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Misri Lal Vs. Gopi Charan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1928All538
AppellantMisri Lal
RespondentGopi Charan and ors.
Excerpt:
- - the court of first instance dismissed the suit on the ground that the plaintiffs had failed to establish that they were the tenants and not tulsha. the learned counsel for the appellant, however, has laid before us good many rulings and we do not think that the absence of the respondents' counsel has made any difference in the assistance which we have obtained in the case. tulsha was a female member of a joint hindu family holding a tenancy, she would have no interest in the property and her position would be no better than that of a man in the street. tulsha is no better than a man in the street, the deed of relinquishment executed by her cannot do any harm to the plaintiffs. having failed there, he brought a suit in the civil court to obtain a declaration that he was joint in.....mukerji, j.1. this is an appeal by one of the two defendants in the suit out of which this appeal has arisen. certain persons, who were all minors, came to court on the allegation that they were occupancy tenants of a certain holding of which defendant 2, the present appellant, is the zamindar, that the holding was recorded in the name of defendant 1, mt. tulsha, who was the widow of a joint hindu family governed by the mitakshara law and had no interest in the tenancy, and that the said defendant 1 executed a deed of relinquishment in favour of the zamindar. the date of relinquishment is 11th august 1921. the suit was instituted on 19th december 1922 for the following relief:it may be declared that the plaintiffs are the occupancy tenants of the holding given below and mt. tulsha,.....
Judgment:

Mukerji, J.

1. This is an appeal by one of the two defendants in the suit out of which this appeal has arisen. Certain persons, who were all minors, came to Court on the allegation that they were occupancy tenants of a certain holding of which defendant 2, the present appellant, is the zamindar, that the holding was recorded in the name of defendant 1, Mt. Tulsha, who was the widow of a joint Hindu family governed by the Mitakshara law and had no interest in the tenancy, and that the said defendant 1 executed a deed of relinquishment in favour of the zamindar. The date of relinquishment is 11th August 1921. The suit was instituted on 19th December 1922 for the following relief:

It may be declared that the plaintiffs are the occupancy tenants of the holding given below and Mt. Tulsha, defendant 1, has no concern with she said holding and that the relinquishment relied upon by defendant 2, which is fictitious, fraudulent and collusive, is ineffectual against the plaintiff.

2. Defendant 2 alone contested the suit and he pleaded, inter alia, that the suit was not cognizable by the civil Court. In the course of the proceedings in the Court below, the learned vakil for the plaintiff stated that he wanted to withdraw his claim regarding the declaration, that the plaintiffs were the occupancy tenants of the holding in question and he confined his suit to the relief as to the cancellation of the document of relinquishment.

3. The Courts below held that the suit was cognizable by them, but they differed on the question whether Mt. Tulsha was or was not the real tenant of the land. The Court of first instance dismissed the suit on the ground that the plaintiffs had failed to establish that they were the tenants and not Tulsha. The learned District Judge came to the conclusion that Tulsha's husband could not possibly have himself acquired the tenancy and as he predeceased his father while he was quite young, it must be taken that it was his father who acquired the tenancy. In this view of the facts, the learned Judge came to the conclusion that the plaintiffs were the occupancy tenants and he accordingly gave the declaration that the dead of relinquishment executed by Mt. Tulsha was null and void as against the plaintiffs.

4. In this appeal the only question that has been urged is that the suit was not cognizable by the civil Courts. We had not had the advantage of hearing the counsel for the respondents, for the latter are unrepresented in this Court. The learned Counsel for the appellant, however, has laid before us good many rulings and we do not think that the absence of the respondents' counsel has made any difference in the assistance which we have obtained in the case.

