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Sobhnath Vs. Suraj Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1746 of 1949
Judge
Reported inAIR1957All286
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9; Tenancy Law; Uttar Pradesh Tenancy Act, 1939 - Sections 180; Uttar Pradesh Tenancy (Amendment) Act, 1947
AppellantSobhnath
RespondentSuraj Prasad and ors.
Appellant AdvocateJ. Swarup and ;H. Swarup, Advs.
Respondent AdvocateK.N. Setti, Adv.
DispositionAppeal dismissed
Excerpt:
civil - suit for possession - section 9 of code of civil procedure, 1908 - suit for possession filed by the tenant against the trespasser in the civil court in 1945 - could rightly be maintained in that court - amending act 10 of 1947 unless retrospective cannot divest the plaintiff of his rights. - - it may be that the intention of the legislature, may have been to include a suit by a tenant against a trespasser within section 180 of the tenancy act, but the words of that section as originally stood did not warrant that interpretation and the above full bench decision clearly laid down that the section as originally stood was not applicable to a suit by a tenant against a trespasser.asthana, j.1. this is a defendant's appeal arising out of a suit for possession of plot no, 1465 in village munjhara in the district of mirzapur which has been decreed by the lower courts.2. the suit was brought on the allegation that the plaintiff was the fixed rate tenant of this plot; that the defendant had wrongly taken possession of it and refused to vacate it. the plaintiff, therefore, claimed possession over this plot and rs. 30/-as mesne profits for three years prior to the suit.3. the defendant contested the suit on several grounds. he denied that the plaintiff was the tenant of his plot & pleaded that he himself was the tenant and in possession of it as such; that the plaintiff had not been in possession within 12 years and the suit was, therefore, barred by limitation; that the.....
Judgment:

Asthana, J.

1. This is a defendant's appeal arising out of a suit for possession of plot No, 1465 in village Munjhara in the district of Mirzapur which has been decreed by the lower Courts.

2. The suit was brought on the allegation that the plaintiff was the fixed rate tenant of this plot; that the defendant had wrongly taken possession of it and refused to vacate it. The plaintiff, therefore, claimed possession over this plot and Rs. 30/-as mesne profits for three years prior to the suit.

3. The defendant contested the suit on several grounds. He denied that the plaintiff was the tenant of his plot & pleaded that he himself was the tenant and in possession of it as such; that the plaintiff had not been in possession within 12 years and the suit was, therefore, barred by limitation; that the suit was also barred by limitation under Section 180(2), U. P. Tenancy Act, as the plaintiff had not been in' possession within three years and that the Court had no jurisdiction.

4. Both the lower Courts found that the plaintiff was the tenant of the disputed plot and had been in possession of it within 12 years; that the suit was cognizable by the Civil Court; that the possession of the defendant was that of a trespasser; that the suit was not barred by limitation & the plaintiff was entitled to possession and damages. Accordingly they decreed the suit with costs.

5. The finding of the Courts below that the plaintiff was the tenant of the disputed plot and had been in possession of it within 12 years has not been challenged before me in second appeal Moreover this finding being one of fact is binding on me in second appeal. It was, however, contended before me that the civil Court had no Jurisdiction as the suit fell within Section189, U. P Tenancy Act, 1939.

It was also contended that as the plaintiff did not bring a suit within 3 years of this dispossession he had lost his right under Section 180(2), U. P. Tenancy Act, 1939.

6. The first question which, therefore, arises for consideration is whether the suit was cognizable by the Civil Court.

7. The suit is one for possession of an agricultural plot by the tenant against a trespasser. It was filed in 1945 and was decreed by the trial Court on 31-1-1947. The first appeal was filed in 1947 and was decided on 8-9-1949. The lower appellate Court confirmed the decree of the trial Court and dismissed the appeal. The contention on behalf of the appellant was that in view of Expl. 2 added to Section 180, U. P. Tenancy Act of 1939, by Act X of 1947 the suit should have been filed in the Revenue Court.

It was also contended that Expl. 2 added by Act X of 1947 did not make any change in the existing Section 180 as it stood before the Amending Act but only declared and explained the correct meaning of Section 180 which was applicable not only to a suit brought by a landlord against a trespasser but also to a suit brought by a tenant against a trespasser.

This contention has been negatived by a Full Bench decision of the Oudh Chief Court reported in Ori Lal v. Ganeshi, AIR 1947 Oudh 104 (A). It was held in this decision that Section 180 contemplated: only suits by landlords against persons who had taken or retained possession of agricultural land without any title and did not assert any title to proprietary or under proprietary rights in the same; that the word 'tenant' as used in Section 180 in the expression 'without the written consent of the person entitled to admit him as tenant' did not include a sub-tenant; that a careful examination of the provisions of the section would show that it Indicated a contrary intention within the meaning of Section 3(23).

