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Nizakat Ali Vs. Shaukat Husain - Court Judgment

LegalCrystal Citation
SubjectTenancy ;Civil
CourtAllahabad
Decided On
Reported inAIR1943All300
AppellantNizakat Ali
RespondentShaukat Husain
Excerpt:
.....that the direction made by the court below is wrong this court not only should but must interfere. tenancy act of 1939, the plaintiff, who by the terms of his title deed is an assignee in respect of the profits in suit as well as a transferee of the share of his vendor, can maintain a suit in the revenue court at all......recover rs. 60 as the amount of profits due for the three years 1344, 1345 and 1346. the learned civil judge, to whose court the suit was transferred from the court of the munsif in which it was filed, held that the suit was not cognizable by him but was cognizable by a revenue court and directed that the plaint should be returned to the plaintiff for presentation in the appropriate revenue court.2. the plaintiff filed an appeal in the court of the district judge and the district judge by his order of 30th january 1942 has held the decision of the learned civil judge on the question of jurisdiction to be wrong and directed that the suit be remanded to the trial court for disposal according to law. the view upon which the learned district judge has acted is that whereas under the agra.....
Judgment:
ORDER

Yorke, J.

1. This is an application under Section 115, Civil P. C, by a defendant. The plaintiff, Shaukat Husain sued to recover from the defendant as lambardar profits of the years 1344, 1345 and 1346 Fasli. The plaintiff was a person who according to his own allegations had taken a transfer of a share in a village from a cosharer by a sale deed dated 12th June 1939, that is in the currency of the Fasli year 1346. By the sale deed it was contracted that the vendee was assigned the profits of the years 1344, 1345 and 1346, although the cause of action for recovery of the profits of 1346 would only arise on 1st August 1939, that is to say the cause of action had not arisen and that cause of action would automatically accrue to the vendee in respect of the profits of 1346 in his capacity as transferee cosharer. As regards the profits of the two earlier years it is evident that the position of the plaintiff, assuming that his sale deed was valid, would be different from that of an ordinary assignee of profits and the conveyance might equally well have been put in the form that along with the share the vendor contracted to transfer to the vendee the right to all arrears of profits appertaining to the share transferred. This being the position of affairs, the plaintiff filed in the Court of the Munsif a suit to recover Rs. 60 as the amount of profits due for the three years 1344, 1345 and 1346. The learned Civil Judge, to whose Court the suit was transferred from the Court of the Munsif in which it was filed, held that the suit was not cognizable by him but was cognizable by a revenue Court and directed that the plaint should be returned to the plaintiff for presentation in the appropriate revenue Court.

2. The plaintiff filed an appeal in the Court of the District Judge and the District Judge by his order of 30th January 1942 has held the decision of the learned Civil Judge on the question of jurisdiction to be wrong and directed that the suit be remanded to the trial Court for disposal according to law. The view upon which the learned District Judge has acted is that whereas under the Agra Tenancy Act of 1926, Section 229, an assignee had the same position as a cosharer, under the Tenancy Act of 1939 there was no such provision and therefore he thought that as an assignee of profits the plaintiff was not entitled to sue in the revenue Court and must go to the civil Court. He remarked that the suit was a regular account suit and a question of proprietary title was involved. So far as I am able to judge, the fact that a question of proprietary title was involved would not alter the proper forum if the plaintiff was entitled to sue for profits as a cosharer. The only effect would be that it would be necessary for the revenue Court before which the suit was proceeding to frame an issue as to title and remit it to the appropriate civil Court for decision and thereafter to decide the suit for profits on the footing of the correctness of the decision of the civil Court. The present application is filed by the defendant who contends, in the first instance, that the suit was cognizable by a revenue Court and, in the second instance, that if this Court should be of opinion that the suit is not cognizable by a revenue Court, then it is an ordinary suit for money cognizable by a Court of Small Causes. With reference to the last contention it is urged that even although a question of proprietary title may be raised that would not take the suit out of the cognizance of the Small Cause Court but would only have the result that the Judge of the Small Cause Court would act under Section 23 (i), Provincial Small Cause Courts Act, and return the plaint to be presented to a Court having jurisdiction to determine the title, the suit remaining in essence a Small Cause Court suit. The first question which arises on this application is whether such an application falls within the scope of Section 115, Civil P. C. It will be sufficient in this connection to refer to the Full Bench decision in Ram Iqbal Rai v. Telesari Kuari : AIR1930All713 , in which the Judges were all of opinion that the matter could be taken up under Section 115. Sulaiman J. remarked:

It seems to me that an appellate Court has no jurisdiction to order a subordinate Court which is legally not competent to try a suit, to hear it and dispose of it, and if it does actually order the subordinate Court to dispose of the case it acts without jurisdiction and also acts illegally in the exercise of its jurisdiction. If therefore an order of this kind is passed it is open to be revised both under Clause (a) and Clause (c) of Section 115, Civil.P.C.

3. Mukerji J. thought that the matter would come within the scope of Clause (a) of Section 115, while Niamat Ullah J. thought that Clause (c) was more appropriate. He thought that the learned District Judge exercised a jurisdiction vested in him illegally--illegally because he directed the civil Court to hear a case which it had no jurisdiction to hear. Relying upon this case, I am satisfied that the application is maintainable under Section 115 and that if it is found that the direction made by the Court below is wrong this Court not only should but must interfere. Coming now to the merits, learned Counsel for the applicant contends that prima facie there is no doubt that the present suit is a suit cognizable by a revenue Court only under the provisions of Section 230, U. P. Tenancy Act. Section 242 of the same Act operates to bar Courts other than the revenue Courts from taking cognizance of suits and applications of the nature specified in Schedule 4, subject to the provisions of Section 286, which section comes into effect when a plea of proprietary title is raised. The question is, however, whether in the circumstances that Section 229, Agra Tenancy Act, has not been reproduced in the U. P. Tenancy Act of 1939, the plaintiff, who by the terms of his title deed is an assignee in respect of the profits in suit as well as a transferee of the share of his vendor, can maintain a suit in the revenue Court at all. Learned Counsel for the applicant has referred to the provisions of Section 3 (1), U. P. Tenancy Act. By this section it is provided that:

In this Act unless there is something repugnant in the subject or context, all words and expressions used to denote the possessor of any right, title or interest in land, whether the same be proprietary or otherwise, shall be deemed to include the predecessors and successors in right, title or interest of such person.

4. It is obvious, I think, that the word 'co-sharer' does denote the possessor of a right title or interest in land in the shape of a share in the mahal. It seems to me also reasonable to hold that the transferee of a co-sharer comes within the scope of the words 'successor in right, title or interest of a co-sharer.' In the present case, it is only a question of the form in which the deed of transfer has been put. The plaintiff has in effect become the successor of his transferor in respect not only of future profits as also of the current year but also in respect of arrears of profits of the two preceding years. In respect of all the profits of all the three years in suit I make no doubt that the plaintiff is the successor, within the meaning of Section 3 (1), U. P. Tenancy Act, of his transferor and is therefore entitled to maintain a suit under Section 230 for recovery of those profits from the cosharer. As to what the position will be of a person who is an assignee of profits pure and simple and whether such a person will or will not be able to maintain such a suit, I find it unnecessary to express an opinion in the present case and therefore do not do so. In my judgment, the present suit was correctly held by the learned Civil Judge to be a suit not entertainable by him but by the revenue Court. I accordingly allow this application, set aside the appellate order of the learned District Judge and restore the order of the Civil Judge and direct that the plaint be returned to the plaintiff for presentation in the appropriate revenue Court. The parties will bear their own costs of this Court and of the Court below.


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