5. The learned Counsel for the appellant has argued that the relief to which the suit has been confined is a relief of no real consequence to the plaintiffs, that the sole object of the suit is to obtain a declaration that they are the occupancy tenants of the land and that the name of Mt. Tulsha was recorded nominally. If Mt. Tulsha was a female member of a joint Hindu family holding a tenancy, she would have no interest in the property and her position would be no better than that of a man in the street. Merely because a man without title, under whom the plaintiffs do not claim, purports to renounce her title the plaintiffs will not have a right to obtain a declaration that the transaction is not binding on them. The granting of a declaratory relief is entirely within the discretion of the Court and that discretion has to be exercised judicially. As I have already stated, if Mt. Tulsha is no better than a man in the street, the deed of relinquishment executed by her cannot do any harm to the plaintiffs. The execution of the deed of relinquishment by Mt. Tulsha is not the real reason of the suit. The real reason of the suit is that the appellant, the zamindar, is not willing to treat the plaintiffs as his tenants and the plaintiffs want a declaration that the recorded tenant was nobody and that they were the real tenants. This substantial relief which the plaintiffs had sought for in the beginning and which they withdrew later on, could be obtained by the plaintiffs only by the institution of a suit under Section 95, Agra Tenancy Act, and in no other way. Section 167 of the same Act debars a civil Court from exercising jurisdiction in a matter in which a suit of the nature provided in the Act may be brought.

6. This Court in numerous cases has explained the force of Section 167, by laying down that in order to find out whether the substantial relief asked for is or is not to be obtained by an application or suit in the revenue Court, we have to look to the object of the suit and should not confine our attention only to the reliefs asked for in the plaint. This is a view of the law with which I entirely agree. In Dori Lal v. Sardar Singh [1908] 5 A.L.J. 514, according to the head-note one D applied to revenue Court authorities that his adoptive father I was in joint cultivation with him and that his name should be recorded in respect of I's holding. Having failed there, he brought a suit in the civil Court to obtain a declaration that he was joint in cultivation with D and was the adopted son of I. It was held that although a suit for a declaration that the plaintiff was an adopted son of a particular person was maintainable in the civil Court, the nature of the suit was such as could be taken cognizance of and substantial relief could be granted by the revenue Court. The suit was accordingly held not maintainable in the civil Court. Again in Birham Khusal v. Sumera [1913] 35 All. 299 the son of a deceased occupancy tenant filed a suit against the zamindar in the civil Court for two reliefs. One was for a declaration that he was the son and lawful heir of the late tenant and for possession. It was held that although the first relief could be granted by the civil Court, so far as the second relief was concerned, the plaintiff's remedy was barred in the revenues Court by six months rule of limitation and it was, therefore, not proper for the civil Court to grant a declaration. At p. 301 the learned Judges state:

Such a suit (for possession), if it be now brought by the plaintiff, could not succeed. Therefore, to grant a declaration that he is the legitimate son of Jhau, would be of no use to him now. It could not be followed up by a suit for possession in the revenue Court. In these circumstances, in our opinion, the suit must fail.

7. Again in Ram Charitra v. Jinsi Ahirin [1914] 36 All. 48, the plaintiff filed a suit for a declaration in the civil Court that she was the legally married wife of one who was dead and who was the tenant of a certain holding. It was held that the suit was not maintainable in the civil Court. The reasons given are similar to those given in the earlier cases. Again in Jagannath Singh v. Balwant Singh A.I.R. 1922 All. 372 the declaration that was sought for in the civil Court was that one Govind was not the adopted son of Lalji. It was held that a suit under Section 95 (a) or 95 (b), Agra Tenancy Act, could be tiled in the revenue Court to obtain substantially the relief wanted and the suit was barred from the cognizance of the civil Court.

8. The law is now, so far as this Court is concerned, clearly established, that one must look to the substance and object of the suit and not merely superficially to the reliefs prayed for. If we apply this principle to the particular case before us, we find that the object of the plaintiff's suit is to obtain a declaration that the plaintiffs are the occupancy tenants. Whether a third party having no interests, according to the plaintiff's own allegation, in the property in suit, purported to relinquish the property or not, the plaintiffs cannot be affected. A declaration granted by the civil Court that Mt. Tulsha was nobody, will not be of any use to the plaintiffs in the revenue Court. They have to establish in the revenue Court that they are the occupancy tenants before they can compel the zamindar, the present appellant, to recognize them as their tenants. In the circumstances the grant of a relief as to the invalidity of the relinquishment would be in the nature of a brutum fulmen and would be a decree which no civil Court in the exercise of its discretion will ever grant. In my opinion the appeal ought to be allowed and the suit of the respondents should be dismissed with costs throughout.

