1. This is a reference to this Court made by the Collector of Basti under Section 195 of the Tenancy Act, because he doubted whether the appeal pending before him in a particular matter should be filed in a civil or a revenue Court. One Kashi Chamar sued the defendant, Baldeo Kurmi, for ejectment; and one of the grounds of defence was that the defendant cultivated the land in dispute as tenant of the Raja of Bansi and paid rent to him. The plaintiff's case was that he was an occupancy tenant of the land and Baldeo Kurmi was his sub-tenant. The Assistant Collector decided that Kashi was occupancy tenant of the land and that Baldeo was his sub-tenant.
2. The learned Collector was of opinion that the appeal would lie to a Civil Court if the principle of the ruling in the case of Har Prasad v. Tujammul Hussain (1919) 4 Unpublished Decisions of the Board 102 were followed. The Board of Revenue has dissented from that ruling in Kundan v. Jawahir (1919) 4 Unpublished Decisions of the Board 102,
3. In my opinion, the facts of this case do not call for a decision as to which of the views in the two judgments is correct. The question before me is covered by authority. In Niranjan v. Gajadhar (1908) 30 All 133 one Niranjan applied as owner of a fixed rate holding for ejectment of Gajadhar on the ground that Gajadhar was his sub-tenant. The Assistant Collector dismissed the suit. The plaintiff appealed to the District Judge who made a reference to this Court, as he was not in agreement with a Single Judge decision of this Court in Chhittar Singh v. Rup Singh (1906) 3 ALJ 603. A Bench of this Court held that the appeal lay to the revenue Court and not to the civil Court.
4. It was argued here that the question in dispute between the tenant and sub-tenant is one of proprietary title in accordance with the provisions of Section 198 of the Tenancy Act. The heading of that section in Ch. XIV of the Tenancy Act is: 'Questions of proprietary title in revenue Court.' Section 198 lays down:
When in any suit against a tenant under this Act, the defendant pleads that the relation of landholder and tenant does not exist between the plaintiff and himself on the ground that he actually and in good faith pays the rent of his holding to some third person, the question of such payment of the rent to such third person shall be inquired into, and, if the question is decided in favour of the defendant, the suit shall be dismissed.
5. The second clause of this section lays down:
The decision of the Court on such question shall not affect the right of any person entitled to the rent of the holding to establish his title by suit in the civil Court.
6. It was contended on behalf of the plaintiff-respondent that, according to the terms of the first clause of this section, the question as to whether Kashi actually and in good faith paid the rent of his holding to the Raja of Bansi was a question of proprietary title and that had to be decided in the appeal pending before the Collector of Basti. In my opinion 'landholder and tenant' do not mean 'tenant and sub-tenant' as they would have to mean in order to support the argument of the plaintiff's learned Counsel. 'Sub-tenant' is separately defined in Section 4 of the Tenancy Act and the term 'tenant' is not defined as including a sub-tenant. A sub-tenant is not a class of tenants enumerated in Section 6; so a sub-tenant cannot be called non-occupancy tenant in Section 19 of the Act. A discussion of the terms of Section 198 of the Tenancy Act, therefore, does not arise here and I am not called upon to determine whether the Bench decision in the case of Niranjan may be supported or not.
7. A dispute between a tenant and a sub-tenant raises no question of proprietary title. The suit being one for ejectment, the appeal would go out of the cognizance of the revenue Court only if a question of proprietary title had been in issue in the Court of first instance and is a matter in issue in the appeal. No such question arises here, so the jurisdiction of the revenue Court is not ousted as laid down by Sch. IV, Group C., Serial. No. 29.
8. Presumably the words 'landlord and tenant' have been used in Section 63 to include tenant and sub-tenant and, if the analogy be applied to Section 198, I am of opinion that the decisions reported in Har Prasad V. Tajammul Husain AIR 1918 All 290 is not correct. The provisions of Section 198 are to be read in contra distinction to the provisions of Section 199, Tenancy Act. The decision of the revenue Court under Section 198 is not binding on a civil Court, while that under Section 199 is. The proprietary title contemplated is not the dispute between the plaintiff landholder and the third person, to whom the defendant alleged that he paid rent in good faith. Such a dispute over a proprietary title was involved in the decision of the question of payment to some one other than the plaintiff in good faith. That is the dispute which is referred to as one of proprietary title in the heading over Section 198. The dispute between the parties to the suit is to be kept strictly in the revenue Court, otherwise there would be no necessity to permit of a suit in the civil Court. If the appeal in such a case lay to the civil Court, the decision of the civil Court would be binding on another civil Court and there would be no object in providing a saving clause, as is done in Section 198.
