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Abdul Aziz and anr. Vs. Walikhan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All338
AppellantAbdul Aziz and anr.
RespondentWalikhan
Excerpt:
.....lessor--suit for compensation--civil court--revenur court--jurisdiction--act xviii of 1873 (n.w.p. rent act, section 95, clause (m). - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which..........and for recovery of the land can proceed pari passu.6. 'tenant' has not been defined in the rent or revenue acts, though 'landholder' has been defined to be the person to whom a tenant is liable to pay rent, and rent is whatever is to be paid, delivered, or rendered by a tenant on account of his holding, use or occupation of land. in act xviii of 1871, an act for the levy of rates on land in the north-western provinces, tenant is described as any person using or occupying land and liable to pay rent thereof, and land means land used for agricultural purposes, or waste land which is cultivable. again, in the rent act there is no distinction made between a tenant holding on a pattah, which is the ordinary term for a ryot's lease and a thikadar katkinadar, or other lessee holding for.....
Judgment:

Pearson, Turner and Oldfield, JJ.

1. The appellants took a lease of several villages from the respondents, and they allege that, after the lease had been acted upon the respondent in breach of the conditions of the lease collected the rents and profits which in virtue of the lease appertained to the appellants, and they have instituted the present suit to recover the sums actually collected. The respondent pleaded that the claim was virtually one for damages for wrongful dispossession, and therefore could not form the subject of an application in the Revenue Court. To this the appellants have replied that the Rent Act does not apply to persons who in these Provinces are known as thikadars or katkinadars, and in the old Regulations and Acts are denominated under-tenants, persons who take from the zamindars lease of their zamindari rights in lands.

2. Although no express mention of this class under any of the particular designations by which they are ordinarily known may be found in the Bent Act, when their position in relation to the lessors is regarded they are unquestionably tenants, and they arc not deprived of this character because in relation to the actual cultivators of the whole or some parts of the property leased they may be described as landlords. They hold an intermediate estate in the property leased which the proprietors have as it were carved out of their own estate; they hold the property leased under the proprietors; the payments they make to the proprietors are rent, and fall within the definition of that term in the Rent Act; and therefore, although all the sections of the Rent Act may not apply to such lessees, but some arc restricted in their operation to particular classes of tenants, the persons whose position we are considering are not the less subject to those provisions of the Act which apply to tenants of all classes. Before the last Rent Act was passed it was not doubted that the class of thikadars was competent to sue and liable to suit in the Revenue Courts; and inasmuch as the intention of the framers of the Rent Act was to extend rather than curtail the jurisdiction of the Revenue Courts, the presumption favours the construction that the general provisions of the Rent Act apply to this equally with all other classes of tenants, save those who by the proviso to the first section are excluded from the operation of the Act.

3. There remains then the question raised by the respondent's plea that the Civil Courts are not competent to entertain the suit by reason of the provisions of Section 95 of the Rent Act. Although the suit is brought not to obtain damages for illegal dispossession, but to recover moneys which the appellants allege were payable to them tinder their lease, and which have boon wrongfully collected by the respondent in breach of the provisions of the lease, it is clear that on an application for compensation for wrongful dispossession it would be incumbent on the Revenue Court to award compensation for wrongful collections actually made, as well as for the other profits which the lessees might have enjoyed had their possession not been disturbed; and it is also clear that by making collections in breach of the lease, the respondent disturbed the possession of the lessees. The 95th section of the Act prohibits Courts other than the Revenue Courts from taking cognizance of any dispute or matter on which an application of the nature mentioned in that section might he made. One of the applications mentioned in that section is an application for compensation for wrongful dispossession, and inasmuch as under such an application the appellants could obtain what they now claim, it must be held that the jurisdiction of the Civil Courts is ousted, and that the appellants can obtain relief only in the Revenue Court.

Spankie, J.

4. I cannot think that the provisions of Clause (m), Section 95 of Act XVIII of 1873, are applicable to the case referred to Rs. I regard the clause as applying to the ordinary tenant or agricultural ryot paying rent for the use or occupation of land, and not to the lessee of an entire estate for a fixed term of years as the plaintiff is, or rather was, in the case before Rs. The application for compensation on account of wrongful dispossession referred to in Clause (m) must be brought within six months from the date of the wrongful dispossession, and the compensation applied for must refer to some loss or injury already suffered by the applicant, and not to the loss of profits in future year.

