1. This is an appeal by the defendant against whom a decree for ejectment has been passed by the courts below. The connected appeal is by another defendant against whom in another suit a decree for ejectment has been passed by the courts below at the instance of the same plaintiffs. Since the same questions are involved in the two appeals they are being disposed of together.
2. The respondents, claiming to be tenants of the plots in dispute in the two suits, sued the appellants for ejectment on the ground that they had taken unlawful possession of the plots: The suits were filed in the court of a Munsif. They were contested by the appellants on various grounds but not on the ground that the learned Munsif had no jurisdiction to hear and determine them. The defence failed in both the suits with the result that they were decreed.
Appeals were filed against both the decrees; the appellants pleaded for the first time in the lower appellate court that the learned Munsif had no jurisdiction to try the suits. The lower appellate court observed that they ought to have been instituted in a civil court and that the subsequent amendment to Section 180 U. P. Tenancy Act under which such suits should be instituted in a revenue court only had no retrospective effect and did not divest the learned Munsif of his jurisdiction to determine them. It dismissed the appeals and hence these Second Appeals. These appeals came up before our brother Upadhya, who finding that there was conflict of authority on the questions of law arising in them has referred them to a Bench for decision.
3. The main question before us is of jurisdiction. Under Section 9 of the Code of Civil Procedure a civil court has jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The suits in question were instituted in 1945 when the U. P. Tenancy Act No. XVII of 1939 was in force. Section 242 of it provided that:
'All suits and applications of the nature specified in the Fourth Schedule shall be heard and determined by a revenue court, and no court other than a revenue court shall.....take cognizance of any such suit..... .based on a cause of action in respect of which any relief could be obtained by means of any such suit.'
Section 180, with which we would be concerned to these appeals, is one of the sections mentioned in the Fourth Schedule. At that time when the suits were instituted Section 180 provided that:
'Any person taking.....possession of a plot or plots of land otherwise than in accordance with the provisions of law.....without the consent of the person entitled to admit him as tenant shall be liable to ejectment under this section on the suit of the person so entitled.'
In the definition of the word 'tenant' it is stated that the word includes a sub-tenant except when a contrary intention appears. In Ori Lal v. Ganeshi Lal, AIR 1947 Oudh 104 (FB) (A) it was decided by a Full Bench that a suit by a tenant against a trespasser would lie in a civil court and not In a revenue court under Section 180.
One of the reasons advanced in support of the view was that the word 'tenant' in Section 180 was not Intended to Include a sub-tenant and, therefore, a tenant of a plot of land could not be said to be entitled to admit a trespasser as tenant and consequently could not sue him under that section. It was on account of this decision that the respondents Instituted the suits in the court of the learned Munsif. Since they could not sue under Section 180, the jurisdiction of a civil court was not barred. While the suits were pending section 180 was amended by the U. P. Tenancy (Amendment) Act No. X of 1947. After the amendment section 180 read as follows :
'A person taking ..... possession of a plot of land without the consent of the person entitled to admit him to occupy such plot... .shall be liable to ejectment under this section on the suit of the person so entitled.'
Explanation II was also added by the same emendment and it provided that:
'A tenant entitled to sublet a plot of land in accordance with the provisions of the law....may maintain a suit under this section against the person taking... .possession of such plot otherwise than in the circumstances for which provision is made in Section 183.'
Section 183 refers to a suit by a tenant for ejectment of a person claiming rival tenancy rights. The appellants did not claim rival tenancy rights and, therefore, the suits for their ejectment could not lie under Section 183.
According to the explanation added under the Amendment Act, the respondents, who were entitled to sublet the plots in dispute in accordance with the provisions of the U. P. Tenancy Act, could maintain the suits under Section 180 in a revenue court against the appellants. The lower appellate court, however, held that the amendment made in Section 180 was not retrospective and that the jurisdiction that vested in the civil court before the amendment of the Act was not taken away by the amendment. The question is whether this view is correct.
3a. The Amendment Act came into force on 14-6-1947; it contained Section 31 which laid down that:
'All suits pending under the said Act on the date of the commencement of this Act ...... shall be decided ...... in accordance with the provisions of the said Act amended by this Act'.
In other words, retrospective effect was given to the Amendment Act by Section 31 but only in respect of suits pending under the U. P. Tenancy Act on the date of the commencement of the Amendment Act.