9. In the present case the pleadings and judgment of the trial Court are wanting in definiteness. The defendant probably desired to raise such a defence as is mentioned in Section 198, but no allegation was made in the written statement of payment of rent being made to the Raja of Bansi in good faith. The trial Court framed no issue on the question of the payment of rent to a third person in good faith.
10. If the case is taken out of the provisions of Section 198, there can be no doubt that no issue of a claim to a proprietary title arises between the parties here.
11. It will not be found possible to reduce the different rulings of this Court to one or more consistent principles of law so I think that every matter should be decided on a different principle of law in accordance with previous decisions on similar facts. Mr. Justice Banerji consistently took the extreme view in favour of the civil Court's jurisdiction, as stated in Chittar Singh's case (1906) 3 ALJ 603 and was able to impress this view on Benches of which he was a member. If this view had been consistently adopted, the different decisions could have been referred to a uniform principle of law, but other Judges, when not sitting with Mr. Justice Banerji, did not adopt this view. Mr. Justice Tudball, the other member of the Bench in the case reported as Har Prasad v. Tajammul Hussain AIR 1918 All 290, did not follow the principle of that ruling to its logical conclusion in Gurcharan Kuer v. Deokinandan Kuar AIR 1920 All 212 when sitting singly. I agree with this decision that when the title to a tenure is in dispute, the jurisdiction of a civil Court does not arise.
12. The Full Bench ruling, however, in Bindeshwari v. Gokul AIR 1914 All 324 [Chief Justice. Banerji and Ryves, JJ.], following Dalchand v. Shamla (1906) 2 ALJ 756, [Blair and Banerji, JJ.] and dissenting from Udit Tiwari v. Balhari Pande (1913) 35 All 521, [Tudball and Piggott, JJ.] is in conflict with this opinion. There the dispute between the parties related to the possession of a holding. A claimed to he tenant and alleged that B was his sub-tenant. B was one of the proprietors of the village and A admitted this fact, A's contention was thai; the tenure was his, while B alleged that he held it as khudkasht. In reality the dispute related to a tenure and not to any interest in revenue paying property.
13. It is enough for me to say that, in this present case, my opinion in favour of the jurisdiction of the revenue Court is supported by rulings in Niranjan v. Gajadhar (1908) 30 All 133, Daulatia v. Hargobind AIR 1921 All 290 and Gurcharan Kuar v. Deokinandan Kuar AIR 1920 All 212 and that rulings to the contrary on similar facts have not come to my notice. It may be conceded that certain principles enumerated in other rulings, if pressed to their logical conclusion, would not support the view. My answer to the reference is that the appeal was correctly filed in the Revenue Court.
14. (After setting out facts his Lordship proceeded). I will first consider the authorities apart from any effect that Section 198 may have.
15. In Har Prasad v. Tajammul Hussain AIR 1918 All 290 the defendant claimed to be lessee of another person (a different proprietor), and in Tulhi v. Ramraj (1922) 6 Unpublished Decisions of the Board High Court Section 22 the defendant alleged that the plot belonged to another village and that he had been paying rent to the proprietor of that village. In both these cases it will be seen that there was in the background the existence, alleged by the defendant, of another proprietor other than the proprietor under whom plaintiff held.
16. On the other hand in the case decided by the Board, Kundan v. Jawahir (1919) 4 Unpublished Decisions of the Board 102, there was not even in the background any question of any other proprietor; both plaintiff and defendant were in agreement as to who was proprietor. This latter is also the case in the question before us. Similarly in Niranjan v. Gajadhar (1908) 30 All 133, where the plaintiff claimed as fixed rate tenant to eject the defendant as his sub-tenant while the defendant contended that he himself was the fixed rate tenant, both parties apparently claimed to hold under the same proprietor. In that case a Bench of this Court, Knox and Aikman, JJ., held that
When there is a question whether one party or the other is the cultivator of specified land no question of proprietary right arises.
17. The earlier contrary view expressed in the judgment of Mr. Justice Banerji and reported in Chhittar v. Rup Singh (1906) 3 ALJ 603 was dissented from.