Bennet, J.

9. Both the lower Courts have held that this suit is cognizable by the civil Court. The appellant argues that the suit should have been brought in the revenue Court under Section 95, Act, 2, 1901, as a suit for declaration of the name and description of the tenant of the holding and the class to which he belongs.

10. On the pleadings of the parties the issues naturally arise as to whether at the date of relinquishment the plaintiffs were occupancy tenants, or Mt. Tulsha, and whether Mt. Tulsha was entitled to make a deed of relinquishment in favour of the zamindar appellant.

11. The suit for the plaintiffs was at first for a declaration that the plaintiffs are occupancy tenants as well as a declaration that the deed of relinquishment was ineffectual against them. Before the written statement was filed the plaintiffs gave up the relief of a declaration that plaintiffs are occupancy tenants, and the suit became one for a declaration only in regard to the deed of relinquishment.

12. The question of the proper forum for a declaratory suit in regard to a deed of relinquishment has arisen in the following rulings, in which there was a suit in the revenue Courts for ejectment and at the same time a suit for declaration in regard to a deed of relinquishment in the civil Courts:

13. Suba Bibi v. Raghubar Singh [1910] 7 L.L.J. 291, Ramdhari Rai v. Ramdhari Rai [1910] 7 A.L.J. 305, Chote Lal v. Sheo Gopa Singh [1911] 33 All. 335., Jai Gopal v. Uman Dat [1911] 8 A.L.J. 695, Brij Kumar Rai v. Sheo Kumar [1915] 37 All. 444.

14. In these rulings it has been held that the civil Court could make a declaratory decree as regards the validity of the relinquishment. In Ram Dei v. Bindeshri [1911] 8 A.L.J. 940 Piggott, J., held the contrary, and his decision was upheld in Letters Patent Appeal No. 127 of 1912.

15. It may be argued that the above five rulings have been wrongly decided and are opposed to the principle underlying Ram Singh v. Girraj Singh [1915] 37 All. 41 because the defendant in the suit for ejectment might have pleaded that the relinquishment was invalid. But such a comment would not apply in the present case. For in the present case there was no suit for ejectment of anything else pending in the revenue Court against the plaintiffs, and therefore it was not open to plaintiffs to plead by way of a defence in the revenue Courts that the relinquishment was invalid. Their position in the revenue Court would have had to be that of plaintiffs. There is no section of Act 2 of 1901 which enables a plaintiff in the revenue Court to sue for a declaration that a relinquishment is invalid. That is not one of the matters for which a declaration may be granted under Section 95, Act 2 1901. At the most it can be said that such a matter could be brought indirectly under that section on a plea that a declaration was desired as to the name and description of the tenant and his class.

16. The question has also been raised as to whether, after the revenue Court has granted a decree of ejectment of a tenant, that tenant can maintain a civil suit for a declaration that a relinquishment was invalid, and it has been held that he could not maintain such a suit., Pahalwan Singh v. Satrupa [1905] 2 A.L.J. 471, Balwant Singh v. Girdhari Lal [1908] 5 A.L.J. 30. Shiva Prakash v. Kama [1908] 5 A.L.J. 30. These decisions are no authority for the proposition that the present suit does not lie in the civil Courts, as there is no prior revenue Court decree. The basis of these last three rulings was that the decree of the revenue Court was binding on the parties and that any decree made by the civil Court would be wholly nugatory. The ground for decision in Ram Dei v. Bindesri [1911] 8 A.L.J. 940, was similar.

