1. This is a reference, dated 26th September 1941, by the Munsif of Pilibhit under Section 289, U.P. Tenancy Act (17 of 1939), by which he has referred the following issue for the determination of this Court:
Whether in view of the change introduced by the Legislature in Sections 44, 271, 273 and 230 of Local Act 3 of 1926 which find place as Sections 180, 286, 288 and 242, respectively in Act 17 of 1939, the law laid down in the Full Bench ruling in Mohammad Muslim v. Maharania : AIR1927All369 is still the law of the land?
2. This reference is made by the Munsif in relation to a suit which is pending in his Court for recovery of possession of four plots of land situated in mohal Lakhan of village Beharipur Bhaira in Pilibhit district. The plaintiffs, Parmeshwari Das and others, and the defendant, Angan Lal, at one time were the joint proprietors of the aforesaid mohal. At the instance of the defendant, an imperfect partition of the mohal was made by the revenue Court and two pattis were formed, namely Gulabi and Asmani, the former of which was allotted to the defendant and the latter to the plaintiffs. According to the terms of the partition, any khudkasht plots of a co-sharer of less than ten years standing was not to be regarded as the sir of that cosharer if the khudkasht plots were allotted to the patti of the other cosharer. The plots in dispute Nos. 438, 439, 569/3 and 572/1 were the khudkasht of the defendant but of less than ten years and they were allotted at the partition to the patti of the plaintiffs. The partition came in force from 1346 P., but notwithstanding the coming into force of the partition the defendant continued his khudkasht in the plots in dispute, and as a result the plaintiffs raised an action in the Court of the Munsif of Pilibhit for the ejectment of the defendant and for recovery of Rs. 50 as compensation for wrongful use and occupation of the plots. The plaintiffs alleged that the possession of the defendant was in contravention of the mode of partition settled between the parties and was wrongful and consequently the defendant was liable to ejectment and to pay compensation. A preliminary issue arose in the case whether the suit was cognizable by the civil Court. The Munsif expressed the view that under the previous Tenancy Act (3 of 1926), and in view of the authorities of this Court pronounced on that statute the suit would have been cognizable by the civil Court, but the Tenancy Act (17 of 1939) which is now in force and which had repealed the previous statute has been materially changed and in view of the change, it is doubtful whether the authorities of this Court on the previous statute can now be regarded as good law. Taking this view of the matter, he formulated the above question and has referred it to us under Section 289, U.P. Tenancy Act (17 of 1939).
3. As we read Clauses (1), (4) and (5) of Section 289, they do not seem to authorize a direct reference of an issue or question of law for the determination of this Court. That section only authorizes a civil or revenue Court when it is in doubt, whether it is competent to entertain any suit, to submit the record of the cases with a statement of the reasons for its doubt to the High Court and on such reference being made the High Court may order the Court either to proceed with the ease, or to return the plaint for presentation to such other Court as it may declare to be competent to try the same, and the order of the High Court shall be final and binding on all Courts subordinate to it or to the Board. Strictly speaking, the Munsif after stating the reasons for his doubt should have sought direction from this Court as to whether he should go on with the suit or return the plaint for presentation to some other Court, and he should not have formulated the question or issue for the answer to be made by this Court. We do not, therefore, propose to answer the question propounded by him, but in giving the direction about the disposal of the suit pending before him naturally we shall have to take into consideration the question of law raised by the Munsif and to express our views upon it.
