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Mahmud HusaIn Khan Vs. Radha Kishun - Court Judgment

LegalCrystal Citation
SubjectTenancy ;Civil
CourtAllahabad
Decided On
Reported inAIR1944All15
AppellantMahmud HusaIn Khan
RespondentRadha Kishun
Excerpt:
.....act and if there is no such corresponding provision, the proceedings relating to such suit or decree shall be quashed. chandra bhan agarwala, whose brief holder appears in support of the decision of the court below in his excellent book on the..........they will be governed by the new act.the question is whether the new act expressly provides that suits, appeals and proceedings in execution will be governed by the new act. in this connexion reliance is placed by learned counsel for the respondent on section 296 of act 17 of 1939. that provision is in the following terms:a suit under any of the provisions of the agra tenancy act, 1926, or the oudh rent act, 1886, which is pending at the commencement of this act or a decree under any of the provisions of either of these acts, which has not been satisfied in full at such commencement, shall be decided or executed, as the case may be in accordance with the corresponding provision of this act and if there is no such corresponding provision, the proceedings relating to such suit or decree.....
Judgment:

Bajpai, J.

1. This is an appeal by the defendant and arises out of a suit which was instituted on 28rd December 1939, by Radha Kishun for arrears of rent. It is common ground that on that date, namely 23rd December 1939, the Agra Tenancy Act of 1926, was in force. The suit was filed in the Court of an Assistant Collector of. the second class and therein the defendant set up a proprietary title in himself on the basis of an award decree of 1884 which was held to be binding between the parties on 11th November 1937 in Suit No. 13 of 1936. A request was made that an issue regarding the question of proprietary title be sent to the civil Court if the learned Assistant Collector was not satisfied with the decision of the civil Court in Suit No. 13 of 1936. The plaintiff filed a copy of the judgment of the Munsif dated 27th October 1934 and contended that the matter had been decided in favour of the plaintiff in that litigation. The learned Assistant Collector on 11th November 1937, came to the conclusion that the question of proprietary title between the parties had been decided in 1937 and that the judgment operated as res judicata between the parties. In that case according to the Assistant Collector it was held that the defendant was the proprietor of the plot. The suit was, therefore, dismissed on 30th November 1940. By this time the U.P. Tenancy Act of 1939, had come into force.

2. There was an appeal to the Collector and he on 20th January 1941 came to the conclusion that the plaintiff's suit ought to be decreed inasmuch as the Munsif's judgment on 27th October 1984, referred to above operated as res judicata between the parties and not the later decision of 11th November 1987. The defendant went up in appeal to the District Judge on the ground that the question of proprietary title was raised between the parties and an issue ought to have been remitted to the civil Court if the revenue Court was in doubt as to which of the two decisions of the civil Court operated as res judicata. The appeal obviously was filed under the provisions of Section 243, Agra Tenancy Act of 1926.

3. A preliminary objection was taken on behalf of the plaintiff-respondent and it was argued that no appeal lay. It was said that under Section 266, U.P. Tenancy Act of 1939 an appeal lay to the District Judge against the appellate decision of the Collector only when a question of jurisdiction was decided by the Courts below and was in issue in appeal. It is conceded that no question of jurisdiction was involved in this case. The submission on behalf of the defendant in the Court of the District Judge was that the appeal would be governed by the Agra Tenancy Act of 1926 and if a reference is made to Section 243 of that Act, then it will be clear that an appeal lay not only on a question of jurisdiction but also on a question of proprietary title and it is common ground that in this particular case a question of proprietary title was in issue in all the Courts.

4. The learned District Judge allowed the preliminary objection to prevail and held that no second appeal lay in the Court of the District Judge. It is against this decision that the present appeal has been filed, and the submission is reiterated that an appeal did lie in the Court of the learned District Judge and that the provisions that ought to govern the present case are the provisions of Section 243 of the old Act. It is contended that Section 296 of the Act of 1939 has no application to the facts of the present ease and consequently Section 266 of the same Act, is also inapplicable. I proceed to determine the rival arguments. In Ram Singha v. Shankar Dayal ('28) 15 A.I.R. 1928 All. 473 it was held that

a right of appeal in a suit is governed by the law prevailing at the date of the institution of the suit, and not by the law prevailing at the date of the decision of the suit or at the date of the filing of the appeal.

