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Ludur Vs. Ram Raj and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 239 of 1947
Judge
Reported inAIR1954All171
ActsTenancy Law; Uttar Pradesh Tenancy Act, 1939 - Sections 183; Code of Civil Procedure (CPC) , 1908 - Sections 9; Limitation Act, 1908 - Sections 29
AppellantLudur
RespondentRam Raj and ors.
Appellant AdvocateB.K. Dhaon, Adv.
Respondent AdvocateN. Bannerji, Adv.
DispositionAppeal dismissed
Excerpt:
civil - institution of suit - section 183 of u.p. tenancy act, 1939 - unlawful possession of plots - suit can be instituted under the provisions of the act as it stood then - defendant should not be enough to decide the forum of a suit. - - we are, therefore, clearly of opinion that a suit such as the one which has given rise to this appeal and which was within the cognizance of the civil court, and was brought presumably under the provisions of section 9 of the code of civil procedure, is to 'be governed by the provisions of the indian limitation, act the only articles which apply to such a case are arts......special period of limitation provided in the u. p. tenancy act is limited in its application to suits brought under the u. p. tenancy act and not to suits brought under any other provision of law. no authority bordering on the question in issue has been cited, but the learned counsel for the appellant has cited some rulings to show that the limitation provided in a special enactment shall override the enactment in the indian limitation act. there can be no dispute that where a period of limitation provided by the indian limitation act for a certain suit or suits has been varied or curtailed by any special enactment, the period of limitation provided by the special enactment shall prevail, and the period of limitation provided in the indian limitation act would not be available. the.....
Judgment:

Randhir Singh, J.

1. This appeal originally came up for hearing before a learned single Judge of this Court who thought that the points involved in this case reserved consideration by a Division Bench. The case was therefore listed before this Bench. It arises out of a suit instituted by the plaintiffs respondents for possession of some plots of land which were a part of the tenancy holding of the plaintiffs but which had been taken possession of unlawfully by the defendant appellant. The defendant contested the suit on the ground that the plots were given to him under a private partition and as such he was a tenant of the plots. Pleas of limitation and jurisdiction were also raised and it was contended that the suit should have been instituted in the revenue court and that it was barred by limitation.

2. As the defendant raised a plea of tenancy, an issue about tenancy was referred to the revenue Court. The revenue Court before deciding the issue remitted to it by the Civil Court, impleaded the landlord. The revenue Court ultimately came to the conclusion that the defendant was not a tenant and this finding was sent back to the Civil Court. On receipt of this finding the Civil Court decreed the suit. It also found that the suit was within the cognizance of the Civil Court and was not barred by limitation. The defendant went in appeal to the District Judge. The Civil Judge who heard the appeal concurred with the findings of the trial Court and dismissed the appeal. The defendant has now come up in second appeal.

3. Two points have been urged on behalf of the appellant. Firstly it was urged that the suit was covered by Section 183, U. P. Tenancy Act and as such the suit should have been instituted in the revenue Court and not in the civil Court. Section 183 was amended in 1947, and after the amendment there is no doubt that a suit such as the one which has been instituted by the plaintiffs, ought now to be instituted in the revenue Court. The suit which has given rise to the present appeal, however, was instituted in 1945 and we have to see whether such a suit could be instituted in the civil Court under the provisions of the Act as it stood in 1945.

There has been a conflict of opinion between the Allahabad High Court and the erstwhile Oudh Chief Court on a matter of jurisdiction in such suits. The Allahabad view was that a suit by a tenant could not be instituted in the Civil Court and that the only forum for such a suit was the revenue Court, vide -- 'D. N. Rege v. Muhammad Haider', : AIR1946All379 . The matter came up before a Full Bench of the Oudh Chief Court in 1947 and it was held that it was open to a tenant to institute a suit against a trespasser in the Civil Court, vide -- 'Ori Lal v. Ganeshi', AIR 1947 Oudh 104 (FB) (B). The plaintiffs belonged to Oudh and were governed by the laws prevailing in Oudh. We are, therefore, not concerned with the disagreement on this point between the two Courts and on the view of the Oudh Chief Court the plaintiffs were entitled to maintain the suit in the Civil Court. Originally it was argued on behalf of the appellant that even before the amendment of Section 180, the suit should have been instituted in the revenue Court inasmuch as the defendant in his defence pleaded that he was a tenant and the landlord also, when he was impleaded in the revenue Court, supported him. Primarily the forum is to be decided on the allegations made in the plaint. It may also perhaps be conceded that a finding on the plea raised in defence may also affect the jurisdiction, but mere allegations made by a defendant should not be enough to decide the forum of a suit. Learned counsel for the appellant did not, therefore, towards the close of his arguments, press this point.

4. The other point which is more important is about limitation. The present suit was instituted on 27-8-1945, and it was mentioned in the plaint that the defendant had entered into wrongful possession of the plots in dispute without rights or title sometime in September, 1942. This suit was, therefore, instituted about three years after the cause of action for the suit arose. The U. P. Tenancy Act has provided a period of limitation for such suits to be brought under the U. P. Tenancy Act and the period provided for such a suit under Section 180 or 183, U. P. Tenancy Act is two years in certain cases, and it has been argued that this period of limitation should be made applicable to all suits whether brought under the U. P. Tenancy Act or under the Code of Civil Procedure by tenants so long the suits are covered by the description given in the Fourth Schedule, Group B, appended to the U. P. Tenancy Act.

The argument on behalf of the respondents on this point is that this special period of limitation provided in the U. P. Tenancy Act is limited in its application to suits brought under the U. P. Tenancy Act and not to suits brought under any other provision of law. No authority bordering on the question in issue has been cited, but the learned counsel for the appellant has cited some rulings to show that the limitation provided in a special enactment shall override the enactment in the Indian Limitation Act. There can be no dispute that where a period of limitation provided by the Indian Limitation Act for a certain suit or suits has been varied or curtailed by any special enactment, the period of limitation provided by the special enactment shall prevail, and the period of limitation provided in the Indian Limitation Act would not be available. The main point for decision, therefore, is whether the special enactment relied on by the learned counsel for the appellant hag curtailed the period of limitation for certain kinds of suits to be brought under the Code of Civil Procedure. The argument for the learned counsel for the appellant is that we should look to the description of the suit given in the schedule and not to the section under which the suit has to be brought.

We are unable to agree with this contention. A plain reading of the Fourth Schedule, Group B column 4, shows that the period of limitation in this column is provided for suits which are to be brought under the provisions of the section mentioned in column 2. With the policy of the legislature underlying this special enactment, or with the wisdom of it, we are not concerned. All that we are concerned with is the intention of the legislature to be gathered from the phraseology & wording of the statute. It would, therefore, be difficult to agree with the contention that the period of limitation provided in column 4 against suits under Section 183 would apply also to suits brought under the provisions of Section 9 of the Code of Civil Procedure. We are, therefore, clearly of opinion that a suit such as the one which has given rise to this appeal and which was within the cognizance of the Civil Court, and was brought presumably under the provisions of Section 9 of the Code of Civil Procedure, is to 'be governed by the provisions of the Indian Limitation, Act The only articles which apply to such a case are Arts. 142 or 144 and in either case the suit would be within limitation, as it was instituted less than three years of the date on which the cause of action arose.

5. No other point has been pressed in arguments.

6. As a result the appeal is dismissed with costs.


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