4. The suit before the Munsif is, what is popularly known as, a title suit in which the plaintiffs seek to eject the defendant on the basis of their title alleging that the defendant in contravention of the terms of the mode of partition is in possession of the property without any title and claim compensation for wrongful use and occupation. It relates to four plots of land situated in an agricultural village which plots for sometime past have been under cultivation of the defendant. In the Agra Tenancy Act (3 of 1926), under Section 44, a right was given to the proprietor of the land to eject a trespasser and to recover damages to the extent of four times the annual rental value of the land, and by Section 230 of the Act the jurisdiction of the civil Court was barred with regard to suits which were provided in. Schedule 4 of the Act and a suit by the proprietor against the trespasser was provided at serial No. 2 of group B. A question arose whether notwithstanding these provisions the civil Court retained its jurisdiction to eject a trespasser or not and in a series of decisions including a Pull Bench decision, this Court maintained the view that the civil Court retained its jurisdiction to eject a trespasser and Section 44, Agra Tenancy Act (3 of 1926), only provided an alternative and speedier remedy to eject a trespasser: see Debi Sahai v. Daulat : AIR1927All346 ; Mohammad Muslim v. Maharania : AIR1927All369 ; Mt. Raji v. Ram Lagan : AIR1930All304 ; Nazir Singh v. Lakhu Ahir : AIR1935All422 ; Jagdamba Singh v. Ram Sarup : AIR1937All415 and Lachhmina Kunwari v. Makfula Kunwari : AIR1938All316 .
5. The main arguments in support of this view were two. Firstly that Section 230, Agra Tenancy Act (3 of 1926) excluded the jurisdiction of other Courts in relation to suits 'based on a cause of action in respect of which adequate relief could be obtained by means of a suit' in the revenue Court, and Section ii, Agra Tenancy Act, limited the claim of damages to four times the annual rental value of the holding. It was, therefore, manifest that where adequate relief could not be obtained from revenue Court, for example, where the claim for damages exceeded the limit prescribed by the Tenancy Act or where along with agricultural land non-agricultural land also was a subject-matter of ejectment, the plaintiff could not get adequate relief from the revenue Court if he were compelled to institute a suit in the revenue Court and consequently such suits would lie in civil Courts. And secondly, Section 273, Agra Tenancy Act, provided that if in any suit relating to an agricultural holding instituted in a civil Court the defendant pleads that he holds such land as the tenant of the plaintiff or of a person in possession holding from the plaintiff, the civil Court shall frame an issue on the plea of tenancy and secure a finding from the revenue Court on that issue and shall determine the suit accepting the finding of the revenue Court. The statute, therefore, obviously contemplated institution of suits in relation to agricultural holdings in a civil Court and if the entire jurisdiction of the civil Court with regard to agricultural holdings was to be excluded this section would become superfluous.
6. By the U.P. Tenancy Act (17 of 1939), Section 180 takes place of the previous Section 44, Section 242 of the previous Section 230 and Section 288 of the previous Section 272. But one important amendment has been made in one of these sections, namely, 230 old which corresponds to 242 new. The old provision which excluded jurisdiction of the civil Court only when adequate relief could be granted by the revenue Court has now assumed a different form and the important word 'adequate' has been deleted from the section and the section now excluded jurisdiction of all suits 'based on a cause of action in respect of which relief could be obtained by means of any such suit' in revenue Court. And the whole controversy in the case is whether as a result of this amendment the jurisdiction of civil Court is excluded in suits against a trespasser even when the plaintiff cannot get full relief from the revenue Court and even in cases where he can get only partial or insignificant relief. In our opinion, the fact that the word 'adequate' which previously existed in the section and does not find place in the new section does not make any real difference on the question of the interpretation of the section. Even now, the section excludes only those suits based on a cause of action in respect of which relief could be obtained by means of any such suit' in the revenue Court, and though the word 'relief' may not mean the entire relief at the same time it does not mean insignificant relief and the natural meaning of the word relief as occurring in the section is that it must be either the relief which the plaintiff claims or a substantial portion of it. In our opinion, the amendments made in the U.P. Tenancy Act (17 of 1939) do not substantially affect the grounds upon which Mohammad Muslim v. Maharania : AIR1927All369 was decided or the subsequent cases which followed that decision and the law laid down in those cases is still good law. We accordingly direct the Munsif to proceed with the case.