17. In the Full Bench case of 1925, Fateh Singh v. Gopal Narain : AIR1925All637 , the question referred was:

What course is the civil Court to adopt when a suit is filed before it, the object of which is to affect the decisions of the revenue Court in a pending suit within the exclusive jurisdiction of that Court

18. The question was in a declaratory suit in the civil Court in regard to a surrender of his holding by an occupancy tenant who had made a mortgage of his occupancy holding, As stated by Lindsay, J., on p. 945, the difficulty arose because the revenue Court was bound to follow the decisions of the Board of Revenue to the effect that such a surrender operates to put an end to the relation of mortgagor and mortgagee, whereas the Civil Courts held the contrary. He states:

When all is said and none, the granting of relief by way of declaration is a matter within the discretion of the civil Court, and if it is made to appear that the declaration, when granted to the plaintiff, will be of no avail to him, that seems to me to be a very good reason for holding that in such a case the Court should exercise its descretion against the plaintiff and decline to grant any relief. This is not to say that a suit for declaration of the nature just mentioned is not entertainable by a civil Court. That I think would be going too far. But it is clear that any civil Court is entitled, in the exercise of its discretion, to refuse a declaration of this kind if it is to turn out to be purely nugatory.

19. Sulaiman, J. stated:

Where it is clear to the civil Court that the declaratory decree would be futile, the simple course would be to refuse to exercise its discretion for granting a declaratory relief. In fact. I myself acted on that very ground in the case of Ganga Chamar v. Bindesari Rai : AIR1925All615 . In that case I declined to say that the civil suit was barred by Section 167 of the Agra Tenancy Act.

20. This Full Bench decision therefore lays down the following propositions:

(1) That the civil Courts have jurisdiction to entertain such a declaratory suit in regard to the surrender of an occupancy holding.

(2) That the civil Courts should refuse to grant a declaration.

(a) where there is a suit pending in a revenue Court, and

(b) where in that suit the revenue Court would be bound to disregard the declaration of the civil Courts.

21. In the present case there is no suit pending in the revenue Courts. And as the surrender is not by an occupancy tenant who had mortgaged his holding, there is nothing which would bind the revenue Court to disregard the decision of the civil Courts. The conditions (a) and (b) do not exist and therefore there is no reason why the civil Courts should not exercise their discretion and grant the plaintiffs the declaratory decree.

22. It has been argued that such a declaration would be of no use to the plaintiffs. This does not appear to be correct. The plaint para. 7 alleges that the Collector has on summary enquiry under Section 40, Act 3 of 1901, ordered correction of khatauni for this holding (on the deed of relinquishment by Mt. Tulsha). Under Section 40 (3) no order under that section bars anyone from establishing his right by suit in the civil or revenue Court. If the declaration is granted to the plaintiffs that the deed of relinquishment was not by the occupancy tenant, then the plaintiffs will be able to apply for revision of that order under Section 40, and to have their names entered as occupancy tenants On p. 10, line 32, of the paper book it is stated that the revenue Court suggested to the plaintiffs that they should have their title adjudicated in the civil Court (judgment of the Court of first instance). If it be objected that entries are made under Section 40 on the basis of possession, then attention may be given to the finding of the lower appellate Court on p. 15, lines 13 to 18, which is apparently a finding that the plaintiffs are still in cultivating possession, as all that defendant was able to offer was oral evidence that two of the plots wore let to outsiders and no evidence in regard to who cultivated the remaining 13 plots; and the lower appellate Court apparently did not accept the evidence for the defendant on this matter.

23. It is to be noted that the proceedings under Section 40 were not a suit, as Sub-section (3) shows. The case would be different if there had been a revenue suit decided against the plaintiffs

24. The criticizm has been made that the ten rulings cited are all rulings in which a mortgagee of an occupancy tenant has challenged a relinquishment made by the occupancy tenant. It was suggested that though an occupancy tenant's mortgagee might come to the civil Court, a claimant to the occupancy tenancy might not come to the civil Court. But it has not been laid down in any of the ten rulings that a suit to declare a relinquishment invalid can only be brought in the civil Courts by a mortgagee. On the contrary it has been held that the mortgagee is under certain disadvantages in such a suit, owing to the view taken by the Board of Revenue of his rights. It appears that the rulings relate to mortgagees because it is usually in the case of an occupancy tenant who has parted with his possession to a mortgagee that the landholder is able to induce the tenant to surrender his occupancy rights. The present case, where the occupancy tenancy of the joint family was entered in the name of the widow of one of its former members must be a very unusual case. It appears to have arisen from Durga Pershad, who originally began to cultivate the holding, entering it in the name of his infant son Devi Din, probably under the impression that Devi Din would have less trouble when he would succeed on the death of Durga; but in a few years Devi Din died while still an infant and the revenue authorities erroneously entered the name of the infant widow of Devi Din.

