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Ram Sewak Lal Vs. Bashist and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All419
AppellantRam Sewak Lal
RespondentBashist and ors.
Excerpt:
.....constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - ..the plea set up in defence is that the relief claimed by the plaintiff is in substance one that could very well be claimed either by means of a suit under section 69 or section 183. first of all, therefore, it has to be seen whether the relief claimed in substance, though not in form, is a relief which could be claimed in a suit filed under section 59 or 8.183 of the act. 92 clearly apply to the present case. the suit therefore falls clearly under section 59, u .p......was returned to the plaintiff for presentation to the proper court.2. the plaintiff instituted the present suit in the civil court and sought a declaration that a consent decree, dated 15th september 1942, in suit no. 407 of the revenue court was void and ineffectual against him. it was the case of the plaintiff that he was the occupancy tenant of the plots mentioned at the foot of the plaint and that he was in possession of the same. the plaint went on to allege that defendants 1 to 3, namely, bashist pandey, rikhi and singhasan pandey, in collusion with defendant 4, balram das, filed a suit in the revenue court under s3. 59 and 61, u.p. tenancy act and in the course of hearing of that suit a fraud was practised upon the plaintiff and he was made to give an admission of the claim put up.....
Judgment:

Wali Ullah, J.

1. This is an appeal by the plaintiff against an order passed by the lower appellate Court by which the decree passed by the Court of first instance was set aside and the plaint was returned to the plaintiff for presentation to the proper Court.

2. The plaintiff instituted the present suit in the civil Court and sought a declaration that a consent decree, dated 15th September 1942, in Suit No. 407 of the revenue Court was void and ineffectual against him. It was the case of the plaintiff that he was the occupancy tenant of the plots mentioned at the foot of the plaint and that he was in possession of the same. The plaint went on to allege that defendants 1 to 3, namely, Bashist Pandey, Rikhi and Singhasan Pandey, in collusion with defendant 4, Balram Das, filed a suit in the revenue Court under S3. 59 and 61, U.P. Tenancy Act and in the course of hearing of that suit a fraud was practised upon the plaintiff and he was made to give an admission of the claim put up by the plaintiffs of that suit. As a result of the decree passed by the revenue Court his name was ordered to be removed from the revenue papers and this was the principal relief which he sought in the plaint. Subsequently an application for amendment of the plaint was filed and allowed. In substance, however, by reason of the amendment, relief (a) of the plaint was modified only in this sense that a declaration was sought to the effect that the decree passed in Suit No. 407 was null and void as against the plaintiff. In substance, however, the relief (a) claimed by the plaintiff remained intact.

3. The suit was contested by defendants 1 to 3 and defendant 4. It may be stated here that defendant 4 admittedly is a usufructuary mortgagee of the zamindari interests of defendants 5 and 6 in which the plots in suit are situate. In substance, the defence was that the civil Court had no jurisdiction to entertain the suit. It was denied that any fraud or undue influence was practised on the plaintiff so far as the admission made by the plaintiff in the earlier suit in the revenue Court was concerned. Lastly, it was pleaded that the claim was barred by Section 42, Specific Belief Act. The Court of first instance on a consideration of the matter and after considering some rulings placed before it came to the conclusion that the civil Court had jurisdiction to entertain the present suit. On the merits, it was held that the suit was not barred by Section 42, Specific Relief Act, nor were the allegations of fraud made by the plaintiff in regard to his admission in the course of proceedings in the earlier suit in the revenue Court proved, In view of these findings the learned Munsif decreed the suit. On appeal, the learned Civil Judge considered only one question, namely, the question relating to the jurisdiction of the civil Court to entertain the present suit. On a consideration of the matter at some length and after considering various rulings, particularly the ruling of this Court reported in Ram Dihal Dubey v. Gajraj Upadhaya : AIR1935All499 , the learned Judge came to the conclusion that the present suit should have been filed in the revenue Court and that the revenue Court could grant the relief sought in the present suit. In view of this finding the appeal was allowed, the decree of the Court below was set aside and the plaint was ordered to be returned for presentation to the proper Court. Against the order of the learned Additional Civil Judge, plaintiff has come up in appeal.

4. The sole question which is to be decided in this appeal is whether the nature of the present suit is such that it could not be properly entertained by the civil Court. Section 242, U.P. Tenancy Act, directs that

all suits...of the nature specified in the Fourth Schedule shall be heard...by a revenue Court and no Court other than a revenue Court shall...take cognizance of any such suit...or of any suit...based on a cause of action in respect of which relief could be obtained by means of any such suit....