The present suits which had been filed in a civil court, were not suits pending under the U. P. Tenancy Act and, therefore, they were not required by Section 31 of the Amendment Act to be decided in accordance with the provisions of the U. P. Tenancy Act as it stood after the amendment. This is the view that has been taken in Bhagwati Chaube v. Ram Adhar Chaube : AIR1953All219 , Shakal Narain v. Avadh Narain, S.A. No. 1781 of 1947 D/- 28-11-1950 (All) (C). But merely because Section 31 did not apply it could not be contended that the amendment made in Section 180 had no retrospective effect.
The Amendment Act, as we said just above, came into force when the suits were pending and the learned Munsif was bound to take into consideration its provisions when disposing of the suits, The position after the amendment of the U. P. Tenancy Act was that the suits that were pending in his court were suits, though not instituted under Section 180, based on causes of action in respect of which relief could be obtained through suits under Section 180. On account of the interpretation placed upon Section 180 in Ori Lal v. Ganeshi Lal (A) tenants could not obtain relief against trespassers by means of a suit under Section 180 but after the amendment they could obtain relief by such a suit.
Therefore, Section 242 at once came into effect to bar the learned Munsif from continuing to hear the suits. Under Section 242 he was debarred not only from entertaining the suits taut also from hearing and determining them. So long as a revenue courts could hear and determine a suit under Section 180, the jurisdiction of a civil court to hear and determine it was barred by the provisions of Section 9 C P. C. The learned Munsif might have had jurisdiction upto 13-6-1947 to hear and determine the suits but on 14-6-1947 he was divested of the jurisdiction.
As soon as a revenue court became entitled to hear and determine them, he lost his jurisdiction because two different courts could not possibly have jurisdiction to hear them. If a revenue court had jurisdiction, that of a civil court was barred by the provisions of Section 242 U. P. Tenancy Act and Section 9 C. P. C. When the learned Munsif ceased to have jurisdiction to hear and determine the suits he should have returned the plaints for presentation to a revenue court. It was really not a question of giving retrospective effect to the provisions of the Amendment Act; it was a question of giving effect to them as soon as they came into force in matters to which they applied.
4. The view that we take was taken by Kidwai, J. in Bhikham v. Natha : AIR1952All188 . The facts in that case were that a suit for ejectment of a trespasser was brought by a tenant in a civil court, it was pending on 14-6-1947 and it was held that the civil court lost jurisdiction to proceed with it. In Munshi v. Shanker, 1956 All LJ 61 (E), Brij Mohan Lall J. in similar circumstances ordered the plaint of a suit filed in a civil court to be returned for presentation to a revenue court.
5. In same cases the contrary view has been or is said to have been taken. The most important of them is Basdeo Singh v. Bharat Singh : AIR1949All542 . A suit was brought by a tenant against a trespasser in a civil court and was decreed by the trial court. An appeal was filed and during its pendency the U. P. Tenancy (Amendment) Act No. X of 1947 came into force. It was held that the amendment did not affect the decree already passed. In Sobha Nath v. Ram Baran : AIR1954All493 , a Full Bench of this Court relying upon Basdeo Singh v. Bharat Singh (F) decided that an amendment of a procedural law, though it has retrospective effect, will not affect the validity of a decree already passed by a competent court only on the ground that during the pendency of an appeal from it the Act was amended and provided a different forum for institution of such a suit.
6. There is material distinction between the facts of these cases and those of the suits before us; there the suits had already been decided before the Amendment Act came into force and, therefore, there did not arise any question of the Civil Court's being dobarred by the Amendment Act, from hearing and determining them. The jurisdiction to entertain a suit is quite different from the jurisdiction to entertain an appeal; Sections 242 TJ., P. Tenancy Act and 9, C. P. C. deal with the jurisdiction to entertain a suit and not with the jurisdiction to entertain an appeal.
The Jurisdiction that the civil court had, in view of Ori Lal v. Ganeshi Lal (A) to hear and determine a suit brought by a tenant against a trespasser continued so long as the U. P. Tenancy Act remained in an unamended form. If it decided the suit before losing jurisdiction under the Amendment Act, the Amendment Act did not annual any thing that had been done validly previously. To this extent it is correct to say that it aid not have retrospective effect; it did not affect decrees already passed which would not have been passed if it had come into force before they were passed. Therefore Basdeo Singh v. Bharat Singh (F) is not an authority for the proposition that a civil court is not divested of its jurisdiction during the pendency of the suit.