25. It has been too easily assumed that the plaintiffs could have brought their suit in the revenue Court. The learned vakil for the appellant was given an interval to search for any ruling which would show that a suit similar to the present, based on the invalidity of a deed purporting to be a deed of surrender of occupancy rights, had ever been brought in a revenue Court under Section 95, Act 2, 1901 or any other section. He stated that he was unable to find any such ruling.

26. My learned brother has referred to the following rulings: Dori Lal v. Sardar Singh [1908] 5 A.L.J. 514, Birham Khusal v. Sumera[1913] 35 All. 299, Ram Charitra v. Jinsi Ahirin [1914] 36 All. 48, Jagannath Singh v. Balwant Singh A.I.R. 1922 All. 372 All of these were suits in which the declaration asked for was one under Section 42, Specific Relief Act, that the plaintiff had a certain legal character, such as that he was the adopted son of the late occupancy tenant, Dori Lal v. Sardar Singh [1908] 5 A.L.J. 514, or his legitimate son, Birham Khusal v. Surmera [1913] 35 All. 299 or legally married wife, (Ram Charitra v. Jinsi Ahirin [1914] 36 All. 48, or that another person was not the adopted son, Jagannath Singh v. Balwant Singh A.I.R. 1922 All. 372.

27. The proviso to Section 42 is:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

28. Under this proviso the plaintiff, if out of possession, is bound to ask for possession. To give possession of an occupancy holding is within the jurisdiction of the revenue and not the civil Court. And it was precisely on that ground that these suits failed. This is shown in one of these rulings, Birham Khushal v. Sumera [1913] 35 All. 299 at p. 301:

Even in the present suit it had to be admitted on behalf of the plaintiff that his suit for possession would not lie in the civil Court, and it is said that all he requires and asks for is a declaration that he is the legitimate son of Jhau. We are not prepared to say that if the plaintiff had come to the civil Court for a simple declaration that he was the legitimate son of Jhau, he would not have been entitled to the declaration, provided that he proved his case; but the suit is actually one for possession of an occupancy tenure and is brought against the landlord. For two years after the dismissal of his suit by the Commissioner he did nothing. A suit for possession by a tenant illegally dispossessed has to be brought within six months of the dispossession. Such a suit, if it be now brought by the plaintiff, could not succeed. Therefore to grant a declaration that he is the legitimate son of Jhau would be of no use to him now. It could not be followed up by a suit for possession in the revenue Court. In these circumstances, in our opinion, the suit must fail.

29. It is also to be noted that in this ruling the plaintiff before he sued in the civil Court, had sued under Section 95, Act 2, 1901 for a declaration that he was the occupancy tenant of the holding and the zamindar had pleaded that the plaintiff was not the legitimate son of the last holder. The suit was dismissed and the Commissioner upheld the order of dismissal saying:

A suit under Section 95, Tenancy Act, is not the way in which to decide a question of legitimacy. The zamindar denies the existence of the tenancy and this is fatal to the suit.

30. This judgment is against the argument of the appellant on both points, for he argued (and my learned brother has accepted the argument on p. 3 of his judgment), that Section 95, Tenancy Act, was the proper section under which to decide these questions such as legitimacy or the validity of a deed of relinquishment. The decision of the Commissioner on this point was approved of by this Court in Birham Khusal v. Sumera [1913] 35 All. 299 at p 301;

Section 95, Tenancy Act, is hardly the section under which to proceed.

