1. This appeal has arisen out of a suit instituted in 1936 by the special manager, Court of Wards, Balrampur, in the Court of the Civil Judge of Basti for possession of certain plots of land, for damages in respect of the year 1342F and for mesne profits in respect of the year 1343F. The area of land concerned is 121 bighas odd. A sum of Rs. 1123 odd was claimed on account of damages and of Rs. 1211 odd on account of mesne profits. The suit was brought in 1936 and in the following year the Maharaja Sahib of Balrampur was substituted for the special manager, Court of Wards, as plaintiff. A theka of the whole village of Phulpur, in which the land in suit lies, was granted by the Balrampur estate to one Amir Mahton in 1883 and he continued to be thekedar until his death in 1336P. He had a brother, Maula Baksh, and on Amir Mahton's death this brother and his own descendants remained in possession. The suit was instituted against Maula Baksh, the brother, Abdul Karim, a grandson, and one Riyasat Ali, a karinda. Maula Baksh died during the pendency of the suit, when his widow, sons and daughter were substituted for him, and other descendants of Amir Mahton were also brought on the record.
2. The suit was decreed by the Munsif of Basti in 1941, the total sum awarded (on account of mesne profits) for the two years being Rs. 1237-7-3. The decree was maintained by the Additional District Judge in first appeal. The defendants have now come up in second appeal and the only question agitated before us is whether the civil Court had jurisdiction to entertain the suit. That question was raised by the defendants in the trial Court, but there was no issue on it. The plaintiff alleged that from 1343P, he had commenced making collections from the tenants but that the defendants wrongfully remained in possession of the area of 121 bighas odd for which the suit was brought. The defendants pleaded that they were tenants of the plots constituting this area and the Munsif accordingly framed an issue on this plea and submitted it to the revenue Court for decision. This procedure was in accordance with the provisions of Section 273, Tenancy Act of 1926. The record was returned by the revenue Court after some years with the finding that the defendants were not tenants and on this finding the suit was naturally decreed. While the record was in the revenue Court, however, certain changes were made in the law by the enactment of the U. P. Tenancy Laws (Amendment) Act (13 [XIII of 1939) and the U. P. Tenancy Act (17 [XVII] of 1939). The first came into force in October 1989, and the second (which repealed the Act of 1926) on 1st January 1940. The amending Act was a brief one. One of its objects as shown by the preamble was to provide that certain suits should lie in revenue Courts and not in civil Courts.
3. There can be no doubt that had the present suit been brought in the revenue Court it would have been brought under the provisions of Section 44, Agra Tenancy Act, that is for the ejectment of a trespasser and for damages, limited by the section to 'four times the annual rent value at the rates applicable to statutory tenants under Section 59.'
4. Section 230 of the same Act provides that subject to the provisions of Section 271 (which directs the revenue Court on a plea of proprietary title to submit an issue on that question to the civil Court), all suits and applications of the nature specified in Schedule 4 (which includes suits under Section 44) shall be heard and determined by the revenue Courts and no Court other than a revenue Court shall, except by way of appeal or revision as provided in the Act, take cognizance of any such suit or application, or of any suit or application based on a cause of action in respect of which adequate relief could be obtained by means of any such suit or application. An explanation is added to the effect that if the cause of action is one in respect of which adequate relief might be granted by the revenue Court it is immaterial that the relief asked from the revenue Courts may not be identical with that which the revenue Court could have granted. Now Section 2 of the amending Act provides that the word 'adequate' shall be omitted from Section 230 and the explanation thereto; and Section 4 provides that all suits which under the provisions of Section 230, Agra Tenancy Act, 1926, as so amended, would lie in the revenue Court and which were pending at the date of the commencement of the Act in any civil Court of first instance shall at such commencement be transferred to the revenue Court having jurisdiction, and such revenue Court shall proceed to decide such suits as if the same had been instituted in a revenue Court and the proceedings recorded by the civil Court had been recorded by it.