18. We have, therefore, two cases of this Court, Har Prasad v. Tajammul Husain AIR 1918 All 290, (decided by a Bench), and Tulhi v. Ramraj (1922) 6 Unpublished Decisions of the Board High Court Section 22, (of a single Judge), in both of which it was held that a question of proprietary title was in issue but in both of which there was alleged to be another proprietor whose tenant the defendant was. On the other hand we have a case of the Board, Kundan v. Jawahir (1919) 4 Unpublished Decisions of the Board 102, and a decision of a Bench of this Court, Niranjan v. Gajadhar (1908) 30 All 133, in both of which it was held that no question of proprietary title was in issue, but in both of which there was no dispute even is the background as to who was the proprietor, both parties to the suit admitting the same person to be proprietor. The facts of the present case are the same as in the two latter cases.
19. Whether or no the two former cases can be distinguished from the two latter cases on the ground that in the former there was contention between the disputant tenants as to who was the proprietor while in the two latter cases there was no such contention, is a question into which I need not enter, for the decision in the two former cases was not based on the fact that there were two proprietors in the background with conflicting interests but on the ground that the cases came within Section 198 and were, therefore as it was held, necessarily bases of proprietary title being in issue. To Section 198 I shall refer later. So far as the present case is concerned it is on all fours with Kundan v. Jawahir (1919) 4 Unpublished Decisions of the Board 102 and Niranjan v. Gajadhar (1908) 30 All 133 and I have no hesitation is holding that those eases were rightly decided. A mere statement of the cases there end in the present case namely, that the question who is the proprietor is not in dispute even in the background, but that there is a proprietor, admitted by both parties to be proprietor, and that only two persons both of whom are admittedly tenants of one sort or another are contending with each other itself suggests irresistibly that there is no question of the proprietary title in issue.
20. I turn now to a consideration of Section 198. It is frankly admitted by Mr. Harnandan Prasad, (who, appearing for the defendant, contends that the Collector has no jurisdiction to hear the appeal) that the decision in Niranjan v. Gajadhar (1908) 30 All 133 is against him. But he urges that in Har Prasad v. Tajammul Hussain AIR 1918 All 290 and Tulhi v. Ramraj (1922) 6 Unpublished Decisions of the Board High Court Section 22 the Court rightly considered and relied on Section 198 that in Niranjan v. Gajadhar (1908) 30 All 133 the Court did not consider Section 198; that is should have done so and we should do so in the present case. His conclusion is two fold.: (a) that the present case comes within the terms of Section 198, (b) that the case coming under Section 198, it follows that a question of proprietary title is in issue because the heading immediately preceding Section 198 describes the cases which follow that heading as being cases involving a question of proprietary title
21. I quote the heading and the section in extenso as nearly every line is suggestive of the carrying out of the intention, as I understand it, of the Legislature.
Questions of proprietary title in revenue Court 198(1): when, in any suit against a tenant under this Act, the defendant pleads that the relation of landholder and tenant does not exist between the plaintiff and himself on the ground that he actually and in good faith pays the rent of his holding to some third person, the question of such payment of the rent to such third person shall be inquired into, and if the question is decided in favour of the defendant, the suit shall be dismissed.
(2) The decision of the Court on such question shall not affect the right of any person entitled to the rent of the holding to establish his title by suit in the civil Court.
22. To come to the first part of the argument for defendant, that the present case comes within Section 198. Is the plain tiff occupancy tenant a landlord and is the defendant sub-tenant a tenant within the meaning of Section 198?
23. Section 4(5) declarer 'landholder' means the person to whom, and tenant the person by whom rent is payable.' Section 4(7) begins 'Sub-tenant' means a tenant who, etc.' i.e., it declares that a sub-tenant is a tenant though he is a tenant of particular kind. The definitions are wide enough to include in 'land-holder' and 'tenant' an 'occupancy tenant' and his 'sub-tenant' respectively 'unless there is something repugnant in the subject or context.' See the opening words of Section 4. Is there anything repugnant in the subject or context in Section 198? Is there anything in Section 198 justifying a restriction of the scope of the words 'land-holder' and 'tenant' to 'proprietor' and 'tenant-in chief' I think there is.
