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Abdul Hakim and anr. Vs. Mukarram Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All158
AppellantAbdul Hakim and anr.
RespondentMukarram Ali and anr.
Excerpt:
.....that the other class of court should take cognizance of the suit, it, in my opinion, clearly fails to exercise a jurisdiction which is vested in it. this court interfered in revision and held that the subordinate judge had jurisdiction to hear the suit, set eside the order complained of and directed the subordinate judge to hear the case......began to misappropriate the fruits of the trees and continued to do so, till the date of the suit. the plaintiffs, therefore claimed a declaration of the title and rs. 150 being the value of three years' produce of the trees. later on, by amendment, they claimed possession, if it was found that the plaintiffs were out of possession.3. of the two defendants one pleaded that the whole village of which the grove was a part was wakf property and he was the mutwalli of the same, that the plaintiff's vendor, mendhu, was a mere tenant and he surrendered his holding. he also pleaded that the claim for the value of the fruits was not cognizable by the civil court and that the suit was barred by the six months' rule of limitation.4. the other defendant pleaded that he had nothing to do with.....
Judgment:

Mukerji, J.

1. This is an application in revision asking this Court to revise an order of the learned Munsiff of Bareilly, dated 15th July 1927, which has been affirmed on appeal, by the learned District Judge on 15th November 1927.

2. The facts which have given rise to the suit and the present application are, briefly, as follows: The applicants before us were the two plaintiffs in the Court of first instance. They said that they had purchased a grove on 19th August 1918 and became the owner thereof, by the purchase. About three years prior to the institution of the suit, during the absence of the plaintiffs in Calcutta, the defendants began to misappropriate the fruits of the trees and continued to do so, till the date of the suit. The plaintiffs, therefore claimed a declaration of the title and Rs. 150 being the value of three years' produce of the trees. Later on, by amendment, they claimed possession, if it was found that the plaintiffs were out of possession.

3. Of the two defendants one pleaded that the whole village of which the grove was a part was wakf property and he was the mutwalli of the same, that the plaintiff's vendor, Mendhu, was a mere tenant and he surrendered his holding. He also pleaded that the claim for the value of the fruits was not cognizable by the civil Court and that the suit was barred by the six months' rule of limitation.

4. The other defendant pleaded that he had nothing to do with the management of the property which, he said, was wakf property and that he was merely acting under the orders of defendant 1.

5. The learned Munsiff, before whom the suit was instituted held that Mendhu was a grover-holder and that after the sale of the grove he could not make a valid surrender of the grove to the zamindar. He, however, thought that the suit fell within Section 99, Agra Tenancy Act of 1926 and was not cognizable by the civil Court. He accordingly directed that the plaint be returned to the plaintiffs for presentation to the proper Court., An appeal was filed before the District Judge and one of the grounds taken was that the cause of action of the appellants occurred before the Tenancy Act of 1926 came into operation and that, therefore, the Munsiff had erred in holding that Section 99, Tenancy Act, applied to the case. The learned Judge dismissed the appeal. In this Court, it has been urged, that the views taken in the Courts below were wrong and the suit was cognizable by the civil Court. The learned Counsel for the respondents supported the orders of the Court below on the merits and contended, further, that the revision was not entertainable at all in view of two cases decided by this Court, to be presently mentioned.

6. According to the allegations in the plaint, the plaintiffs' dispossession took place on 18th May 1924, when, for the first time, the defendants misappropriated the fruits of the plaintiffs' grove. The subsequent misappropriations, according to the plaintiffs, took place in May of the two following years, 1925 and 1926. The new Tenancy Act did not come into force till 7th September 1926. Thus the plaintiffs' cause of action was complete before the new Act came into force. There can be no doubt that under the rulings of the Allahabad High Court, a grove-holder was not a tenant under the Tenancy Act of 1901. Since the Tenancy Act of 1926 came into operation, the grove-holder's status is that of tenant. When the dispossession took place, the plaintiffs were not tenants and it cannot be said that the dispossession was that of a tenant by a landholders. The argument, however, for the other side, is that the case falls clearly within the language of Section 99, Agra Tenancy Act and that, therefore, there is no escape from the conclusion that Section 99 applied and the suit should have been filed in the revenue Court. Let us see if this is true.

7. Section 99 reads as follows:

Any tenant... ejected, from... his holding... otherwise than in accordance with the provisions of this Act, by his landholder....

8. I have already pointed out that at the date of dispossession, in 1924, the persons, who were dispossessed, were not tenants. Then, a grove was not a' holding' under the Tenancy Act of 1901, because a land occupied with trees and forming grove was not 'land' which could constitute a holding within the meaning of the Tenancy Act of 1901 Thus two of the conditions laid down in Section 99, Tenancy Act of 1926, are not complied with. Lastly we have to bear in mind the words:

otherwise than in accordance with the provisions of this Act.

9. For the simple reason that the Act of 1926 was not and could not have been in force in 1924, the ejectment of the plaintiffs could not be said as being:

otherwise than in accordance with the provisions of the Act of 1926.

