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Debi Prasad Vs. Sher Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1915)ILR37All254
AppellantDebi Prasad
RespondentSher Khan and ors.
Excerpt:
.....the lines taken by me. 41 on appeal under section 10 of the letters patent, i would say that, if we disregard the form of the present suit, the real substance is clearly one which could have been decided in the revenue court. it has been held, i think rightly, in several cases by this court that in a suit for the ejectment of a tenant if the tenant pleads that he holds under a perpetual lease under which he is not liable to be ejected it is for the revenue 0 court to decide whether the plea is correct or not, but at least three judges of the court are further committed to the view that a suit like the one now before us cannot be maintained because the plaintiff might have instituted a suit in the revenue court for the ejectment of the defendants in which the validity of the lease set up..........who claim to hold the land in suit under a perpetual lease. this he can undoubtedly do by a suit in ejectment in the revenue court of the nature already explained. i do not think he is entitled to come to the civil court for a mere declaration, the only object of -which would be to enable him to take further proceedings in ejectment before the revenue courts. it seems to me that, unless this view is maintained, a conflict of jurisdiction between the civil and revenue courts in matters of this sort will sooner or later be inevitable. section 11 of the code of civil procedure could not be applied, strictly on its terms, so as to make the decision of a civil court in a declaratory suit binding on the revenue court in a suit for ejectment, for it could be pleaded that the civil court.....
Judgment:

Piggott, J.

1. This is an appeal by the defendants against an order of the learned District Judge of Aligarh passed under Order XLI, Rule 28, remanding to the court of the Subordinate Judge of Aligarh, for decision on the merits, a suit which had been dismissed by that court. The learned Subordinate Judge had held that, on the facts stated in the plaint, the suit was not cognizable by him, being barred by Section 167 of the Agra Tenancy Act (Local Act II of 1901). This is the finding which ' the learned District Judge has reversed on appeal and his decision is now challenged before us. There was a mortgage of some zamindari property on which a suit was brought and a decree for sale was made. After the mortgage, but before the decree for sale, the mortgagors executed a perpetual lease in respect of certain lands appertaining to the share in question. In execution of the decree for sale the zamindari property was pub to sale and was purchased by the present plaintiff. He brought this suit in order to get rid of the perpetual lease. As originally drafted, the relief claimed in the plaint was recovery of possession over the land in question as against the defendants lessees. In reply the defendants lessees claimed the benefit of Section 202 of the Tenancy Act, and were accordingly directed to institute a suit in the Revenue Court for the determination of the question whether or not they held the land in suit as tenants of the plaintiff. They instituted a suit accordingly; but when that suit came up for trial the present plaintiff, who was defendant in the Revenue Court, admitted the existence of a tenancy. He pleaded that the precise nature of that tenancy, and in particular the validity of the perpetual lease under which the present defendants claimed to hold, was not a matter for determination in that suit. On this understanding a decree was passed to the effect that the plaintiffs in the Revenue Court, who are appellants before this Court, held the land in suit as tenants of the present plaintiff respondent. After the proceedings in the Revenue Court had thus terminated, the respondent obtained leave to amend his plaint by asking for a simple declaration that the perpetual lease in question was not binding upon him. It was the plaint as thus amended which the learned Subordinate Judge has held not to be cognizable by the Civil Court. The provisions of Section 167 of the Agra Tenancy Act have been discussed in a number of rulings, the most recent of which is Ram Singh v. Girraj Singh (1914) I.L.R. 37 All. 41. As will be apparent from that report, I am myself deeply committed to the view that the provisions of Section 167 of the Tenancy Act do bar a suit like the present. The plaintiff in this case, having obtained possession of the zamindari share on his auction purchase, found in existence a perpetual lease of a portion of the property which he regarded as interfering with his full enjoyment of the property acquired by him. His natural remedy, if as a matter of fact the lease was executed under such circumstances as not to be binding upon him, was by way of a suit for ejectment under Section 58 of the Tenancy Act. Such a suit would fall within the provisions of serial number 29 of group (c) of the fourth schedule to the Act in question and would be cognizable only by the Revenue Courts. The plaintiff in such a case would seek for ejectment of the defendants lessees on the ground that they hold only as tenants from year to year. In reply the perpetual lease in favour of the said defendants would be sot up, and in order to the determination of the question thus raised the Revenue Court would have to decide whether the said lease was valid and binding on the plaintiff. The question is whether the plaintiff can be allowed to oust the jurisdiction of the Revenue Court, and bring his suit before a different forum, by seeking for a mere declaration. In the Judgment which was before the Bench of this Court which decided the case of Ram Singh v. Girraj Singh (1914) I.L.R. 37 All. 41 I have discussed this question at some length, and so far as I am concerned I have nothing to add to the reasons which I gave in my Judgment in that case for holding that the second part of Section 167 of the Tenancy Act must be construed as barring a suit like the present. It may be said that the final decision of the Bench of this Court does not proceed precisely on the lines taken by me. Even, however, confining my decision to the grounds taken by the learned Judges who decided the case of Ram, Singh v. Girraj Singh (1914) I.L.R. 37 All. 41 on appeal under Section 10 of the Letters Patent, I would say that, if we disregard the form of the present suit, the real substance is clearly one which could have been decided in the Revenue Court. The object of the plaintiff is to get rid of the defendants who claim to hold the land in suit under a perpetual lease. This he can undoubtedly do by a suit in ejectment in the Revenue Court of the nature already explained. I do not think he is entitled to come to the Civil Court for a mere declaration, the only object of -which would be to enable him to take further proceedings in ejectment before the Revenue Courts. It seems to me that, unless this view is maintained, a conflict of jurisdiction between the Civil and Revenue Courts in matters of this sort will sooner or later be inevitable. Section 11 of the Code of Civil Procedure could not be applied, strictly on its terms, so as to make the decision of a Civil Court in a declaratory suit binding on the Revenue Court in a suit for ejectment, for it could be pleaded that the Civil Court had no jurisdiction to try the suit for ejectment. I would accordingly set aside the order of the lower appellate Court and restore that of the Court of first instance.

