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B. Bindraban Katiar Vs. Ganga Ram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1940All445
AppellantB. Bindraban Katiar
RespondentGanga Ram
Excerpt:
.....his plea that the plot is in actual possession in his capacity as a proprietor is clearly not a question of proprietary title within the meaning of expln. 2. we are clearly of opinion that the view taken by the learned district judge is correct. a suit under any of the provisions of the agra tenancy act 1926, or the oudh rent act 1886, which is pending at the commencement of this act or a decree under any of the provisions of either of these acts, which has not been satisfied in full at such commencement, shall be decided or executed, as the case may be, in accordance with the corresponding provision of this act and, if there is no such corresponding provision, the proceedings relating to such suit or decree shall be quashed. it is quite clear that the civil procedure code has..........profits. although there was no controversy as regards the defendant's proprietary interest in the plot in suit as a cosharer of the patti, the trial court remitted an issue under section 271, tenancy act, to the civil court as to whether the defendant was the tenant or the proprietor of the holding in suit. the learned munsif found that he was a proprietor and not a tenant of this plot, and thereafter the assistant collector proceeded to dismiss the suit. there was an appeal to the collector by the plaintiff, and the defendant filed a cross-objection in which he challenged the collector's jurisdiction on the ground that there was a question of proprietary title between the parties. the collector repelled the plea of want of jurisdiction and found that the defendant was a tenant of the.....
Judgment:

Collister, J.

1. This is a defendant's appeal under Section 246, Agra Tenancy Act, (Act 3 of 1926). The suit was for arrears of rent for the years 1338 to 1341 Fasli in respect to plot No. 599 in patti No. 8 of a certain village. It appears that there was a private division of plots in this patti under a registered instrument between the cosharers, as a result of which the plot in dispute fell to a cosharer named Parmeshwari Dayal. In 1915 a lady named Mt. Savitri purchased the proprietary rights of Parmeshwari Dayal, and in the following year she executed a deed of wakf in favour of the Pathshala Trust Committee. On 10th August 1921, which was the Fasli year 1329, the Pathshala Trust Committee executed a deed of lease in favour of the defendant for a hundred years at a rental of Rs. 50 per annum. At that time a cosharer named Radha Kishen was in cultivatory possession of this plot as a tenant, and it was stipulated in the deed of lease that the lease should come into effect when Radha Kishen was ejected. In 1331 Fasli the defendant's name was entered against this plot for the first time; but in 1334 Fasli a person named Ram Dayal was recorded as tenant, and this entry continued until 1339 Fasli, in which year the defendant was shown as being in adverse possession of the holding. And this entry has continued ever since. Meanwhile, on 24th January 1930 which was the Fasli year 1337, the Pathshala Trust Committee had executed a theka of its proprietary rights in favour of the plaintiff-respondent, and the latter instituted the suit out of which this appeal has arisen against the defendant-appellant for arrears of rent, treating him as a tenant under the deed of lease dated 10th August 1921.

2. The defence was that this deed of lease was never effectuated for the reason that Radha Kishen remained in possession and was not ejected, and it was pleaded that the defendant came into possession of the holding for the first time in 1340 Fasli and that he did so in the capacity of a proprietor and not in the capacity of a tenant. It was contended that the defendant was holding the plot in dispute as his khudkasht and that the plaintiff's only remedy against him was to institute a suit for profits. Although there was no controversy as regards the defendant's proprietary interest in the plot in suit as a cosharer of the patti, the trial Court remitted an issue under Section 271, Tenancy Act, to the Civil Court as to whether the defendant was the tenant or the proprietor of the holding in suit. The learned Munsif found that he was a proprietor and not a tenant of this plot, and thereafter the Assistant Collector proceeded to dismiss the suit. There was an appeal to the Collector by the plaintiff, and the defendant filed a cross-objection in which he challenged the Collector's jurisdiction on the ground that there was a question of proprietary title between the parties. The Collector repelled the plea of want of jurisdiction and found that the defendant was a tenant of the plaintiff. He accordingly allowed the appeal and decreed the suit. From that decision there was an appeal to the District Judge under Section 243 of the Act, but the learned Judge held that no appeal lay to his Court for the reason that no question of proprietary right was in issue between the parties in the trial Court and in the first Appellate Court. The learned Judge accordingly directed that the memorandum of appeal be returned to the defendant-appellant 'for presentation to the proper Court.'

3. Learned counsel for the defendant-appellant pleads that a question of proprietary right was in fact in issue between the parties and that the view taken by the learned Judge of the lower Appellate Court is erroneous. Section 271, Clause (1) of Act 3 of 1926 provides that 'if...in any suit or application filed in a Revenue Court against a person alleged to be the plaintiff's tenant or under Section 44 the defendant pleads that he is not a tenant but has a proprietary right in the land,' the Revenue Court shall frame an issue on the question of proprietary title-unless such question has already been decided by a Court of competent jurisdiction-and shall submit the record to the competent Civil Court for the decision of that issue. Expln. II to this Section provides as follows:

A question of proprietary right does not include the question whether land in the actual possession of a proprietor thereof is held by such proprietor as his sir or khudkasht or as a tenant or sub-tenant.