Another case is Bhagwati Chaube v. Ram Adhar Choube (B) already referred to. Mootham, J. as he then was, held that Section 31 of the Amendment Act did not apply to a suit instituted in a civil court; but he also held that because it did not apply, the effect of the Amendment Act was not to divest the civil court of the jurisdiction which it admittedly had prior to the operation of the Amendment Act. With great respect we do not see how this follows from the mere fact that Section 31 does not apply to a suit instituted in a civil court. There was no jurisdiction for not giving effect to the Amendment Act on the date on which it came in force.
The effect of the amendment, as we pointed out earlier, was not only to prevent a civil court from tailing cognizance of such a suit, but also to prevent it from hearing and determining it. In the face of the amendment a civil court could not possibly pass a decree in favour of a tenant for ejectment of a trespasser upon his land.
7. Shri Kunzru contended that all that islaid down in the Explanation II added by the amendment is that a suit may be 'maintained' in arevenue court by a tenant against his trespasser.He contended that maintaining a suit is not thesame thing as instituting a suit and that the explanation only permitted a suit already institutedin a revenue court (wrongly according to Ori Lal v.Ganeshi Lal (A)) to be continued in the revenuecourt.
The words used in the Explanation are not merely 'maintain a suit' but 'maintain a suit under this section'. A suit cannot be maintained under Section 180 unless its provisions apply to the cause of action on which it is based. If a suit does not lie under Section 180 we do not understand how it can be continued under that section; the section would have no application to its facts. What we understand from the word 'maintain' is not only to continue but also to institute.
The idea of continuity is there in the word 'maintain' but it does not exclude the idea of institution. There is nothing whatsoever to suggest that the Explanation was meant to apply only after a suit had been (wrongly) instituted in a revenue court. The amendment transferred the jurisdiction from a civil court to a revenue court and if a suit had been (wrongly) instituted in a revenue court, the amendment to Section 180(1) was enough to allow the revenue court to hear and determine it and there was no necessity of any Explanation. If the court trying a suit of which it had taken cognizance wrongfully is given jurisdiction over it during its pendency, it becomes entitled to hear and determine it to do the end notwithstanding the want of jurisdiction at the beginning. We think that the real object behind the Explanation was to emphasise tnat a suit under Section 180 could be instituted by a tenant also.
According to Ori Lal v. Ganeshi Lal (A) it could not be, and the legislature wanted to change the law and consequently amended Section 180(1) toy deleting the words 'as tenant'. It added the Explanation to make it clearer that a suit by a tenant against a trespasser was within the scope of Section 180. We do not agree that the Explanation applies only in Pending suits.
8. We hold that the learned Munsif had no jurisdiction to hear and determine the suits on or after 14-6-1947, on which date a revenue court became entitled to hear and determine them.. He was, therefore, bound to return the plaints for presentation to the competent revenue court.
9. The U. P. Tenancy Act has now been repealed by the U. P. Zamindari Abolition and Land Reforms Act. Under the U. P. Land Tenures (Legal Proceedings) (Removal of Difficulties) Order, 1952, Clause (2) every suit or appeal in respect of any right or liability acquired or incurred under or in pursuance of the U P. Tenancy Act, 1939, must be enquired into and decided under, and in accordance with the provisions of that Act. When the U. P. Zamindari Abolition and Land Reforms Act No. 1 of 1950 came into force, what was Pending was these Second Appeals. Under Clause (2) of the Order they are to be enquired into and decided in accordance with the provisions of the U. P. Tenancy Act.
Therefore, for purposes of these appeals the U. P. Tenancy Act would be deemed to be still in force. Under it the suits will have to be tried by a revenue court and, therefore, we have power to direct the plaints to be returned for presentation to a revenue court.
10. Shri Hari Swarup also contended that Ori Lal v. Ganeshi Lal (A) was wrongly decided and that even under the U. P. Tenancy Act before its amendment the suits should have been instituted only in a revenue court. It is not necessary for us to go into that question now.
11. We allow the appeals, set aside the decrees passed by the courts below and remand thecases to the trial court with the direction that itshall restore the suits to their original numbersand return the plaints to the plaintiffs for presentation to a competent revenue court. The appellant will get his costs of all courts from therespondents.