24. Let us suppose in a case like the present the words to be wide enough to include an 'occupancy tenant' A and his 'sub-tenant' B. A sues to eject B. B denies the relationship of landlord and tenant on the ground that he has been paying rent in good faith to C. The Court is to inquire into the facts of the actual payments and the good faith of the payments and if the decision on these points is in favour of B the suit is to be dismissed. It will be noted that herein there is no provision for the decision of the question of A's right to receive the rent though A may have ample proof of that right. What remedy then has A? He can appeal, of course, until he has exhausted his right of appeal; but if the decision of the facts of actual payments in good faith is upheld he will still be unable to establish his right to receive the rents. Nor can he file a separate suit in the civil Court to establish that right. Section 198(2) gives him no such right: it gives no right at all to anybody; it merely declares that any existing right of any person entitled to the rent to establish his title by suit in the civil Court shall not be prejudiced. If, therefore, S, 198 applies and the suit in the revenue Court is decided against A on the ground of actual payments made in good faith by B to C he is left without remedy. There is, therefore, as I view ii, matter in Section 198 which is repugnant to the application of the definitions of 'land holder' and 'tenant' in their widest sense to those words as used in Section 198(1).
25. If such a case as the present comes within Section 198 and if the plaintiff, where the decision under Section 198, (1) is against him and his suit is dismissed, has a remedy by a suit in the civil Court to get his right to receive the rent declared, we have the plaintiff's right being determined in a civil Court. But if the decision under Section 198(1) was in plaintiff's favour, there is no provision for the plaintiff being referred to a civil Court to establish his right to receive the rent; the revenue Court would have to proceed in the ordinary course to determination of the question of the plaintiff's right.
26. If therefore, the argument for the defendant were to be accepted the very same question of plaintiff's right to rent would have to be determined by the civil Court or by the revenue Court according as the decision under Section 198(1) was adverse or favourable to the plaintiff. This is a further reason for holding that a case such as the present does not come within Section 198. I hold then that the words 'landholder', and 'tenant' do not in Section 198(1) embrace an 'occupancy-tenant' and his 'sub-tenant.' It is consistent with this view that the provision in Section 198(2) would be superfluous in the case of an occupancy tenant and his sub-tenant as there is no right to go to the civil Court which could be saved from being affected, though this consideration would not, of course, suffice by itself to show that Sub-section (1) could not apply to an 'occupancy tenant' and his 'sub-tenant' as it would still be applicable to other cases.
27. I turn now to the second portion of the argument for the defendant. Assuming contrary to the view 1 have expressed, that Section 198(1) does apply to the case of an occupancy tenant and his subtenant, it is then urged that a question of proprietary title is in issue because cases within Section 198 are described in the heading preceding Section 198, as the argument would interpret the heading, as involving questions of proprietary title.
28. I have expressed above the view that a case like the present does not come within Section 198(1), but the reasons I have given do not apply to exclude such cases as Har Prasad v. Tajammul Hussain AIR 1918 All 290 where the plaintiff claimed to be proprietor and would come within even the restricted scope of the term 'land-bolder.' But in that case Banerji and Tubdall, JJ., proceed to hold that the heading was conclusive proof, and it has been argued here that it is conclusive that a question of proprietary title being in issue is necessarily involved in any case which comes within Section 198(1). A heading of this nature is no doubt meant to express the intention of the Legislature, though it is at least open to question whether the words themselves have operative effect. But I would not rule out the contention of the applicant on the ground that such a heading has no operative effect. I prefer to consider whether the words do bear the meaning attributed to them in Har Prasad v. Tajammul Hussain AIR 1918 All 290 and in argument here. To my mind they do not.
29. The heading does not say anything equivalent to
the following are cases where questions of proprietary title are in issue and such questions shall be heard by the revenue Court in the following manner.
30. The heading is only equivalent to:
let us consider the jurisdiction of the revenue Court in certain cases and how far it is to proceed in the direction of dealing with proprietary title.
31. The heading is not necessarily inappropriate to a case in which proprietary title is not in issue but is merely in the background. Further, the directions which follow such a heading as we have here might, consistently with the grammatical implications in that hearing, be directions to the revenue Court to deal with the question of proprietary title or directions not to deal with it. We have, then, next to consider the terms of Section 198 to see which of these two courses the Legislature has adopted in Section 198.
32. Section 198 states a particular case where a defendant pleads that he 'in good faith pays the rent of his holding to some third person,' and that is the only plea which can bring the case within Section 198.
