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Gaya Misra Vs. Rammanog Misir and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1937All794
AppellantGaya Misra
RespondentRammanog Misir and ors.
Excerpt:
- - this clearly shows that the suits which are excluded from the jurisdiction of courts other than revenue courts acting under section 37 are those in which rent paying tenancy lands are sought to be partitioned......brought in the civil court. the only question argued in this court is whether a certain rent-free tenure, which is included in the property sought to be partitioned, can be divided otherwise than under section 37, agra tenancy act. it is argued that the only court which has jurisdiction to divide it is the revenue court. section 37 is not very happily worded. it provides that:a division of a holding or distribution of the rent payable in respect of a holding or any portion thereof, or such division and distribution, shall be efiected only by agreement between the cotenants or by the decree in a suit instituted under this section by one or more of the co-tenants against the others, provided that such division or distribution shall not be binding on the landholder unless he agrees.....
Judgment:

Niamatullah, J.

1. This appeal arises oat of a suit for partition brought in the Civil Court. The only question argued in this Court is whether a certain rent-free tenure, which is included in the property sought to be partitioned, can be divided otherwise than under Section 37, Agra Tenancy Act. It is argued that the only Court which has jurisdiction to divide it is the Revenue Court. Section 37 is not very happily worded. It provides that:

A division of a holding or distribution of the rent payable in respect of a holding or any portion thereof, or such division and distribution, shall be efiected only by agreement between the cotenants or by the decree in a suit instituted under this section by one or more of the co-tenants against the others, provided that such division or distribution shall not be binding on the landholder unless he agrees thereto in writing.

2. Section 230, Agra Tenancy Act, provides that no Court other than Revenue Courts shall have jurisdiction to entertain suits of the nature described inter alia in Schedule 4, Group B, No. 1, annexed to the Tenancy Act. This serial number refers to suits under Section 37, Tenancy Act. Learned Counsel for the appellant who was one of the defendants in the lower Court points out that 'holding' is defined in Section 3(8) as meaning:

A parcel or parcels of land held under one tenure, or one lease, engagement or grant, and includes the interest of a thekadar.

3. It is common ground in the present case that the land in dispute is held by the family as a rent-free tenure under a grant made to one from whom all of them claim. It is argued that, as the lands in dispute are held under a grant, they constitute a 'holding', as defined in Section 3(8), and that this being so, Section 37 applies to it and it can be divided only by a Revenue Court. It is said that Section 37 is not confined to divisions of tenancies alone but extends to all lands held under one tenure, lease, engagement or grant. Carried to its logical extreme, the argument will lead to the conclusion that, even a proprietary or sub-proprietary tenure held under one engagement from anyone, including the Government, is a 'holding', and only the Revenue Court is competent to divide it in a suit under Section 37, Tenancy Act. Section 37 itself affords an indication that it is confined to land held by tenants. The word W tenants' occurs twice in the section and supplies the key to the solution of the difficulty raised by the ambiguous language in which the earlier part of it is couched. Another ground on which the section should be considered to toe limited to tenants' holdings is to be found in Schedule 4, Group B, Serial No. 1. The last column is headed 'proper court-fee'. The entry against Section 37 in that column is 'on rent payable in respect of the part to be separated as in the Court-lees Act, 1870'. No court-fee is prescribed for rent-free holdings. This clearly shows that the suits which are excluded from the jurisdiction of Courts other than Revenue Courts acting under Section 37 are those in which rent paying tenancy lands are sought to be partitioned. The whole object of Section 37 is to confer exclusive jurisdiction on Revenue Courts where rent payable by a tenant is to be split. In case of rent-free tenures there is no reason to exclude the jurisdiction of the Civil Court, which is competent to divide specific plots constituting a proprietary tenure.

4. Learned counsel for the appellant argues that a rent-free tenure may become a tenancy holding, if rent is assessed at the instance of the landholder. He contends, therefore, that every rent-free tenure may be considered to be potential tenancy holding. On that assumption he contends the reason for which exclusive jurisdiction has been conferred upon the Revenue Court exists as regards rent-free tenure also. I do not think this line of argument is sound. If a rent-free tenure is partitioned by a Civil Court, and subsequently rent is assessed at the instance of the landlord, it is the Revenue Court that will assess such rent. In my opinion, the rent-free tenure in question in this case can be divided by the Civil Court, by which the other family property is to be partitioned. The Board of Revenue have taken the same view in Bindesri v. Ram Sukh (1931) 12 L.R.A. Rev. 343. For these reasons I dismiss this appeal with costs. Leave to appeal under the Letters Patent is refused.


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