5. Section 242, U.P. Tenancy Act, corresponds to Section 230 of the Act of 1926 as so amended, that is with the word 'adequate' omitted. It is difficult to resist the view that the Legislature assumed that once this word was deleted from the section the civil Court retained no jurisdiction in such suits. This however, would not appear to be the view taken by the Full Bench of this Court in Manohar Singh v. Sheo Saran : AIR1927All369 . It is true that the Full Bench referred to the limitation on the amount of damages in Section 44 and to the inclusion of the word 'adequate' in Section 230, but they appear to have been more influenced by Section 273 and the note at the head of Schedule 4 to the Act that the jurisdiction specified is subject to the provisions of that section. They say (at page 135):
If it were to be held that all suits relating to land over which the defendant has obtained possession without consent fall under Section 44, and that Section 230 confers exclusive jurisdiction in respect of it on the revenue Court, then the provisions o Section 273 would become altogether superfluous, for it would be difficult to imagine any case which would be covered by this section and would not fall under Section 44.
Moreover, if the question had been decided purely with reference to the use of the word 'adequate' it would have been necessary to determine whether in fact the plaintiff could not have obtained adequate relief in the revenue Court. But no attention was directed to this aspect of the question, and indeed it does not appear from the judgment that any damages were claimed at all. The suit was apparently brought only for ejectment, so that no question arose as to the adequacy of the relief which could have been granted by the revenue Court.
6. The position under the U.P. Tenancy Act of 1939 was considered by a Bench of this Court in Parmeshwari Das v. Angan Lal : AIR1944All81 when it was held that the changes made in the law by that Act had not affected the jurisdiction of the civil Courts in such suits, and that the law laid down in Manohar Singh v. Sheo Saran : AIR1927All369 was still good law. No reference was made to the amending Act of 1939, which was operative for a few months only, as the Act of 1926 was repealed when the U.P. Tenancy Act came into force. The Bench considered the effect of the omission of the word 'adequate' and appear to have regarded this as the only material change to be considered in this connexion. They mentioned that Section 288 of the new Act took the place of Section 273 of the old Act and assumed that the argument which found favour with the Pull Bench was still valid. With respect I must confess to some doubt about this assumption. In place of the words : 'If...the defendant pleads that he holds such land as the tenant of the plaintiff' the words : 'If...any question regarding tenant right arises' have been substituted, a much more general expression. I doubt whether it could now be said that if the civil Courts have no jurisdiction in cases of this nature Section 288 would be superfluous. It may be that the Legislature recognized after the enactment of the amending Act that in view of the Pull Bench decision the omission of the word 'adequate' was insufficient to accomplish the object desired and for this reason enlarged the scope of Section 288. But as I do not think that the new Act had retrospective effect so as to remove from the jurisdiction of civil Courts suits rightly instituted in those Courts it is unnecessary to pursue this aspect of the matter further.
7. Whatever the legal position may be thought to be under the present Act there can be no doubt that a mandatory provision was enacted during the pendency of this suit in the Munsif's Court under which the suit should have been transferred to the revenue Court having jurisdiction, and that this mandatory direction was not complied with. The Additional District Judge before whom this question was raised in first appeal has not, in my judgment, dealt with it satisfactorily. He observed that the Munsif could not take action on the amendment because the case was before the revenue Court; and further that it was open to the defendants to move the Court to take action, but they did not do so. Neither argument has any force. The suit was still pending in the Munsif's Court during the period of submission to the revenue Court and there was nothing to prevent its transfer. It was not for the Munsif to wait for the defendants to move him to act in compliance with the law; he should have done so on his own initiative. It has been suggested that Section 4 of the amending Act would not apply in the present case because the suit as brought in the civil Court would not lie in the revenue Court. No doubt it was not brought under the provisions of Section 44, Agra Tenancy Act; naturally it would not have been brought under a provision of that Act, but it was a suit to recover possession and damages from trespassers, precisely of the same nature as a suit under Section 44. If it were to be held that for a civil suit to be eligible for transfer under Section 4 it must be framed exactly as a suit under the Tenancy Act the section would be entirely inoperative. The explanation to Section 230 makes it quite clear in my opinion that such a suit would lie in the revenue Court.