It was further laid down in this decision thatthe expression 'person entitled to admit him astenant' did not exclude the landlord even where the land had been let out to a tenant; that it meantnothing more than that if the land were not letout to another tenant and the landlord so wished,he could have admitted the person taking or retaining wrongful possession thereof as a tenant, andtherefore a suit by a tenant who was dispossessedof the whole or a portion of his holding by a trespasser for possession and damages would lie in theCivil Court and was not a suit as contemplated by Section 180, U. P. Tenancy Act, 1939.

In view of this decision it cannot be said that Section 180 as it originally stood unamended by Expl. 2, included a suit by a tenant against a trespasser. The mere fact that the amending Act X of 1947 has added an explanation to the original section does not mean that Section 180 as it originally stood was applicable to a suit by a tenant against a trespasser. It is the function of the Courts and not of the Legislature to interpret a particular section or Act.

It may be that the intention of the Legislature, may have been to include a suit by a tenant against a trespasser within Section 180 of the Tenancy Act, but the words of that section as originally stood did not warrant that interpretation and the above Full Bench decision clearly laid down that the section as originally stood was not applicable to a suit by a tenant against a trespasser. In view of this Full Bench decision it cannot be said that the decision of the lower Court that on the date the suit was filed and decreed by the trial Court, the trial Court had jurisdiction is incorrect.

8. The question which next arises for consideration is whether the decree of the trial Court which was correct when it was passed could be set aside because by a subsequent amendment of Section 180 jurisdiction was conferred on the Revenue Court in respect of a suit by a tenant against a trespasser for possession of agricultural land. I do not think that the subsequent amendment of Section 180 will affect the decision of the Courts below if on the date it was passed it was correctly decided according to the provisions of the Act which were applicable at that time.

In my opinion the function of the appellate Court is to rectify or correct the mistakes of the lower Courts & to see that their decisions are correct according to the law applicable at that time, I do not think that an appellate Court shall be justified in setting aside the decision of the trial Court because of certain amendments in the law subsequent to the decision, unless the amendment has been made retrospective and specially applicable to the decisions which have already been given prior to the amendment.

In this connection reference may be made to another Pull Bench decision of this Court reported in Sobha Nath v. Ram Bar an : AIR1954All493 . It was held in this case that an amendment of procedural law though it had retrospective effect will not affect the validity of decrees already passed by a competent court only on the ground that the law of procedure as subsequently amended has prescribed a different forum for the institution of such suits.

It was further held that a decree passed by a Civil Court before Act X of 1947 came into force, even though it might be in appeal, would not be affected merely because a different forum had been prescribed for such suits by the amending Act. In view of this Full Bench decision the decree of the trial Court which was correct according to the law as it stood at that time is not affected by the subsequent amendment of Section 180 which was made after the passing of the decree.

The reason for it is that after the plaintiff had obtained the decree in his favour a right had vested in him and he cannot be divested of such right by a subsequent Act unless that Act is specifically made retrospective so as to divest him of such right. I am, therefore, of opinion that the decree of the trial court Which was passed before the amendment came into force is not affected by the amendment and is a correct and valid decree.

9. The only other point which has to be considered is whether the suit was barred by limitation on the date it was filed in the court of the Munsif. It has been found by both the Courts below that the suit was filed within 12 years of the plaintiff's dispossession.

In the circumstances the suit was not barred under Article 142 or 144 of the Limitation Act. So far as Section 180(2), U. P. Tenancy Act, is concerned it is not applicable for the reasons' already given above and therefore the suit could not be barred by three years rule of limitation.

It is only in those cases where a suit should have been brought under Section 180, U. P. Tenancy Act, against a trespasser and is not so brought that Sub-section (2) would apply and the suit would become barred, by limitation. I am, therefore, of opinion that the finding of the Courts below that the suit was not barred by limitation was correct.

10. It was further contended that the defendant had acquired adivasi rights in the disputed land and, as such, was not liable to ejectment. This right has been conferred under the U. P. .Zamindari Abolition and Land Reforms Act of 1950, Which. Act of course was not in force on the dates the suits were pending in the trial court or in the lower appellate court and therefore this point should: not have been taken into consideration in either of the two courts.

In order to decide this question it will be necessary to go into the evidence and both parties should be allowed an opportunity to produce evidence on this point. In the circumstances I do not think it necessary to decide this question at this stage.

It will be open to the appellant to raise this question when the decree for possession is executed against him and it will be for the execution court to decide whether the appellant has acquired adivasi right and is not liable to ejectment. I, therefore, do not propose to decide this point in this appeal and leave it for decision in the execution proceedings.

11. This appeal, therefore, fails and is dismissed with costs. Leave for special appeal is refused.


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