Chamier, J.

2. The facts of this case have been stated by my learned colleague and I will not repeat them. In the courts below it was contended on behalf of the defendants that the jurisdiction of the Civil Court was barred by the provisions of Section 167 read with Section 95 of the Agra Tenancy-Act. The Subordinate Judge accepted this contention and dismissed the suit. On appeal the District Judge held that Section 95 of the Act did not apply to the case at all because the plaintiff could not have brought a suit under Section 95 for a declaration as to the validity of the perpetual lease set up by the defendants or to have it declared that the defendants were not the holders of a perpetual lease. Having regard to the definition of the word class contained in the Act it appears to me that a suit for such a declaration would not be a suit for a declaration as to the class to which a tenant belongs, nor do I think that such a suit would be for a declaration as to the name and description of a tenant within the meaning of Clause (a) of Section 95, though it was vigorously contended by Mr. Abdul Raoof that the word 'description' covered such a case. In this Court it is contended that even if Section 95 does not apply to the case, yet the jurisdiction of the Civil Court to entertain this suit is barred because at the date of the suit the plaintiff might have brought a suit for the ejectment of the defendants under Sections 58 and 63 of the Tenancy Act. It has been held, I think rightly, in several cases by this Court that in a suit for the ejectment of a tenant if the tenant pleads that he holds under a perpetual lease under which he is not liable to be ejected it is for the Revenue 0 Court to decide whether the plea is correct or not, but at least three Judges of the Court are further committed to the view that a suit like the one now before us cannot be maintained because the plaintiff might have instituted a suit in the Revenue Court for the ejectment of the defendants in which the validity of the lease set up by the defendants might have been determined. The case is really covered by the principle of the decision of RICHARDS, C.J. and BANERJI J. in Ram Singh v. Girraj Singh (1914) I.L.R. 37 All. 41, in which they approved of the view taken by my learned colleague. On the authorities I feel bound to hold that the question whether the defendants are entitled to hold the land under the perpetual lease set up by them is a 'matter in respect of which' a suit might have been brought in the Revenue Court within the meaning of Section 167 of the Tenancy Act, although the plaintiff could not in the Revenue Court have claimed any declaration regarding the lease. It may be doubted whether the authors of the section intended that it should be construed in such a comprehensive manner, but a cursus curiae has been established from which I am not prepared to dissent. I agree that this appeal should be allowed and the decision of the first Court restored.

3. The appeal is allowed. The decree of the lower appellate Court is set aside and the decree of the first Court is restored with costs here and in the lower appellate Court.


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