5. The plaintiffs were the lessees of several villages and aver that two years before their lease expired they were dispossessed by the lessor, who appropriated the collections of those two years. But for the wrongful ejectment, the lessees would have made the collections on account of those two years. They waive any claim, if they had one, for compensation under Clause (m), Section 95 of Act XVIII of 1873, and sue to recover in a Civil Court the sums actually collected by the defendant in breach of the terms of the contract between them. In such a suit the Collector could not give to the plaintiffs all the relief prayed for the compensation claimable under Clause (m) is for an injury that has already accrued in consequence of the wrongful dispossession, loss of seed sown, or of crop, or otherwise, on account of the harvest immediately following the wrongful dispossession. The ordinary tenant has no claim for compensation on account of future years; for under Clause (n), Section 95 of the Act, he can at once claim recovery of occupancy of the land from which he has been wrongfully dispossessed. So that the claim for compensation for the loss already sustained and for recovery of the land can proceed pari passu.

6. 'Tenant' has not been defined in the Rent or Revenue Acts, though 'landholder' has been defined to be the person to whom a tenant is liable to pay rent, and rent is whatever is to be paid, delivered, or rendered by a tenant on account of his holding, use or occupation of land. In Act XVIII of 1871, an Act for the levy of rates on land in the North-Western Provinces, tenant is described as any person using or occupying land and liable to pay rent thereof, and land means land used for agricultural purposes, or waste land which is cultivable. Again, in the Rent Act there is no distinction made between a tenant holding on a pattah, which is the ordinary term for a ryot's lease and a thikadar katkinadar, or other lessee holding for a term of years a portion of an estate, or the whole of it. Any one to whom the entire estate is leased is, for the term of his lease, placed in the position of the owner as regards the ordinary agricultural tenants of that estate. A lessee of this character does not fall within the provisions of Section 24, 25, 26, or 27 of Act XVIII of 1873, for all other tenants mentioned in Section 27 must be those tenants who do not pay at fixed rates, and who are not proprietary and occupancy tenants, i.e., they must be tenants without a right of occupancy: for the only classes of tenants recognized by Section 10 are--first, tenants at fixed rates; secondly, ex-proprietary tenants; thirdly, occupancy tenants; fourthly, tenants without a right of occupancy. Having regard to the definitions referred to above and the classification of tenants in the Act, I find it difficult to bring in the lessee for a term of years of an entire mahal as a tenant without rights of occupancy, and to include him in class 4. It seems to me that the section includes only agricultural tenants and classifies them in their relation to the landlord or other person entitled to receive rent from them; but it does not include persons like the plaintiff's in the case before us, who for a certain fixed annual payment occupy the same position towards the four classes of tenants mentioned in the Act as the absolute owner of the estate would do, had he not for a term of years withdrawn himself from that position by assigning the management of his estate and the collection of rents from the ryots to another. I do not deny that a farmer or lessee could sue or be sued in certain suits under the old Rent Act which has been repealed. But the lessee could not have brought a suit of the nature of the one referred to us in a Revenue Court. He must have gone into a Civil Court. In the present Rent Act, whether designedly or by some accidental omission, an intermediate lessee between the owner of the property and his tenants appears to have been overlooked. Such a lessee might perhaps, as the person entitled to receive the rents from the agricultural tenants, sue for arrears due to him. But I think it doubtful whether he could make an application to a Revenue Court under Clause (n) (application for the recovery of the occupancy of any land of which a tenant has been wrongfully dispossessed), Section 95, Clause (n) seems the complement of Clause (m), application by a tenant for compensation for wrongful dispossession, which applies to the tenants of the four classes specified in Section 10, and to them only.

7. With this view of the case, I would say that the suit was not barred, as the claim was not of the nature of an application that could be made to a Revenue Court under Clause (m), Section 95, Act XVIII of 1873, and that it was properly instituted in the Civil Court.


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