The question in this case was whether the Agra Tenancy Act of 1901 would govern the appeal or the Agra Tenancy Act of 1926. The suit was a suit for arrears of rent and was Sled in the Court of the Assistant Collector when the Tenancy Act of 1901 was in force. Before it could be decided the new Act came into force on 7th September 1926. The suit was decreed on 23rd December 1926. It was, held in this case that the appeal will be governed by the Act of 1901. In Alley Rasul Ali Khan v. Balkishun : AIR1934All709 Mukerji and Young JJ. held that

where a new Act is passed subsequent to the filing of a suit, the suit and an appeal or the proceedings in execution arising therefrom are governed by the old Act unless the new Act expressly provides that they will be governed by the new Act.

The question is whether the new Act expressly provides that suits, appeals and proceedings in execution will be governed by the new Act. In this connexion reliance is placed by learned Counsel for the respondent on Section 296 of Act 17 of 1939. That provision is in the following terms:

A suit under any of the provisions of the Agra Tenancy Act, 1926, or the Oudh Rent Act, 1886, which is pending at the commencement of this Act or a decree under any of the provisions of either of these Acts, which has not been satisfied in full at such commencement, shall be decided or executed, as the case may be in accordance with the corresponding provision of this Act and if there is no such corresponding provision, the proceedings relating to such suit or decree shall be quashed.

It is clear therefore that under the above provisions suits and execution applications alone are to be decided according to the provisions of the new Act. I can safely presume that the. authority in Alley Rasul Ali Khan v. Balkishun : AIR1934All709 was before the Legislature when Section 296 was enacted. Specific reference was made to suits and to execution applications, but no provision was made regarding appeals, and it is reasonable to infer that appeals were left to be decided in the manner in which the earlier authorities left appeals to be decided. I am further supported in the view which I have taken by the decision in Bindraban Katiar v. Ganga Ram : AIR1940All445 Collister J. in that case observed as follows:

When the Legislature employs any particular word, that word must be read in its literal and technical sense unless the contrary intention appears or can reasonably be inferred. No attempt has been made to show me that any such contrary intention appears in Act 17 of 1939, and I do not find any indication of such intention. I think that, when the Legislature used the word 'suit' it meant suit and nothing else. Suits and appeals are separately dealt with in the Act and I have little doubt that, if the Legislature had intended that Section 296 should apply to appeals, it would have said so in specific terms. And the reason why it did not make Section 296 applicable to proceedings which have reached the stage of an appeal is, I think, obvious.... If the defendant had any right of appeal at all, it lay under Act 3 of 1926,...

Mr. Chandra Bhan Agarwala, whose brief holder appears in support of the decision of the Court below in his excellent book on the U.P. Tenancy Act of 1939, page 1018 writes as follows:.the Act makes a sharp distinction between a 'suit' and an 'appeal.' The section speaks of 'the suit...shall be decided.' This language refers to the decision by the trial Court in the suit and not by the appellate Court in appeal. An appeal does not so much 'decide the suit,' as it 'tests the soundness of the decision of the inferior Court'.... The Board has held that 'in deciding appeals all that the Courts have to see is whether under the substantive law prevailing at the time when the original suit was decided, the decision was correct according to law, and that therefore Section 296 of the Act does not apply to appeals. The same view has now been taken by the Hon'ble High Court.

It is not usual to cite the observations of a living author, but in the present case I have taken the liberty to do so inasmuch as Mr. C.B. Agarwala's brief-holder is contending for the proposition which is against the view held by his principal in his book. I obtained the paper book of the judgment of the High Court to which reference has been made in Mr. Agarwala's book. The reference is to Thakur Rabi Karan Singh v. Kr. Mohammad Abdul Jalil Khan Second Appeal No. 1341 of 1936 decided by a Bench of this Court on 2nd May 1940. I was a party to that decision and it was held there that

a careful reading of Section 296 makes it clear that the section has no application to appeals, but it is confined to suits pending at the commencement of the Act. The principle that in certain matters an appeal is a continuation of the suit cannot possibly apply to Section 296 because here it has been dearly provided that only a suit under any of the provisions of the Agra Tenancy Act of 1926 which is pending at the commencement of this Act shall be disposed of in accordance with the corresponding provision of the Act of 1939.

5. For the reasons given above, I allow this appeal, set aside the judgment and decree of the learned District Judge and send back the case to that Court with directions to re-admit the appeal on its original number and to dispose of it according to law. Costs here and heretofore will abide the event.


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