31. As regards the second point: the appellant argued that it was sufficient for the plaintiffs to claim to be in possession to bring their suit under Section 95, even though the zamindar denied their possession. This also is contrary to the judgment of the Commissioner, and in the ruling on p. 301 it is said:

And the suit brought under that section was rightly dismissed, as the plaintiff was not in possession.

32. Now the present suit and the ten rulings to which I have referred are all suits under Section 39, Specific Relief Act, for a declaration that a written instrument is void. There is no proviso to that section that the plaintiff must sue for any other relief to which he might be entitled In this respect the section differs from Section 42, which has such a proviso. A plaintiff, therefore, who is out of possession cannot sue under Section 42 in the civil Courts, because for his possession he must go to the revenue Court. But there is no such bar to the suit of a plaintiff under Section 39. This appears to be a reason why the four rulings dealing with suits under Section 42 relied on by my learned brother are not rulings which will apply to the present suit under Section 39. Even in these four rulings the Courts have been careful to say that if a mere declaration is asked it would be granted. I have quoted to that effect from Birham Khusal v. Sumera [1913] 35 All. 299 at p. 301. The point is further illustrated from Ram Charitra v. Jinsi Ahirin [1914] 36 All. 48:

The case lies in our opinion very near the boundary, and, like the learned Judges who decided the case of Birham Khusal v. Sumera [1913] 35 All. 299, we feel it necessary to guard ourselves against laying down that a suit for declaration of legal status cannot be entertained by a civil Court merely because such a suit may be brought in consequence of a dispute which originally arose between landlord and tenant. We can conceive of a plaint, similar to the present, but differently drafted, in which a mere declaration as to the existence of a valid marriage might have been sought, and in respect of which it could scarcely have been held that the jurisdiction of the civil Court was ousted.

33. The points which differentiate the present case from other cases quoted by appellant are:

(1) The present plaint (as amended) does not ask for possession; it merely asks for a declaration.

(2) The plaint asks for a declaration under Section 39, Specific Relief Act, in regard to a document, and not a declaration about legal status under Section 42.

(3) There is no pending suit in the revenue Court, or decree.

(4) The finding of the lower appellate Court is that the plaintiffs are in cultivating possession.

34. To sum the matter up, it appears to me that everyone has a right to bring a declaratory suit in the civil Court in regard to a document under Section 39, Specific Relief Act. The granting of a declaration is a matter for the discretion of the civil Courts. As regards surrenders by occupancy tenants, the civil Courts will not grant declarations where there are suits pending in the revenue Courts, in which the revenue Courts would be bound to disregard the declarations, or where the revenue Court has granted a prior decree against the plaintiff. In the present case there is no revenue Court decree or pending suit.

35. No ruling has been shown prescribing any other limitation on the discretion of civil Courts in regard to such declarations about documents of surrender of occupancy holdings Therefore, the present suit is one in which the lower appellate Court has correctly granted a declaration.

36. As the Judges composing this Bench differ on a point of law, it is ordered that the following point be referred to a third Judge of the Court namely:

Whether in the circumstances of the present case, the plaintiffs are entitled to maintain their suit in the civil Court?

Sulaiman, Ag. C.J.

37. This is an appeal by the zamindar arising out of a suit brought by two plaintiffs claiming to be occupancy tenants of the defendants, and asking for a declaration that a certain deed of relinquishment executed by defendant 1, a widow, in favour of the zamindar is null and void and not binding on them.

38. The original plaint included an express relief for a declaration that the plaintiffs are the occupancy tenants of the holding, and also in the alternative one for possession. The latter was deleted and the former was withdrawn by the vakil subsequent to the filing of the plaint. The only relief that remained was that defendant 1, Mt. Tulsha had no concern with the holding, and that the relinquishment by her was fictitious, fraudulent and collusive, and was ineffectual against the plaintiffs.

39. Now the plaintiffs are not entitled to a declaration that a document executed by a third party is null and void, or that she had no right to execute it, without establishing that they themselves are the tenants of the land, and that a cloud is cast on their title on account of the deed. Thus even though the express reliefs for a declaration of right to the tenancy and for possession have now been deleted from the plaint, there can be no doubt that the sole object of the evidence of the deed of relinquishment is to establish the plaintiffs' right to the tenancy. The Court cannot grant the declaration sought for without deciding the question of the disputed tenancy as against the contesting zemindar.

