Skip to content


Parbhu NaraIn Singh, Kashi Nareshi Vs. Harbans Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Judge
Reported inAIR1916All266; 35Ind.Cas.279
AppellantParbhu NaraIn Singh, Kashi Nareshi
RespondentHarbans Lal
Excerpt:
.....(ii of 1901), sections 4, 167, 180 - suit for rent--denial of tenancy--appeal, second, to district judge--revision--application to high court, maintainability of--jurisdiction--civil procedure code (act v of 1908), section 115. - - the decision turns on a remark in the judgment of the district judge to the effect that there is no reliable evidence to prove that this land was originally let for agricultural purposes. what the district judge, no doubt, meant to say was that there seemed to him no reliable or satisfactory evidence with regard to what passed between the parties to the suit, or their predecessors-in-title, at the time when this land was originally leased by one party to the other. to my mind those are two distinct, independent questions and unless they are so treated, it..........this was a suit for arrears of rent. the defendant was described as a tenant at fixed rates of the land in suit and was sued for rent of the same under section 102 of the agra tenancy act (local act ii of 1901), the suit being of the description referred to in serial no. 2, group (a), of the fourth schedule to the said act. the amount claimed being a small one, the suit was instituted in the court of an assistant collector of the second class. the defendant pleaded that the relationship between the parties was not that of landlord and tenant within the meaning of the tenancy act, that he did not owe the plaintiff rent for the land in question, and he also put the plaintiff to proof of the amount of the rent claimed. the assistant collector found in favour of the plaintiff on all the.....
Judgment:

Piggott, J.

1. This was a suit for arrears of rent. The defendant was described as a tenant at fixed rates of the land in suit and was sued for rent of the same under Section 102 of the Agra Tenancy Act (Local Act II of 1901), the suit being of the description referred to in Serial No. 2, Group (A), of the Fourth Schedule to the said Act. The amount claimed being a small one, the suit was instituted in the Court of an Assistant Collector of the Second Class. The defendant pleaded that the relationship between the parties was not that of landlord and tenant within the meaning of the Tenancy Act, that he did not owe the plaintiff rent for the land in question, and he also put the plaintiff to proof of the amount of the rent claimed. The Assistant Collector found in favour of the plaintiff on all the issues raised and decreed the claim. There was an appeal to the Court of the Collector, and there the Collector came to the conclusion that the land referred to in the plaint was not land which is let or held for agricultural purposes, within the meaning of the definition contained in Section 4, Clause (ii), of the Tenancy Act. From this he concluded that any money which might, or might not be due from the defendant to the plaintiff on account of the rise or occupation of this land could not fall within the definition of 'rent' contained in the next succeeding clause of the same section. He held, therefore, that the suit as brought was not maintainable, and he dismissed it. A second appeal lay under the law to the Court of the District Judge, and the plaintiff appealed to that Court accordingly. The District Judge took substantially the same view of the questions involved as the Collector had done, and dismissed the appeal. The plaintiff has brought the matter to this Court in revision, and a number of questions of considerable interest and importance have been fully argued before us. In so far as it is apparently desired by the plaintiff to make of the present a sort of test case for the determination of the various points of law which have been argued before us, I can only say that it is unfortunate that what it is desired to make a test case should be laid before this Court in the exercise of its revisions] jurisdiction. The result is that the questions of law upon which our decision is invited are necessarily complicated and overshadowed by the further question, whether the application is really one which can fairly be brought within the narrow compass of the provisions of Section 115 of the Code of Civil Procedure.

2. A point not expressly taken in the application to this Court, but about which something was said in the course of argument, must, I think, be at once cleared out of the way. It was said that the decision of the learned District Judge amounts to a decision that the plaintiff has no cause of action maintainable against the defendant, either in a Revenue or in a Civil Court. It would seem that, before the District Judge disposed of the appeal, it was suggested to him that in the event of his agreeing with the Collector on the point of law raised, the proper course for him to adopt would be, not to affirm the order dismissing the suit, but to substitute for it an order returning the plaint to be presented to the Court in which the suit should have been instituted, reference being made to the provisions of Order VII, Rule 10, of the Code of Civil Procedure. I do not wish to express myself too strongly on this point, lest my words should be quoted as authority for any general proposition as to the impossibility of returning for presentation to a Civil Court a plaint filed in the Revenue Court; but I certainly agree with the District Judge in the present case that an order under Order VII, Rule 10, of the Code of Civil Procedure could not with propriety have , been passed. The plaint as drafted was instituted in the proper Court, namely, in the Court of an Assistant Collector. If that particular plaint had been presented to any Civil Court, it would at once have been held that it disclosed no cause of action maintainable in a Civil Court. The question whether the plaintiff has or has not a cause of action against the defendant maintainable in a Civil Court, as for instance, by way of a suit for rent payable by a lessee to a lessor, or a claim for damages for the use and occupation of the plaintiff's land, is a matter which has not been determined one way or the other by the litigation now before us.