33. The section next says that question of such payment, the question whether he actually in good faith pays the rent to a third person, is to be inquired into, and if decided in his favour, the suit is to be dismissed. It does not say that the proprietary title of the receiver of the rent to receive the rent is to be enquired into; it expressly refrains from saying that.
34. Finally, Sub-section (2) declares that the decision of such question, i.e., as to the fact of actual payment in good faith, shall not affect the right of any person claiming to be entitled to the rent to sue in the civil Court to establish his title. The sub-section does not, of course, create any new right to sue in the civil Court but merely makes clear that any existing right is not affected by the decision, i.e., any person, including the third parson who has been alleged to be receiving the rent, may, if he claims to be proprietor and his title is in peril, sue in the civil Court to establish his title. Every line of the section is consistent with and suggests the view that in a case coming within the section the Court is to deal with the factual of payments of rent in good faith to a third person and not to deal with the title of the third person to receive the rent.
35. That this view of the actual effect of Sub-section (1) of Section 298 is in accord with the intention of the Legislature is supported by a reference to the history of the section. The earlier Section 148 of Act XII of 1881 provided expressly for the third person being made a party to the suit. The present Section 198 omits that provision and the omission directly suggests that his title to the rent is not to foe inquired into, and this is in accord with the omission to provide for any enquiry into his title, and, so far as Section 198(1) is concerned, the express limitation of the enquiry to the single question whether any payment has been made in fact and in good faith.
36. I am, therefore, of opinion that there is nothing in the heading preceding Section 198 or in Section 198(1) to indicate that in a case coming within Section 198(1) a question of a proprietary title is necessarily in issue. Rather are all the indications to the contrary. The answer to the question whether a matter of proprietary title is in issue cannot be based on any conclusion that the case is or is not within Section 198 but must be answered independently of Section 198.
37. I have already stated my view that, independently of Section 198, no question of proprietary title is in issue in the present; case; at any rate where there is no contention between the parties as to who is proprietor. As to the cases Har Prasad v. Tajammul Hussin AIR 1918 All 290 and Tulhi v. Ramraj (1922) 6 Unpublished Decisions of the Board High Court Section 22, my view that S, 198 and the heading to that section have no bearing on the question whether a matter of proprietary title is in it sue involved my holding that in so far as those cases were based on the heading to Section 198 those decisions cannot be supported. Whether they could be effectively distinguished from the present case on the ground that in them there was at any rate in the background difference between the plaintiff's allegation and the defendant's allegation as to who was proprietor, and whether cases could be distinguished in which the person alleged by the defendant to be proprietor was made a party are questions answers to which are not necessary to the decision of the present case and into which I ought not, therefore, to enter.
38. I would note that I have not omitted to give the best consideration in my power to a number of other decisions of this Court and of the Board of Revenue, and I am not unaware that there is a conflict of views to be found in those cases, and that the view which I have expressed could not always be reconciled with one or other of those cases, But, if I may say so, I have found little more than dicta in those cases to guide me and as the facts were not always the same I have not referred to them. Even in the case of Niranjan v. Gajadhar (1908) 30 All 133 there is nothing more than a dictum.
39. The above considerations lead me to the following conclusion: that, even supposing the present case to come within Section 198(1), the heading to Section 198 does not involve the conclusion that there is necessarily a matter of proprietary title in issue in the revenue Court when it has before it a case within Section 198; that where the plea of the defendant, literally or in effect, comes within Section 198(1), the revenue Court must inquire into that plea, i.e., into the allegation of actual payments in good faith to a third person and determine the question, but should not decide the question of the title of the alleged third person to receive the rent, and has no concern with such title beyond such bearing as it may have on the determination of the good faith of the payments; that actually the present case does not come within Section 198, and the answer to the question whether a matter of proprietary title is in issue must be sought aliunde; that no question of proprietary title is in issue in the present case; and that appeal lies to the appropriate revenue Court.
40. And my answer to the reference is that the defence set up does not come, as the Collector thinks it does, under Section 198; and secondly, that if it does so come there is still no question of proprietary title in issue and the case of Har Prasad v. Tajammul Hussain AIR 1918 All 290 and Tulhi v. Ramraj (1922) 6 Unpublished Decisions of the Board High Court Section 22, in so far as they decided that in all cases coming within Section 198 a question of proprietary title is in issue, were wrongly decided; and that the appeal was properly filed in the Court of the Collector.