40. A very largo number of cases are referred to in the judgments of my learned brethren, and a good many more have been cited at the Bar by Mr. Benod Behari Lal, who has very fairly put all the available leading cases before me, because the respondents are not represented. It is not necessary for me to refer to all these rulings, because in my opinion a very large number of them are not really relevant for the purposes of this appeal. This ruling can be classified into six groups.

41. The first and the largest group of cases is where suits were instituted in a civil Court by mortgagees of tenancies. According to the view which has prevailed in this Court a mortgagee of a tenancy is not a tenant of the landlord, and no relation of landlord and tenant exists between these two. In these circumstances it is obvious that the only forum to which an aggrieved mortgagee can have recourse is that of the civil Court. According to the view prevailing in this Court, such a mortgagee cannot at all maintain a suit in the revenue Court under the Tenancy Act. Rulings of this class are, therefore, not relevant.

42. The second group of cases is of those where previous to the institution of the suit, revenue Court decrees had been passed against the plaintiff and were operative. In such cases civil Courts have invariably declined to re-adjudicate upon the rights of the parties, as the effect would be to nullify the decree of the revenue Court, which was competent to decide the matter.

43. The third group of cases is of those where, although no final revenue Court decree had been obtained a suit in a revenue Court raising substantially the same point, was pending in the revenue Court, which had jurisdiction to try that question of dispute. In such cases the High Court very often declined to exercise its discretion to grant the declaration sought for on the ground that the decree would be futile as the revenue Court might not act upon it.

44. The fourth group of cases is of those in which the zamindar was not a party at all, but two rival claimants to a tenancy were litigating in a civil Court. Admittedly no relation of landlord and tenant exists between such parties, and such suits are obviously cognizable by a civil Court.

45. The fifth group of cases is of those where the plaintiff alleges that be is either the sole or the joint tenant of a tenancy, and does not admit that the defendant is his landlord. In such cases, even when the defendant pleaded that he was the zemindar, the civil Court has been held to have jurisdiction to try them. Such cases also are distinguishable.

46. The sixth group of cases is of those where suits are brought, not by mortgagees, but by tenants, when neither a previous revenue Court decree exists, nor is there any suit pending in a revenue Court, and the landlord is among the defendants, and the plaintiff admits that he is the landlord. In my opinion, it is rulings only in such cases that are relevant for the purposes of the present appeal.

47. Before referring to them I would examine the provisions of the Tenancy Act, itself. Section 167, Act 2, 1901 consists of two parts. The first part directs that

all suits and applications of the nature specified in Schedule 4 shall be heard and determined by the revenue Courts.

48. This apparently gives jurisdiction to the revenue Courts to try not only suits and applications mentioned in Schedule 4, but also such as are of the nature specified therein. The second portion of it says

that no Court other than a revenue Court shall take cognizance of any dispute or matter in respect of which any such suit or application might be brought or made.

49. This confers exclusive jurisdiction on the revenue Courts, and, therefore, all Courts other than revenue Courts must refrain from trying such questions. It is noteworthy that the expression used is not merely

suits and applications, but any dispute or matter in respect of which any suit or application might be brought or made.

50. The section has been obviously made very comprehensive in order to include all cases in which disputes arise in respect of a matter which can be disposed of by the revenue Courts. The object of the section to my mind clearly is that all suits, no matter in what way plaints are framed, should be instituted in a revenue Court provided the dispute is such as can be effectively disposed of by that Court. In this view there can be no doubt that the true test to apply in all such cases would be to ask the question

whether the dispute, which arises in the present case, is one in respect of which any suit or application could have been brought in the revenue Court.