8. Another objection taken to the provisions of Section 4 is that under the Code of Civil Procedure the Munsif had no power of transfer and no such power is expressly given by the section. In my opinion, where a Court is directed to take certain action the conferring of power to take it is implied. No power is conferred by the Code on revenue Courts to submit issues to civil Courts for decision or vice versa but no one would contend that on this account the provisions in the Tenancy Act making such directions are ultra vires. In my judgment, the only crucial question is whether by the direction for transfer in Section 4 the jurisdiction of the civil Court was abrogated. On consideration I have come to the conclusion that it was not. The Legislature assumed erroneously on the Full Bench decision that on the amendment which it was making in Section 230 the civil Court no longer retained jurisdiction in such cases, and on this assumption provided for transfer. I am not prepared to read into a direction for transfer a withdrawal of jurisdiction which I do not believe it was intended by this provision to enact. There is no express abrogation and it is not necessarily implied in such a direction. I would, therefore, maintain the decision of the Courts below.
9. Reference was made in arguments to Section 269 of the Act. This section provides that when, in a suit instituted in a civil or revenue Court, an appeal lies to the District Judge or High Court and objection is taken in the Court of first instance that the suit was instituted in the wrong Court, the appellate Court shall dispose of the appeal as if the suit had been instituted in the right Court if it has before it all the material necessary for the determination of the suit. In the present case, objection was taken that the suit was instituted in the wrong Court, but this objection was not well founded. On the finding on the tenancy issue and on the view taken by the Full Bench in the case cited, there can be no doubt that the civil Court initially had jurisdiction. If the objection had been valid the section would be inapplicable because it was held by a Full Bench of this Court in Ram Iqbal Rai v. Talessari Kuari : AIR1930All713 followed by a Division Bench in Kashi Kahar v. Asharfi Singh : AIR1938All511 that Sections 268 and 269 apply only to cases in which if rightly instituted in a civil or revenue Court, an appeal lies to the District Judge, and cannot consistently with the provisions of Sections 230 and 242 be applied to suits wrongly instituted in a civil Court in which, if rightly instituted in the revenue Court, an appeal would have lain on the revenue side. If the suit had been instituted in the revenue Court an appeal would have lain not to the District Judge but to the Collector or Commissioner. I would dismiss the appeal with costs.
10. I have also arrived at the conclusion that the appeal should be dismissed, though my reason for arriving at that conclusion are somewhat different. I, further, agree with my learned brother's opinion that the reason given in the judgment of the lower appellate Court for the conclusion, that the defendants-appellants' contention on the question of jurisdiction, was untenable, were not good reasons. I do not, however, agree with some of the observations made by my learned brother with regard to the effect of the U.P. Tenancy Laws (Amendment) Act (13 [XIII] of 1939) on suits which had been rightly instituted in. the civil Court and were pending at the time of the coming into force of that Act. It was conceded by learned Counsel for the appellants that the suit giving rise to this appeal had been rightly instituted in the civil Court, and my learned brother has also expressed the same opinion. I entirely agree with that view. As my learned brother has pointed out, the plea of tenancy raised by the defendants had nothing to do with the theka which was in respect of the proprietary or zamindari rights. It was stated in para. 6 of the plaint that since 1343 Pasli the plaintiff had resumed possession of the zamindari, in respect of which the theka had been given, and had himself started making collection from the tenants. The defendants' case also-was that the theka was no longer in existence and that the plaintiff was in possession of the zamindari rights. The plea of tenancy was based on the allegation that the defendants' ancestor had been a tenant of-the plots, from which ejectment was sought by the suit, from long before the theka and had, in fact, acquired occupancy rights, and it was pleaded that upon the termination of the theka (during the currency of which the tenancy rights had remained in abeyance as the tenant himself had become the thekadar of the zamindari) the tenancy rights had revived. This plea was found by the revenue Court, to which the issue relating thereto-had been referred under Section 273, Agra Tenancy Act of 1926, to be without foundation. The result was that the suit continued to be a-simple suit for possession of immovable property against persons who, according to the-plaintiff, had wrongfully dispossessed him. That was the nature of the suit according to the allegations made in the plaint. It