that section provide for the procedure to be followed subsequent to the reference. 6. The first question is whether the defendant's plea really falls within the purview of section 221 of the Act. It is contended by Shri G.P. Singh, learned counsel for the plaintiff, that before the procedure under section 221 of the Act can be resorted to, it must be shown that the defendant bas pleaded that he holds such land as a tenant or sub-tenant of the plaintiff. The argument is that in the present case the defendant has not pleaded that he is a sub-tenant of the plaintiff. His plea is that he was a sub-tenant of Raghunandan Singh. The learned Additional District Judge has relied on the explanatory provision contained in section 2 (2) of the Act. It runs thus:- "All words and expressions used to denote the possessor of any right, title or interest in land shall be deemed to include predecessors and successors in right, title or interest of such person." In my opinion, this explanation is of no avail to the defendant. This explanation is confined to "words and expressions" which are used in the Act to denote "the possessor of any right, title or interest in the land." This explanation obviously applies to a person who is "possessor" of any right, title or interest; for instance, grove holder, Pachpan-plaintalis tenant. Pattedar tenant, special tenant, sub-tenant and tenant, as defined in Section 2 (1) clauses VIII, XV, XVI, XXIV, XXVII & XXVIII respectively. This explanation has no reference to the words "plaintiff" and "defendant" as they are not words or expressions used to denote the possessor of any right, title or interest. This is not to say that if the defendant was a sub-tenant of the plaintiff predecessor-in-title, he Gould not avail himself of that right against toe plaintiff. 7. This explanation has no reference to the words "plaintiff" and "defendant" as they are not words or expressions used to denote the possessor of any right, title or interest. This is not to say that if the defendant was a sub-tenant of the plaintiff predecessor-in-title, he Gould not avail himself of that right against toe plaintiff. 7. Shri G.P. Singh endeavors to draw a distinction between (1) the substantive right of the sub-tenant to continue in possession of the land as sub-tenant of the plaintiff on the ground that the relationship of sub-tenancy was created by the predecessor-in-title of the plaintiff and his right continue, against the plaintiff, by virtue of the rights and liabilities of the predecessor vis-a-vis the defendant, having devolved on the plaintiff and (2) applicability of the provisions contained in Section 221 of the Act, which is procedural and which is confined to a particular plea only. The argument is that in Section 221 of the Act, the word plaintiff cannot be read so as to include the predecessor-in-tile of the plaintiff. Before Section 221 of the Act can apply, the plea must strictly fall within the ambit of the Section. In my opinion, this contention cannot be accepted. When the defendant pleads that by virtue of the sub-tenancy created by the plaintiff's predecessor-in title he is not labile to be ejected from the suit land, really and essentially the plea is that at the time of the suit, the defendant is the plaintiff's sub-tenant and for that reason he cannot be ejected. In the present case, although the defendant has not said in so many words that he is now the sub-tenant of the plaintiff, the written statement read as a whole und undoubtedly contains that plea. 8. It is then contended for the plaintiff that the plea was abandoned by the defendant. The basis for this argument is that when issues were initially flamed on 2 March 1959 and again two more issues were added on 6 May 1959 and yet again when one more issue was framed on 3 December 1960 in pursuance of the first remand order, the defendant did not, on any of these occasions, request the Court to frame an issue on the plea of sub-tenancy. The objection that such an issue had not been framed was raised for the first time in appeal from the decree, which was passed against the defendant by the trial Court after the first remand. In my opinion is true that it was the duty of the defendant to have asked the Court to frame that issue, which was material for the determination of the rights and liabilities of the parties in the suit, but it cannot be denied that it was primarily the duty of the Court to frame an issue on that vital question. Shri G.P. Singh argues that since the defendant raised the plea of sub-tenancy recklessly and he knew that he would never be able to substantiate. It on all those occasions he kept quiet and did not move the Court to frame an issue on that plea. He raised the objection for the first time in the appellate Court with the only object of delaying and protracting the litigation. I would express no opinion on that statement at this stage. The fact remains that the plea was vital and since I do not hold that the plea was abandoned, that issue has to be framed and tried. The penalty for the defendant's omission to raise the objection at the appropriate stage is that he is disentitled to costs. 9. This brings me to the question as to the forum, whether it is the civil Court which wm try that issue or whether the issue has to be referred to the revenue Court under Section 221 of the Act. The learned Additional District Judge has held that the issue must be referred to the Revenue Court and has relied on Bajrang Bali Singh vs. Shriman Kunwari 1964 RN 62=1963 JLJ SN 279=1964 MPLJ 29. In my opinion he is not right and the decision is not opposite. The Vindhya Pradesh Land Revenue and Tenancy Act, 1953, was repealed, during the pendency of this suit, by the Madhya Pradesh Land Revenue Code, 1959, (hereinafter called the Code), which came into force on 1 October 1959. After the first remand as already stated, the trial Court framed an additional issue on 3 December 1960 and decided the suit on 6 March 1961. The issue relating to sub-tenancy is now to be framed and tried. After the first remand as already stated, the trial Court framed an additional issue on 3 December 1960 and decided the suit on 6 March 1961. The issue relating to sub-tenancy is now to be framed and tried. In the 1959 Code, which is now in force, there is no provision corresponding to Section 221 of the 1953 Act. Although on the date of the commencement of the suit, the 1953 Act was in force, the provisions contained in Section 221 being procedural, cannot now govern the present suit. The Act of 1953 having been repealed during the pendency of the suit, its procedural provisions, excepting so far as they are saved under Section 262 of the 1959 Code, cease to apply to a pending suit. The general principle is well known that alterations in procedure are retrospective, unless otherwise provided for. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being for the Court in which he sued. And, if the legislature alters that mode or procedure, he has no other right than to proceed according to the altered mode. An enactment dealing with procedure applies to pending actions, unless a contrary intention is expressed or clearly implied. (See Maxwell, 11th Edition, pages 216-17 and Craies, 6th Edition, page 400) 10. This brings me to the question whether the procedure laid down in section 221 of the 1953 Act is saved under section 262 of the 1959 Code. My answer is in the negative. The first sub-section of S. 262 saves from the application of the provisions of the 1959 Code only such cases as are pending before the "State Government" or "any revenue Court". The present suit was not pending either before the State Government or any revenue Court. Sub-section (2) is also inapplicable to this case. That subsection applies to a case, which, at the coming into force of 1959 Code, was pending in a Civil Court but which under the 1959 Code is exclusively triable by the revenue Court. The present suit is not exclusively triable by the Revenue Court under the 1959 Code. On this analysis, the provisions contained in Section 221 of the 1953 Act ceased to apply to the present suit with effect from 1 October 1959, when the 1959 Code came into force. The present suit is not exclusively triable by the Revenue Court under the 1959 Code. On this analysis, the provisions contained in Section 221 of the 1953 Act ceased to apply to the present suit with effect from 1 October 1959, when the 1959 Code came into force. The decision in Bajrang Bali Singh vs. Shriman Kunwari (supra) is clearly distinguishable. There, an application had been made before the Tahsildar on 15 January 1959, for restoration of possession of certain land under Section 215 of the Vindhya Pradesh Land Revenue and Tenancy Act, 1953. That application was dismissed on 24 October 1959 by the Tahsildar. On appeal the Collector directed the Tahsildar to refer the matter to the Civil Court under section 220 of the Act for decision on certain questions. Then a question arose whether the Civil Court had jurisdiction to entertain the reference after the coming into force of the Madhya Pradesh Land Revenue Code, 1959. It was held by the Division Bench that the reference under section 220 should have been entertained by the civil Court and the finding with the record returned to the revenue Court. The Civil Court could not refuse to adjudicate on a reference properly made by the Revenue Court. The Division Bench observed:- "Here, as the proceedings were governed by the Act of 1953, the revenue Court was competent to make a reference to the Civil Court under Section 220 and the Civil Court was bound to decide the issues referred to it." To me it seems quite clear that that case fell within the purview of the saving (transitory) provisions contained in section 262 of the 1959 Code because that case was pending before a revenue Court when the 1959 Code came into force, so that it had to be decided in accordance with the provisions of the 1953 Act, "which would have been made applicable to them had this Code not been passed." Section 220 of the 1953 Act enacted, so to say, provisions converse of those contained in Section 221. Section 221 provided for a reference to be made by the civil Court to the Revenue Court, while section 220 provided for a reference by the Revenue Court to the civil Court by virtue of section 262 (1) of the 1959 Code. Section 220 of the 1953 Act continued to apply to cases pending before the Revenue Court. Section 221 provided for a reference to be made by the civil Court to the Revenue Court, while section 220 provided for a reference by the Revenue Court to the civil Court by virtue of section 262 (1) of the 1959 Code. Section 220 of the 1953 Act continued to apply to cases pending before the Revenue Court. But as already pointed out. Section 221 of the 1953 Act, ceased to govern a case pending in the civil Court with effect from 1 October 1959. 11. The result of the above discussion is that a new issue has to be framed on the plea of sub-tenancy and it is to be tried by the civil Court itself. Since the issue was not framed in the trial Court, the appropriate provisions to be resorted to are those contained in Order 41, Rule 25. Civil Procedure Code. The order of the appellate Court, setting aside the decree of the trial Court, cannot be sustained. 12. The revision is allowed. The order, dated 23 December 1965 passed by the Additional District Judge, Rewa, setting aside the judgment and decree of the trial Court is set aside. Civil Appeal No. 22-A of 1961 shall now be sent back to the Court of the Additional District Judge, Rewa. The record of the trial Court in civil suit No. 25-A of 1960 shall now be sent to it (i.e., Civil Judge, Mauganj District Rewa) under Order 41 Rule. 25, Civil Procedure Code, with the direction to take evidence of the parties on the following issue and to return, within three months from the date it receives the record, the evidence to the appellate Court (Additional District Judge, Rewa) together with its finding thereon and the reasons therefore. "Whether Raghunandan Singh sublet the suit land to the defendant and sub-tenancy subsisted until his death." Parties shall bear their own costs in this revision.