The plea set up in defence is that the relief claimed by the plaintiff is in substance one that could very well be claimed either by means of a suit under Section 69 or Section 183. First of all, therefore, it has to be seen whether the relief claimed in substance, though not in form, is a relief which could be claimed in a suit filed under Section 59 or 8.183 of the Act. So far as the latter section 183 is concerned, it seems to me that on the allegations in the plaint there is really no room for doubt that that section is wholly inapplicable to the case. In the present case, the plaintiff does not directly or indirectly make any allegation about his wrongful ejectment; nor does he say that he has been prevented from obtaining possession of his holding. It seems to me, therefore, that the only substantial point to be considered here in this connection is whether the present suit could or could not be brought under the provisions of Section 59, Tenancy Act. Section 69 deals with declaratory suits by tenants when a declaration is sought against the land-holder to the effect that the claimant is a tenant in whole or in part of the holding in suit. In the present case the facts alleged in the plaint and the relief as worded initially, or as it stands after amendment, do come in substance to this that the plaintiff's status as a tenant has been adversely affected by the so-called consent decree, dated 15th September 1942, passed in Suit No. 407 of the revenue Court. The plaintiff consequently seeks a declaration in substance, though not in form, that he is still a tenant of the plots in suit. It has been repeatedly held by this Court that in order to determine the true nature of the relief claimed in a suit the pith and substance and not the form in which the relief may be couched has to be considered. Reference might be made to a very recent decision of this Court in Ram Kuer v. Iqbal Narain Singh A.I.R. (34) 1947 ALL. 92 which was decided by this very Bench in which the same principle was affirmed. Keeping that principle in mind, it seems to me quite clear that the relief which the plaintiff seeks in the present suit is a declaration of his status as a tenant of the plots in suit. I am, therefore, of the opinion that the present suit is one which is contemplated by Section 59, Tenancy Act. It follows, therefore, that it could certainly be filed in the revenue Court. Further-more it follows that Section 242, Tenancy Act, read with Section 59 definitely bars the jurisdiction of the) civil Court to entertain the present suit. The principle followed in the case of Ram Dihal Dubey v. Gajraj Upadhya : AIR1935All499 and the principle followed by us in the case of Ram Kuer v. Iqbak Narain SinghA.I.R. (34) 1947 All. 92 clearly apply to the present case.

5. Lastly I may refer to the Full Bench decision of this Court in Fateh Singh v. Gopal Narain : AIR1925All637 The principle laid down by the Full Bench in this case no doubt supports the view taken by the learned Judge. There can be no doubt that the plaintiff by means of the present suit wants in substance a reversal of the decision of the revenue Court given in Suit no. 407 on 15th September 1942. For such a purpose the plaintiff must go to the revenue Court.

5a. For the reasons given above, I agree with the view of the law taken by the lower appellate Court. I would therefore uphold the order of the lower appellate Court and dismiss the appeal with costs.

Bind Basni Prasad, J.

6. I agree and wish to add a few words. There can be no doubt that the plaintiff instituted a suit to obtain a declaration of his tenancy right, which is the relief contemplated by Section 59, U.P. Tenancy Act, 1939. In the plaint as originally filed the relief claimed was as follows:

It may be declared that the plaintiff along with defendants 7 to 9 are the occupancy tenants and that defandants 1 to 3 have no concern with the plots in dispute and that the fraudulent consent decree dated 15th September 1942, obtained on the alleged confession of the plaintiff is null and void and ineffectual against the plaintiff.

7. This relief was in clear words one for the declaration of tenancy rights, but when the plea of jurisdiction was raised it was amended so as to ask for a declaration that the consent decree dated 15th September 1942, is null and void and of no effect against the plaintiff. As observed by us in Ram Kueo v. Iqbal Narain Singh A.I.R. (34) 1947 ALL. 92, in determining the jurisdiction of the Court we should see to the pith and the substance of the relief and not to its form. In that case also the relief was for a declaration that a certain decree obtained against the plaintiff through the revenue Court was fraudulent. We followed the earlier decision of Ram Dihal Dubey v. Gajraj Upadhya : AIR1935All499 .

8. Learned Counsel for the appellant has invited our attention to an unreported decision of a learned Single Judge of this Court in civil Revision No. 560 of 1943. (Treated as F.A.F.O. No. 292 of 1944), decided on 3rd November 1944, Pt. Kailash Nath Tewari v. Audhesh Singh. That was a case in which the plaintiff was the purchaser of certain fixed-rate tenancy plots and he claimed a declaration against a rival vendee that the sale was of no effect against him. It was held that the suit was cognizable by the civil Court. In arriving at this finding the learn-ed Judge remarked as follows:

In the case before me there is no dispute between the landlord and the plaintiff that it is a fixed-rate holding, nor has the landlord ever accepted rent from the defendant and refused to accept rent from the plaintiff.

9. In the present case, however, there is a clear dispute between the present plaintiff and the 'landholder.' The expression 'landholder' which occurs in Section 59, Tenancy Act is defined in Sub-section 11 of Section 3 as one to whom rent is, or, but for a contract express or implied would be, payable. In the present case defendant 4 is the usufructuary mortgagee of the zamindari belonging to defendants 5 and 6 and it is defendant 4 to whom rent is at present payable. He is therefore a landholder. It is from the defendant 4 that the plaintiff's rivals defendants 1 to 3 have derived title. Defendant 4 is supporting defendants 1 to 3. There is thus a clear dispute in the present case between the plaintiff and the land-holder and it cannot be said that the land-holder is not in any way concerned with the present dispute. The suit therefore falls clearly under Section 59, U .P. Tenancy Act, and I would also dismiss the appeal with costs.

10. The appeal is dismissed with costs.


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