may' incidentally, be mentioned here that the opening words of Section 273, Agra Tenancy Act, 1926, 'If in any suit relating to an agricultural holding instituted in a civil Court...' clearly show that suits relating to lands which are of the nature of an agricultural-holding could be instituted in the civil Court. Thus, the civil Court in which the present suit was instituted had jurisdiction to entertain it. The question that arises, therefore, is as to the effect of the U.P. Tenancy Laws (Amendment) Act, (13 [XIII] of 1939) on suits of this nature which were pending at the date when that Act came into force. In view of what I have said above, it appears to me to be clear that the present suit, when brought, and up to the date of the commencement of Act 13 [XIII] of 1939 was not a suit that could possibly be described as a suit which, under the provisions of Section 230, Tenancy Act of 1926, lay in the revenue Court. The only argument, then, open to the appellants is that the amendments made by Act 13 [XIII] of 1939 in the Tenancy Act of 1926 resulted in converting the present suit, and all other suits of the same nature, into suits which, under the provisions of Section 230, Tenancy Act of 1926, lay in the revenue Court. Now, the only amendment made by Act 13 [XIII] of 1939 in the Tenancy Act, 1926, with which we are concerned, is that made by Clause (2) of Section 2 of that Act which enacted that the word 'adequate' shall be deleted from Section 230 and the Explanation thereto. The argument of the appellants, then, comes to this that, in consequence of the omission of the word 'adequate' from Section 230 and the Explanation all suits by which a landlord claimed the reliefs of possession and mesne profits against a person who had trespassed upon any plot or plots belonging to him which were used for agricultural purposes, had to be brought in the revenue Court under Section 44, Tenancy Act, 1926. This is a proposition to which I find it very difficult to assent, for it will lead to results which would be startling. I consider it sufficient to say that it has been definitely held by a Bench of this Court in Parmeshwari Das v. Angan Lal : AIR1944All81 that the omission of the word 'adequate' did not bring about any change in the law and that the Full Bench decision in the case in Manohar Singh v. Sheo Saran : AIR1927All369 continues to be good law. I entirely agree with that decision and do not share the doubts entertained by my learned brother as to its correctness. That being so, even on the passing of the Amending Act 13 [XIII] of 1939, the ruling of the Full Bench in Manohar Singh v. Sheo Saran : AIR1927All369 continued to govern suits like the one out of which this appeal has arisen. Consequently, the suit did not, by reason of the passing of Act 13 [XIII] of 1939, become a suit which, 'under the provisions of Section 230, Agra Tenancy Act, 1926, as amended by this Act, would lie in the revenue Court.'
11. As to the argument that Section 4 of Act 13 [XIII] of 1939 did not expressly confer on the Munsif or the civil Judge, as the case may be, the power to transfer suits of the nature mentioned in the section from their Court to the revenue Court, I am bound to say that the words 'shall be transferred' do not appeal to me to be sufficient to confer a power which the Munsif or the civil Judge did not otherwise possess. It is hardly necessary to point out that the argument is not that, even if the Legislature had used clear words expressly conferring the power on the Munsif or the civil Judge as it has done in the provisions relating to the submission to the revenue Court of an issue regarding tenancy rights the conferment of the power would have been ultra vires. The argument is that, as the section only says 'shall be transferred' and does not indicate the officer or Court or tribunal or authority by whom the suits were to be transferred to the revenue Court, it fails to confer the power of transfer on the civil Court of first instance in which such suits were pending. The contention is that, even if it be assumed that the intention of the legislature was that the power of transfer in the case of such suits was to be exercised by the civil Court of first instance in which such suits were pending, the Legislature failed to express that intention in clear language. I am not prepared to say that this is altogether an untenable argument. I do not, however, consider it necessary to pursue the matter further. In the first place, it appears to me that the question now is one merely of academic interest, as there are not likely to be any further cases in which Act No. 13 [XIII] of 1939 has to be interpreted. In the second place, my learned brother has held that it would not be right to read into a direction for transfer a withdrawal of jurisdiction and that, there being no express abrogation of the jurisdiction of the civil Court and no such abrogation being necessarily implied in a direction for transfer, the civil Court cannot be held to have lost jurisdiction over the present suit, and I agree with that conclusion. That is sufficient for the disposal of this appeal.
12. The appeal is dismissed with costs.