1. This is a plaintiff's appeal in a suit for possession of certain fixed rate tenancy plots and for recovery of Rs. 270/- as mesne profits.
2. The plaintiffs claimed to recover as the next reversioners of the last male-holder and filed the suit upon the allegations that the plots in question were alienated by Smt. Mabtula Kuar, who held the plots at the time of their transfer by her as a Hindu widow without any legal necessity or for the benefit of the estate. The deed by which the transfer was effected was dated 18-5-1917 and was in favour of one Saidan Kumar. The defendants are his successors-in-interest. The case of the plaintiffs was that the widow Mabtula Kuar, had died on 12-6-1937 and that the defendants thereafter had no right to remain in possession and that they had refused to deliver up the said plots; hence the suit for possession and mesne profits in the sum of Rs. 270/-.
3. Several defences were raised. The ones with which I am concerned in the present appeal relate to jurisdiction and mesne profits.
4. In the trial Court, i.e. Munsif's Court, it appears that the question of jurisdiction was not seriously pressed by the defendants. It appears that an issue on tenancy had been remitted to the learned Revenue Court under the provisions of the U. P. Tenancy Act. 1939 and a finding had been returned. The learned Munsif held that the suit being one by reversioners for cancellation of a sale-deed was within the jurisdiction of the Civil Court. It also held that the plaintiffs were entitled to mesne profits.
5. Upon these and other findings the suit was decreed for possession over the plots in question and for mesne profits in the sum of Rs. 270/-along with interest.
6. Upon appeal, a question was again raised as to whether the suit was within the jurisdiction of the Civil Court. The Court below hag come to the conclusion that the suit was cognizable by the learned Munsif. It has observed that, in determining the jurisdiction of the Civil Court what has to be seen is the pith and substance of the relief claimed and not its form and that the grounds upon which the relief is claimed are immaterial. It was of the view that the pith and substance of the relief sought was a cancellation of the transfer deed by the widow.
7. Before me it is contended that the suit fell under Section 183 (1) (b) of the U. P. Tenancy Act, and was cognizable by a Revenue Court alone. Section 183 of the U. P. Tenancy Act, so far as it is relevant runs as follows :--
'183 (1) Any tenant ejected from or prevent ed from obtaining possession of his holding or any part thereof, otherwise than in accordance with the provisions of the law for the time being in force by:
(a) his landholder or any person claiming as landholder to have a right to eject him, or
(b) any person admitted to or allowed to retain possession of the holdings by such landholder or person, whether as tenant or otherwise may sue the person so ejecting him or keeping him out of possession.
(i) for possession of the holding
(ii) for compensation for wrongful dispossession, or
(iii) for compensation for any improvement he may have made.'
8. It will be observed that this section provides for remedies in a case where a tenant is prevented from obtaining possession of his holding either by his landholder or by any person admitted to or allowed to retain possession of the holding by such landholder. The contention is that inasmuch as the defendants during the life time of the widow and thereafter were allowed to retain possession of the holding by the landholder, therefore, this suit fell within Section 183 (1) (b) of the Act.
9. In my view this submission is not correct. In my view the defendants were never allowed to 'retain possession,' by which I understand unlawful possession, by the landholder. The landholder could not eject the defendants during the life time of the widow while she held her estate. Fixed tenancies are transferable and the landholder is bound to accept a valid transfer. The validity of this transfer in favour of Saidan Kumar or his successors-in-interest so long as the widow was alive could not be questioned.
So, there is no question up to that point of the defendant's being allowed to 'retain possession.' There is nothing to show either that the landholder was allowing the defendants to 'retain possession' of the plots in question in opposition to the rights of the plaintiffs after the death of the widow. It may be that the landholder continued to receive rent, in respect of these fixed rate tenancy plots, from the defendants but that would not mean that the landholder was allowing the defendants to retain 'possession as against the rightful claimants. The plaintiffs were no doubt reversioners but their right to obtain possession would come into existence after the avoidance of the deed of transfer at their instance and not until then.
Unless it is a case where the right of the rightful claimants to obtain possession is negatived expressly by the landholder after such claimant had established his right, I do not think that the mere failure of the landholder to eject the person in possession would establish that he was permitting such person to retain possession as against the rightful owners. It could not, in myview, be said that the landholder was in the pre-sent case allowing another person to 'retain possession' illegally so as to invite the application of Section 180 (1) (b) of the Act. No doubt the landholder did not dispossess the defendants but, in my view the word 'retain' carries with it the connotation that the landholder wrongfully supports the right of the person, who is in wrongful possession and denies the right of the person who is rightfully entitled to possession and allows the person wrongfully in possession to continue in possession on the basis that he has an established right to continue in possession as against the claimant who has not.