10. The ten words just quoted cannot be treated as a mere surplusage and we cannot read the section as if those words did not exist. For the reasons given above, I am clearly of opinion that the plaintiffs' case does not and could not fall within the purview of Section 99 of the Act of. 1926. That section can apply only to a dispossession which took place after 7th September 1926.

11. There is yet another reason, and a very cogent reason indeed, for holding that the legislature could not have possibly meant to provide for the case of a dispossession of a grove-holder to be covered by Section 99 if the dispossession took place prior to the coming into force of tne Act. The legislature has provided a rule of six months limitation for the institution of the suit under Section 99. If Section 99 and the rule of limitation be applied to the facts of the present case, we must come to the absurd conclusion that the plaintiffs' suit became time barred within six months of their dispossession i.e., on 18th May 1924, nearly two years before the Act of 1926 came into operation. This absurd conclusion is avoided and the entire Act and the policy of the Act can be given an intelligible and coherent meaning, if we accept the view which I have laid down above. This view, in a nutshell, is that the dispossession was not of a tenant, that it was dispossession from something which was not a holding and that it was a dispossession which was not otherwise than in accordance with the provisions of Act 1926. I hold that the suit as instituted was cognizable by the civil Court.

12. The next point to be considered is whether it is not open to the High Court to revise the order directing the plaint to be returned for presentation to the proper Court. The two cases on which reliance has been placed by the learned Counsel for the respondents are Jwala Prasad v. E.I. Ry. Co. [1918] 16 A.L.J. 535 and Chandu Lal v. Kokamal A.I.R. 1921 All. 226. Both the cases are of similar nature. In the case in Jwala Prasad v. E.I. Ry. Co. [1918] 16 A.L.J. 535, the question was whether the plaintiffs' cause of action arose within the jurisdiction of the Court of Cawnpore or whether the suit lay in the Calcutta Court. The suit had been filed in the Cawnpore Court. The Subordinate Judge held that the suit should have been filed in the Calcutta Court. This finding was affirmed on appeal. It was held that this was a finding of fact and law and even if that finding were erroneous, it could not be disturbed in revision. Similarly, in the case in Chandu Lal v. Kokamal A.I.R. 1921 All. 226, the question was whether any part of the cause of action arose within the local limits of the jurisdiction of the Subordinate Judge of Agra. The Subordinate Judge of Agra was of opinion that he had no jurisdiction. The District Judge, in appeal held that the Subordinate Judge had jurisdiction and he directed that officer to try the suit. The decision that had been come to had to be come to, on a consideration of the allegations in the plaint and on evidence that was adduced in the case. The determination of the question depended on a determination of questions of fact and law. It has been repeatedly held by the Privy Council and this Court, that the High Court's revisional power is not meant to correct a mere error of a question of fact or law but was confined to the question of jurisdiction. It may always be said that a Court, when it passes an order on a question of jurisdiction it always considers the matter before it passes the order and therefore when a question of jurisdiction has been decided no revision would lie under Section 115, Civil P.C. If that is so, Section 115 would be of no use where a question of jurisdiction arises, although its only end is the correction of an error as to jurisdiction. In my opinion the learned Counsel for the respondents had misunderstood the effects of the two cases on which be relies. The two cases lay down that where the question whether a particular Court has or has not jurisdiction calls to be determined, on a consideration of the circumstances of the case and the Court decides that the cause of action did not arise within the local limits of the jurisdiction of the Court, that decision is not merely a decision as to the jurisdiction of the Court but is a decision as to certain facts, which if they existed, would determine the question of jurisdiction. The finding on those facts might be a wrong finding, but the High Court cannot interfere with that finding. But where, as in the present case, the question is whether the civil Court or the revenue Court should take cognizance and a Court erroneously decides that the other class of Court should take cognizance of the suit, it, in my opinion, clearly fails to exercise a jurisdiction which is vested in it.

13. In the case of Bisheshar Prasad Panday v. Raghubir : AIR1926All58 the Subordinate Judge, in the Court of first instance, had directed the plaint to be returned for presentation to the proper (revenue) Court. The District Judge on appeal affirmed that decision. This Court interfered in revision and held that the Subordinate Judge had jurisdiction to hear the suit, set eside the order complained of and directed the Subordinate Judge to hear the case. In my opinion, there is no conflict whatsoever, between the cases in Jwala Prasad v. E.I. Ry. Co. [1918] 16 A.L.J. 535 and Chandu Lal v. Kokamal A.I.R. 1921 All. 226, relied on by the counsel for the respondents and the case in Bisheshar Prasad Panday v. Raghubir : AIR1926All58 .

14. In the result, I would allow the application in revision, set aside the order directing the plaint to be returned for presentation to the proper Court and would direct the Munsiff to restore the suit on its original number in the register, in his Court and to proceed with it in accordance with law. I would direct that the cost up to this stage of the litigation in all the Courts should abide the result.

Young, J.

15. I agree.

16. We allow the application in revision, set aside the order directing the plaint to be returned for presentation to the proper Court and direct the Munsiff to restore the suit to its original number in the register and to proceed with it in accordance with law. Costs in all the Courts hitherto shall abide the result.


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