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Shah Chhaturbhuj Vs. Mangal Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.1005
AppellantShah Chhaturbhuj
RespondentMangal Singh and ors.
Excerpt:
agra tenancy act (ii of 1901), section 196 - resumption--jurisdiction--civil or revenue court--objection as to jurisdiction not taken in first court--pleadings. - .....as muafidars in respect of the 51 bighas. section 154 of the tenancy act provides that the land held rent-free shall be liable to resumption only when by the terms of the grant or by local custom it is held (a) at the pleasure of the grantor; or (6) for the performance of some specific service, religious or secular, which the proprietor no longer requires, or (c) conditionally for a term, and the condition, is broken or the term expires. section 158 provides that land not liable to resumption under section 154 and which has been held rent-free for fifty years and by two successors, to the original grantee, and land which was acquired in perpetuity in consideration of the, loss or surrender of a right previously vested in the grantee, or by a written instrument, and for a valuable.....
Judgment:

Richards, J.

1. The facts out of which this and the connected Appeal No. 595 of 1910 arise are as follows, One Shah Chaturbhuj instituted a suit in the Revenue Court against Mangal Singh and others under Section 154 of the Tenancy Act to resume land alleged to be held rent-free at the pleasure of the grantor. The defendants pleaded that they were the proprietors of the land sought to be resumed. The Revenue Court purporting to exercise the powers conferred by Section 199 of the Tenancy Act made an order requiring the defendants to institute a suit within three months in a Civil Court for the determination of the question of title. It is now contended that the Court ought not to have made this order. However, whether the order was right or wrong, it was in fact made apparently without objection by either side. A suit was then instituted in the Civil Court by Mangal Singh and others in which they claimed a declaration that the plaintiffs Nos. 1 and 2 were proprietors of the land in dispute and that the defendants Nos 3 and 5 were sub-mortgagees. No objection was taken either in the Munsif's Court or in the lower Appellate Court to the jurisdiction of the Court to try the suit. Both Courts decided in favour of the plaintiffs. Both Courts went into the general merits of the case and there appears to be very little dispute about facts. It appears that one Mouzi Singh had three sons, Khushal, Singh Sumer Singh and Gulab Singh. There was no question whatever about the legitimacy of Khushal Singh and Sumer Singh, but evidently a question did arise as to whether or not Gulab Singh was legitimate. On the 1st of April 1849 the brothers entered into an agreement in which Khushal Singh and Sumer Singh gave 51 bighas of land to Gulab Singh and Gulab Singh gave over all claim against his father's property. He is called in the document 'son of a slave girl'. It is pretty clear that whether or not Gulab was really legitimate, he had been claiming that the connection between his father and his mother was lawful under some form of Hindu marriage. From the date of that agreement down to the time of the institution of the suit, which I first referred to, in the Revenue Court, Gulab and his transferees were recorded as muafidars in respect of the 51 bighas. Section 154 of the Tenancy Act provides that the land held rent-free shall be liable to resumption only when by the terms of the grant or by local custom it is held (a) at the pleasure of the grantor; or (6) for the performance of some specific service, religious or secular, which the proprietor no longer requires, or (c) conditionally for a term, and the condition, is broken or the term expires. Section 158 provides that land not liable to resumption under Section 154 and which has been held rent-free for fifty years and by two successors, to the original grantee, and land which was acquired in perpetuity in consideration of the, loss or surrender of a right previously vested in the grantee, or by a written instrument, and for a valuable consideration, shall be deemed to be held in proprietary right. Both Courts have held and I think have rightly held that the land was not resumable under Section 154. The land has been held for more than fifty years and by Gulab, his sons and the transferees from them, but the Courts have not found that it was held by two successors to Gulab. If it was necessary to decide whether or not the land was held by two successors' to Gulab within the meaning of Section 158 some difficulty might arise. The next question is,--Was the land acquired in perpetuity in consideration of the loss or surrender of a right previously vested in the grantee or by a written instrument or for a valuable consideration. The appellant contends that all that Gulab acquired under the document of 1849 was the benefit of the land in lieu of maintenance for his life. It is quite true that the word for maintenance' does appear, but taking the document as a whole I think it is fairly open to the construction that the brothers intended to confer on Gulab a grant in perpetuity. I also think that the agreement was for valuable consideration. Gulab was releasing and relinquishing all claims which he would have against the estate if he succeeded in showing that his mother was the lawful wife of his father. It will, therefore, appear to me that assuming that the Civil Court had jurisdiction to try this question or that the lower Appellate Court had jurisdiction to try it on appeal, the merits are with the plaintiffs. The appellant contends that the Revenue Court had no right under Section 199 to order the defendants in that suit to institute the present suit in the Civil Court. This contention is based, on the following argument. It is said that the provisions of Section 199 only apply to a case of landlord against tenant. The expression tenant' is defined by Section 4 of the Tenancy Act as not including a rent-free grantee. It seems to me that technically speaking the argument of appellants is sound. It is evidently one of the many oversights in the Act. One can hardly see any reason why a tenant claiming proprietary title should be sent to the Civil Court, while a muafidar claiming proprietary title should not be sent. I have already, however, pointed out that no objection was taken to the order of the Revenue Court directing the defendants in the suit before it to institute the present suit in the Civil Court. The order is left undisturbed either by an appeal, or if no appeal lay, by an application in revision. The suit was instituted and the matter was tried between the parties on the merits and it is now contended that the whole matter should be set aside on the ground of want of jurisdiction and that the parties should de novo commence litigation. This would be a very unfortunate state of affairs if the law require it. It is true, no doubt, that Section 167 provides that certain suits, which include a suit to resume possession, shall only be brought in the Revenue Court. Section 196, however, also provides that when a suit instituted in a Civil or Revenue Court an appeal lies to the District Judge or the High Court, an objection that the suit was instituted in the wrong Court should not be entertained in the Appellate Court unless such objection was taken in the Court of first instance, but the Appellate Court shall dispose of the appeal as if the suit had been instituted in the right Court. The present suit was not in form a suit to resume possession, but the issues that were tried were, no doubt, the very issues that would have been tried if the original suit in the Revenue Court had been proceeded with. No objection was taken in Court of first instance to the trial of these issues. I do not think the provisions of Section 167 apply to the present suit but even if they did, the matter cannot now be objected to having regard to the provisions of Section 196. The matter having been decided on the merits in the civil suit, the appeal in the revenue suit came on for hearing and the judgment was as follows: 'The appellant's Pleader states that as the Additional Subordinate Judge has dismissed the connected appeal, he has nothing to say on behalf of the appellants in this case. The appeal is consequently dismissed with costs'. It seems to me that the lower Courts in the present case were entitled to hold that the plaintiffs, in the events that had happened, were entitled to the declaration which they sought. The order in the revenue suit may be treated as a nullity. It is lastly contended that the land ought to have been assessed to rent under Section 156. This is a matter which more properly arises in the Appeal No. 595.' But it seems to me that under the circumstances all that the defendants in the present suit were entitled to was to have the land assessed for Government revenue. This has already been done as appears from the, decree of the Assistant Collector. I do not think that the lands were liable to be assessed to rent. I, accordingly, dismiss the appeal with costs including fees on the higher scale.


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