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Hazari Tewari Vs. Mt. Maktula ChaubaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad
Decided On
Reported inAIR1932All30
AppellantHazari Tewari
RespondentMt. Maktula ChaubaIn and anr.
Excerpt:
- .....in satisfying the revenue court that he is entitled to the exclusion of the period taken up in the civil suit under section 14, limitation act. these however are matters with which we are not concerned at this stage. the learned subordinate judge has merely held that in view of the express provisions in the new tenancy act, which was applicable, the suit was not cognizable by the civil court at all we think that he was right in his conclusion.20. we had a somewhat similar case arising under section 121, tenancy act in brunni pandey v. brahmdeo pandey a.i.r. 1981 all. 735, in which we held that the new act governed a suit in which a relief which might have been claimed in the revenue court under section 121 had been asked for. in that case vie took the view that the civil court had no.....
Judgment:

Sulaiman, Ag. C.J.

1. This is a plaintiff's appeal arising out of a suit for possession by a thekadar against his landlord on the allegation that although a lease was granted in 1923 the lessee was never put in possession and has been continuously deprived of the profits. It was alleged in the plaint that the cause of action accrued on the date of the execution of the lease and also at the end of each year on the dates of the realization of the lease money. Various -defences were raised including a plea that the civil Court had no jurisdiction to entertain the suit. All the other points have been found against the contesting defendants, but the suit has been dismissed on the sole ground that it was not cognizable by the civil Court.

5. It is not disputed before us that if the new Tenancy Act were applicable the suit would be cognizable by the Revenue Court. Under Section 212 of that Act a thekadar who has been wrongly ejected from his theka area or wrongly prevented from exercising any of his rights as a thekadar by the landlord can sue for recovery of possession and compensation. Even assuming that inasmuch as the plaintiff never obtained possession of the leased property he cannot be said to have been wrongly ejected, there can be no doubt that he has been wrongly prevented from exercising his rights as thekadar and it would have been open to him to sue in the Revenue Court for recovery of possession and compensation under Section 212, Sub-section (1) of the Act. As the plaintiff could have attained adequate relief in the Revenue Court, he was bound to go to that Court f under Section 230 of the Act, for that section bars the jurisdiction of the civil Court in the matter of a suit in respect of which adequate relief can be obtained by means of a revenue suit, it being immaterial whether relief claimed in the civil Court is or is not identical with that which might be claimed in the Revenue Court.

6. It has been strongly contended on behalf of the appellant that the new Tenancy Act is not applicable, because the cause of action in favour of the plaintiff arose while the old Tenancy Act was still in force. Great reliance is placed on the case decided by a Bench of this Court in Abdul Hakim v. Muharram Ali : AIR1930All158 That was a case under Section 99, Tenancy Act, and the tenant had been dispossessed before the new Tenancy Act came into force. On an interpretation of Section 99, the learned Judges came to the conclusion that the plaintiff's cause of action having become complete before the new Act came into force, he could sue in the civil Court. Much stress was laid on the phraseology of Section 99, and it was pointed out that inasmuch as the dispossession had taken place while the old Act was in force, there was no dispossession otherwise than in accordance with the provisions of the new Act, as required by Section 99. It was further pointed out that the grove in dispute in that case was not a holding under the old Tenancy Act. Reliance was also placed on the improbability of the legislature having cut down the period of limitation for the institution of suits by grove-holders.

7. It is not necessary for us to express any opinion on the interpretation of Section 99 of the Act, because that case is easily distinguishable from the case before us. The word 'holding' does not occur in Section 212 at all, and therefore one reason relied upon by the learned Judges does not apply. It may also be noted I that the words 'otherwise than in accordance with the provisions of this Act' I on which stress was laid in the reported I case, do not find a place in Section 212. Even if it be said that the plaintiff was not ejected within the meaning of Section 212, we have already pointed out that he has been wrongly prevented from exercising his rights as a thekadar, and therefore it cannot be said that Section 212, is inapplicable.

8. It seems to us that a right of action is something different from the choice of the forum. There may be a vested right of action when the cause of action has accrued before the old Act has been altered; but there can be no vested right in the choice of a particular forum. If the legislature has thought fit to deprive the civil Court of its jurisdiction to entertain suits of a particular nature, a plaintiff cannot compel the civil Court to hear his suit merely because his cause of action had accrued before the new Act depriving the civil Court of its jurisdiction was passed. The choice of forum is a matter of procedure and not a substantive right, and in most cases a new Act would have a retrospective effect so far as the choice of forum is concerned. The analogy of a new Act not affecting a pending action does not apply.

9. Great point has been made of the fear that the period of limitation would be cut down if the new Act were made applicable. No doubt Section 220 makes the period of limitation prescribed for suits by tenants applicable to suits by thekadars, and in that way a period of is months may be applicable to a suit under Section 212 also. This is however not a point which arises directly in this case, but it may be pointed out that possibly it cannot be said that there is a vested right in a litigant to wait for a particular period of limitation before instituting his suit. It may also be possible for the plaintiff to contend that as he has been prevented from obtaining possession from year to year there has been a continuing cause of action in his favour giving him a recurring right. Again if there were really a vested right in the period of limitation it may' not follow that right has necessarily been taken away. It is also possible that he may succeed in satisfying the Revenue Court that he is entitled to the exclusion of the period taken up in the civil suit under Section 14, Limitation Act. These however are matters with which we are not concerned at this stage. The learned Subordinate Judge has merely held that in view of the express provisions in the new Tenancy Act, which was applicable, the suit was not cognizable by the civil Court at all We think that he was right in his conclusion.

20. We had a somewhat similar case arising under Section 121, Tenancy Act in Brunni Pandey v. Brahmdeo Pandey A.I.R. 1981 All. 735, in which we held that the new Act governed a suit in which a relief which might have been claimed in the Revenue Court under Section 121 had been asked for. In that case vie took the view that the civil Court had no jurisdiction to entertain the suit.

21. We accordingly dismiss the appeal with costs.


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