4. Learned counsel for the defendant-appellant contends that this explanation is only applicable in a suit for profits, but I am unable to accept this contention. In Net Ram v. Har Govind : AIR1928All764 certain persons instituted a suit for ejectment, alleging the defendant to be a sub-tenant of the holding. The defendant pleaded that he was not the plaintiff's sub-tenant at all, but that he held the land as a zamindar and was cultivating it as his khudkasht. This plea was repelled by the trial Court and the suit for ejectment was decreed. The defendant preferred an appeal to the Commissioner, who returned the memorandum of appeal for presentation to the District Judge, holding that the plea raised by the defendant involved a question of proprietary title and that the appeal therefore lay to the District Judge. The District Judge disagreed with the view of the Commissioner and referred the matter to this Court. At p. 290 the learned Judges of this Court say:

Section 271, Expln. 2 provides: 'A question of proprietary right does not include the question whether the land in the actual possession of the proprietor thereof is held by such proprietor as his sir and khudkasht or as tenant or sub-tenant.' Assuming for the sake of argument that the defendant is a cosharer in the mahal in which the plot No. 1439 is situate and that the land is actually under the cultivation of the defendant, his plea that the plot is in actual possession in his capacity as a proprietor is clearly not a question of proprietary title within the meaning of Expln. 2. We are clearly of opinion that the view taken by the learned District Judge is correct.

5. This authority disposes of the defendant's plea that a question of proprietary right was in issue between the parties. The defendant was admittedly a cosharer of the patti and as such had a proprietary interest in the plot in suit; and the only question in issue between the parties was as regards the nature of his possession, that is to say, whether he was in possession as a tenant of the plaintiff or whether he was holding the plot as his khudkasht. In view of Expln. 2 to Section 271 of the Act, this issue did not raise a question of proprietary right and therefore no issue ought to have been referred to the Civil Court and no appeal lay from the Collector's decision to the District Judge under Section 243 of the Act. Learned counsel for the defendant-appellant has however raised a second plea, which is based on the Explanation to Section 286, U.P. Tenancy Act, (17 of 1939) and on Section 296 of that Act. Expln. 2 to Section 286, which is the Section corresponding with Section 271 of the previous Act, says: 'A question of proprietary right does not include the question whether land is sir or khudkasht.' It will be observed that the language of this Explanation is briefer than and different from the language of the Explanation to Section 271 of Act 3 of 1926. Section 296 of Act 17 of 1939 enacts as follows:

A suit under any of the provisions of the Agra Tenancy Act 1926, or the Oudh Rent Act 1886, which is pending at the commencement of this Act or a decree under any of the provisions of either of these Acts, which has not been satisfied in full at such commencement, shall be decided or executed, as the case may be, in accordance with the corresponding provision of this Act and, if there is no such corresponding provision, the proceedings relating to such suit or decree shall be quashed.

6. Learned counsel for the defendant-appellant pleads that the word 'suit' in this Section must be deemed to include any stage of the litigation, even though it may be a proceeding which amounts to a third appeal, as in the case which is now before me. In this connexion he has referred me to certain observations by this Court and by the Madras High Court. In Abdul Basit v. Ashfaq Husain (1908) AWN 211 at p. 213 a learned Judge of this Court observed as follows:

An appeal means a removal of a cause or suit from an inferior to a superior tribunal in order that the latter may revise and, if it seems needful, reverse or amend the decision of the former. An appeal, it must be borne in mind, is a continuation of a litigation commenced by a suit.

7. In Atchayya v. Venkata Seetharamachandra Rao (1915) 2 AIR Mad 1223, Sundara Ayyar J. at p. 208 said:

It is quite clear that the Civil Procedure Code has accepted and carried out the well-established principle that an appeal is the continuation of the proceedings in the original Court, that those proceedings are removed to the Court of Appeal and that the proceedings in the Appellate Court are in the nature of a re-hearing. In the case of second appeals no doubt the High Court does not possess plenary powers of dealing with the case and it cannot be said in such cases that the causa is re-heard in full, but this does not affect the general principles regulating the functions of an Appellate Court or the powers and duties of a Court of first appeal.

8. I agree that an appeal is a continuation of the original litigation, but it does not in the least follow from this that, where the Legislature mentions a suit in any particular Act, it intended to include appeals as well. Learned counsel refers to Section 52, T.P. Act, in which the pendency of a suit or proceeding includes the pendency of any stage of the litigation until finality is reached, and on the analogy of this Section in the Transfer of Property Act he pleads that the word 'suit' in Act 17 of 1939 must be read as including an appeal also. It is always necessary to exercise caution in applying the analogy of a provision in any particular Act to another Act of an entirely different character; and, moreover, the expression 'suit or proceeding' in the Transfer of Property Act is obviously wider than the word 'suit' in Act 17 of 1939. When the Legislature employs any particular word, that word must be read in its literal and technical sense unless the contrary intention appears or can reasonably be inferred. No attempt has been made to show me that any such contrary intention appears in Act 17 of 1939, and I do not find any indication of such intention. I think that, when the Legislature used the word 'suit,' it meant suit and nothing else. Suits and appeals are separately dealt with in the Act and I have little doubt that, if the Legislature had intended that Section 296 should apply to appeals, it would have said so in specific terms. And the reason why it did not make Section 296 applicable to proceedings which have reached the stage of an appeal is, I think, obvious. In my opinion there is no force in this plea. If the defendant had any right of appeal at all, it lay under Act 3 of 1926, but for reasons which I have already given I agree with the view of the lower Appellate Court that no appeal lay to that Court from the appellate decree of the Collector. For the reasons given above, this appeal fails and is dismissed with costs. Permission to appeal under the Letters Patent is refused.


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