51. In a case like the present where the main object of the plaintiffs is to establish their right to the tenancy as against the zamindar and it is only on the establishment of such a right that the declaration as to the non-binding character of the relinquishment by the pro forma defendants can be granted, it is clear that in a properly framed suit in a revenue Court the same substantial relief can be obtained from it. Under Section 95 at any time during the continuance of a tenancy a tenant may sue for a declaration as to the name and description of the tenant of the holding. On the plaintiffs own showing the tenancy continues and the relation of landlord and tenant exists between them and the zamindar, the only dispute being who is the tenant. To such a suit in a revenue Court the widow could very easily have been impleaded as a pro forma defendant. There is nothing in the Tenancy Act, which prevents such a pro forma defendant from being impleaded. Clause (a) obviously covers cases where on the death of a tenant there is a dispute among more persons than one as to who Should succeed him. The present plaintiffs could therefore, very easily, and indeed more appropriately, have sought their relief in a revenue Court without coming to the civil Court at all. I am therefore clearly of opinion that the jurisdiction of the civil Court to grant such a relief is barred by Section 167 of the Act.

52. The following cases support my view and I think that out of all the cases cited before me, they only are relevant.

53. In the case of Dori Lal v. Sardar Singh [1908] 5 A.L.J. 514 a tenant's suit for a declaration, that he was in joint cultivation with the adopted son of a deceased tenant by right of survivorship, against the zamindar was held not to be maintainable in a civil Court. It was clearly laid down there that a suit of that kind would fall under Section 95, Tenancy Act.

54. In the case of Birham Khushal v. Sumera [1913] 35 All. 299 a tenant's suit filed against the zamindar in the civil Court asking to have it declared that he was the son and lawful heir of the late tenant, and for possession of the occupancy holding, it was thrown out on the ground that he ought to have brought his suit within six months in the revenue Court. The substantial relief claimed in that suit, however, was one for possession pure and simple, and the case is, therefore, distinguishable. It is unnecessary to consider in the present case whether an heir to a deceased tenant can be deemed to be in constructive possession of the holding, so that his failure to obtain actual possession amounts to a dispossession or ejectment within the meaning of Section 79 of the Act.

55. The case of Badri Kasaudhan v. Sarju Miser [1914] 36 A11. 55 was also a suit for possession in a civil Court against the zamindar, and was dismissed on similar grounds.

56. In the case of Ram Charitra Rai v. Jinsi Ahirin [1914] 36 All. 48 a suit by a woman, alleging herself to have been legally married to a deceased tenant and being the rightful heir to the tenancy as his widow, brought in the civil Court against the zamindar, was held to be barred by Section 167 as the plaintiff's remedy was under Section 25, Tenancy Act.

57. Lastly in the case of Jagannath v. Balwant Singh A.I.R. 1922 All. 372 a suit by a zamindar for a declaration that an alleged adoption set up by certain persons who were claiming to be the heirs to the tenancy of a deceased tenant, was held not to be cognizable by the civil Court, as the proper remedy was a suit under Section 95, Tenancy Act.

58. It will be noticed that in the cases noted above the plaintiff admitted that the relation of landlord and tenant subsisted between the parties and that the tenancy was still continuing. The defendant landholder was a party and was denying the plaintiff's title to the tenancy. The last-mentioned case was a converse case. But in all the cases the substantial question in dispute was the right to the tenancy and arose as between the tenant and the landholder. A declaration of that right could have been obtained in a revenue Court. It was on this ground that it was held that the civil Court's jurisdiction was barred.

59. It is suggested in the judgment of Bennet, J., that the District Judge has found that it is probable that most of the plots were cultivated by or on behalf of other members as alleged by the plaintiffs-appellants. If it is a fact that the plaintiffs are in possession of these plots, they cannot be seriously prejudiced by the dismissal of the present suit on the mere ground of want of jurisdiction. Whenever any attempt is made by the zamindar to eject them, or a dispute is raised in the revenue Court as regards their right to the tenancy, it will be open to them to reopen the question of the validity of the surrender by the widow.

60. I, therefore, agree with Mukerji, J., and hold that the appeal ought to be allowed. Let this opinion be sent to the Bench hearing the appeal.


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