10. In my view, therefore, Section 183 (1) (a) or (b) of the U. P. Tenancy Act, would not be attracted in this case at all. The defendants were not being allowed to 'retain possession' of the holding by the landholder, nor were they admitted to the holding by the landholder, nor was the landholder denying the right of the plaintiffs.
11. I do not further think that Section 180 of the U. P. Tenancy Act, 1939, is attracted so as to give jurisdiction to the Revenue Court. I may now quote the relevant part of Section 180, as it now stands after the amendments effected, in 1949. :
'180 (1). A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force, shall be liable to ejectment under this section on the suit of the person so entitled, and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants.....
Explanation II. A tenant entitled to sublet a plot of land in accordance with the provisions of the law for the time being in force may maintain a suit under this section against the person taking or retaining possession of such plot otherwise than in the circumstances for which provision is made in Section 183.
(2) If no suit is brought under this section or if a decree obtained under this section is not executed the person in possession shall become hereditary tenant of such plot, or if such person is a cosharer he shall become a khudkasht-holder on the expiry of the period of limitation prescribed for such suit or for the execution of such decree, as the case may be
Provided that where the person in possession cannot be admitted to such plot except as subtenant by the person entitled to admit, the provisions of this sub-section shall not apply until the interest of the person so entitled to admit is extinguished in such plot under Section 45 (f).'
12. Explanation II has been added in 1947, i.e. after the present suit was filed in 1943. But I will consider the position first in the light of the section as it stands at present.
13. The predecessor-in-interest of the defendants did not take or retain possession of these plots without the consent of the person entitled to admit them. At the time when he took possession the widow as a fixed rate tenant was entitled to put him in possession and the defendants the successors-in-interest of Saidan Kumar, the transferee would be entitled to remain in possession until the deed of transfer was avoided and until that deed was avoided, it could not be said that they were retaining possession of the land without the consent of the person entitled to admit them.
The reversioners, the plaintiffs, were bound by the deed of transfer until they avoided the same by a suit and there could be no absence of consent until the right to give or refuse consent came into existence and that could only be when the deed was avoided by a decree of a competent Court. In order that Section 180 of the U. P. Tenancy Act, may be attracted it must be shown that on the date of suit the retention of possession was without the consent of the person entitled to admit but, if it is necessary to have a deed avoided, then, in my view, until such avoidance it cannot be said that the person in possession is retaining possession without the consent of a person entitled to admit him.
14. In my view, therefore, where the setting aside of a deed by a decree would be necessary before the retention of possession would amount to an act of trespass, then it cannot be said that on the date of the suit there was a retention of possession without right and so Section 180 of the Act would not be attracted either. In the case of Mohanlal Khubchand v. Jagjivan Anandram, AIR 1938 Bom 298 (A) it has been clearly stated that :--
'a Hindu widow is not a tenant for life, but is the owner of the property inherited by her from her husband, subject to certain restrictions on alienation and subject to its devolving upon the next heir of her husband upon her death. The whole estate is for the time being vested in her and represents it completely. An alienation made by her without legal necessity is not void ab initio but voidable at the instance of the reversioner. The possession of an alienee from a Hindu widow is not wrongful at any time anterior to the reversioners exercising his right.'
15. Therefore, as indicated by me, there is no question here of the defendants being trespassers on the date of the suit and before the avoidance of the deed, for it could not be said until the deed was set aside whether the defendants had or had not a title to retain possession of the plots in suit. In my view therefore where the avoidance, of the transfer has to be effected in the suit itself, Section 180 of the U. P. Tenancy Act, is not attracted.
16. Moreover, before the 1947 amendment, Section 180 of the U. P. Tenancy Act, did not contemplate suit by a tenant. This suit was filed before that amendment and so, in my view, Section 180 of the U. P. Tenancy Act, was in any case not applicable.
17. Accordingly in my view the Civil Court had jurisdiction and the suit was properly filed in the Civil Court.
18. Upon my view the defendants would not become trespassers until the deed was avoided and so mesne profits which can be awarded under the Civil Procedure Code, only against trespassers cannot be awarded. Accordingly, I allow this appeal and set aside the decree of the court below so far as it relates to mesne profits and Interests thereon. The rest of the decree will stand. Costs of this appeal will be on the parties.
19. Leave to file a special appeal is askedand is refused.