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Gangadhar and anr. Vs. Zahurriya and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All446
AppellantGangadhar and anr.
RespondentZahurriya and anr.
Excerpt:
landholder and tenant - suit for the removal of trees--act xv of 1877 (limitation act), schedule ii, no. 32--jurisdiction--civil and revenue courts--act xii of 1881 (n.-w.p. rent act), section 93(b). - - ' no doubt the learned judges in that case had very good reasons for coming to that conclusion, but i have not had the advantage of considering them, as the report gives no reasons upon this point......was a very simple suit brought by the plaintiffs-appellants, who are admittedly zamindars of the land in suit, against the defendants, who are occupancy-tenants of the land, seeking to restrain the defendants from converting arable land into a grove or wood. the courts below have concurred in holding that the suit is barred by limitation. they have applied article 32, schedule ii of act xv of 1877, and in my opinion the article has been rightly applied. they have held broadly that some of the trees were planted some seven years ago, and some were planted within a year from the date of the suit. these findings alone are not sufficient for the disposal of the case. the lower courts have not determined the terminus a quo of the period from which the limitation begins to run. under that.....
Judgment:

Tyreell, J.

1. This was a very simple suit brought by the plaintiffs-appellants, who are admittedly zamindars of the land in suit, against the defendants, who are occupancy-tenants of the land, seeking to restrain the defendants from converting arable land into a grove or wood. The Courts below have concurred in holding that the suit is barred by limitation. They have applied Article 32, Schedule ii of Act XV of 1877, and in my opinion the article has been rightly applied. They have held broadly that some of the trees were planted some seven years ago, and some were planted within a year from the date of the suit. These findings alone are not sufficient for the disposal of the case. The lower Courts have not determined the terminus a quo of the period from which the limitation begins to run. Under that clause the limitation begins to run from the date 'when the perversion first becomes known to the person injured thereby.' It is therefore necessary to have this point determined. And I would therefore remit the following issue for determination by the Court below:

When did the plaintiff first become aware of the perversion of the land?

The finding when made will be returned to this Court, and ten days will be allowed for objections from a date to be fixed by the Registrar.

2. I concur in the order proposed by my brother Tyrrell, but I wish to add a few words. The learned pleader for the respondent has contended that the suit was one cognizable by the Revenue Courts, and has relied upon the case of Deodat Tiwari v. Gopi Misr Weekly Notes 1882 p. 102. The judgment of the Court in that case was delivered by my brother Brodhurst, and I concurred in that judgment. Now, Section 93(b) of Act XII of 1881 provides that 'suits to eject a tenant for any act or omission detrimental to the land in his occupation, or inconsistent with the purpose for which the land was let' lie in the Revenue Court. It was under this section that my brother Brodhurst and myself held in that case that that suit was cognizable by the Revenue Court. I have carefully examined the remnants of the record that remain in this Court, namely, the judgments of the two Courts in that case, but in the absence of the plaint it is impossible to say how far that ruling applies to this ease.

3. Now, the plaint in this case is not for the ejectment of the tenant, but virtually seeks an injunction, directing the tenant to remove the trees in, question. This relief cannot be granted by the Revenue Courts, and the suit is therefore cognizable by the Civil Court. The learned pleader for the appellant has drawn my attention to two rulings of this Court in Raj bahadur v. Birmha Singh I.L.R. 5 All. 85 and Amrit Lal v. Balbir I.L.R. 6 All. 68. The first of these cases is a Full Bench ruling, and I agree with the learned pleader in thinking that the principle of the rulings in those cases applies to this case. I agree with my brother Tyrrell in holding that Article 32, Schedule ii of Act XV of 1877, applies to this case, and that the limitation runs from the date 'when the perversion first becomes known to the party injured thereby.'

4. The learned pleader for the appellant has also called my attention to a ruling of the Calcutta High Court in the case of Kedarnath Nag v. Khetturpaul Sritirutno I.L.R. 6 Cal. 34. I have carefully considered the judgment in that case. The portion which deals with the point now raised occurs at the end and is as follows: 'As to the limitation, we think with the Lower Appellate Court that Article 32 does not apply to this case. It seems to us to fall under Article 120, which gives a period of six years.' No doubt the learned Judges in that case had very good reasons for coming to that conclusion, but I have not had the advantage of considering them, as the report gives no reasons upon this point. Under the circumstances I agree with my brother Tyrrell in remanding the case as proposed by him.


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