3. If this point be put on one side, it seems to me that we have not before us a case in which this Court can be called upon to exercise its revisional jurisdiction. The learned District Judge did not refuse to entertain the plaintiff's appeal to his Court. He took that appeal into his consideration and he decided the question of Jaw on which the Collector had differed from the Assistant Collector. He came to the conclusion that whatever money might or might not be due from the defendant to the plaintiff on account of the former's occupation of the land in suit, it was not rent within the meaning of that term as defined in Act II of 1901. That was a question of law which the District Judge was bound to determine on the pleadings before him, and which he has determined with reference to the evidence on the record and to the pleadings of the parties. The propriety or otherwise of his decision seems to me to depend very largely upon a question of evidence. The decision turns on a remark in the judgment of the District Judge to the effect that there is no reliable evidence to prove that this land was originally let for agricultural purposes. What the District Judge, no doubt, meant to say was that there seemed to him no reliable or satisfactory evidence with regard to what passed between the parties to the suit, or their predecessors-in-title, at the time when this land was originally leased by one party to the other. There is, however, certain evidence on the record which perhaps deserved to be considered by the learned District Judge as bearing on this point. The plaintiff has brought on the record copies of extracts from village papers, some of which at any rate are alleged in argument before us to be taken from the last revision of records of the Benares district prior to the commencement of the present Tenancy Act (Local Act II of 1901). It is contended that in these records the defendant is shown as holding the land in suit as a fixed-rate tenant. There has been considerable argument before us as to the legal effect of the presumption laid down by Section 9 of the Tenancy Act; but it was conceded that the effect of that section, stated at its lowest, is that the entries made regarding such tenures at the time of the last revision of records must be presumed to have been correctly made at the time. It seems to me, therefore, that the District Judge had before him a piece of evidence to the effect that the defendant was at one time a tenant at fixed rates in respect of the land in suit. Apparently, to the mind of the learned District Judge, this does not suggest any inference that the land must have been let to the defendant, or to his predecessor-in-title, for agricultural purposes. The difficulty which seems to me to lie in wait for Courts, if they refuse to draw such a presumption, is that they may find that they have to deal with a suit against a defendant who is a fixed-rate tenant of certain land by reason of the unrebuttable presumption laid down in Section 9 of the Tenancy Act, but who is nevertheless not liable to pay 'rent' within the meaning of the definition in Section 4, and who cannot be sued for rent under Section 182 of the same Act. This anomaly could certainly be avoided if the Courts are prepared to accept the fact of the defendant's being recorded as a fixed-rate tenant as raising at least a presumption that the land had been let for agricultural purposes. On this ground the decision of the learned District Judge seems to me open to criticism, and I have thought it right to express this view as the point was very fully and ably argued out before us. I remain, however, of the opinion that the present application cannot fairly be brought within the four corners of Section 115 of the Code of Civil Procedure. From my point of view the utmost that can be said is that the District Judge has declined to draw from a piece of documentary evidence on the record an inference which might perhaps have been drawn from the same. Nevertheless the question whether the land in suit in the present case was or was not agricultural land within the meaning of the definition in Section 4, Clause 2, of the Tenancy Act was one which the learned District Judge had jurisdiction to determine, and in this particular case he had jurisdiction to determine it without a right of appeal being allowed to the dissatisfied party. There was no appeal against his decision even on the ground of an error of law such as would justify a second appeal in cases where such appeal is permissible. I do not think it can fairly be held that the District Judge declined to exercise jurisdiction in the present case, or acted with material irregularity in the exercise of his jurisdiction. On this ground alone I would dismiss the present application.

4. Having said this much, it seems to me at least doubtful whether I ought to refer at all to another question which was argued at length and with much ability, namely, the question whether an application for revision from an order passed by the District Judge in a second appeal determined by him under Section 180 of the Tenancy Act is entertainable at all by this Court. I desire, however, to place it on record that, after fully considering the arguments which have been addressed to us, and admitting that the point is one of considerable difficulty, I am, as at present advised, of opinion that it would be doing violence to the words of the last clause of Section 167 of the Tenancy Act for this Court to entertain the present application at all. In my view this Court is a Court other than a Revenue Court within the meaning of the section above referred to. Further, if this Court were to take up the present application for revision and interfere with the orders passed by the Courts below, it would be taking cognizance of the dispute or matter in respect of which the present suit was brought. The present suit was one which was brought, and rightly brought in view of the allegations made in the plaint, in a Court of Revenue in accordance with Serial No. 2, Group (A), of the Fourth Schedule of the Tenancy Act. I am of opinion, therefore, that the Legislature has excluded the revisional jurisdiction of this Court from a matter of this nature, in spite of the fact that Section 115 of the Code of Civil Procedure gives this Court a general power of revision over cases decided by a District Judge. I have not overlooked the reference which was made in argument to the provisions of Section 193 of the Tenancy Act, but I do not think that this section meets ray objection. In the first place, the section on the face of it only refers to the procedure in all suits and proceedings under this Act, and it does not seem to me that it can be quoted as an authority on the question whether a revision by this Court would be admissible at all. In the- second place, Section 193 only applies to the provisions of the Code of Civil Procedure so far as they are not inconsistent with the Tenancy Act itself, and these words bring us back to the main question I have already been discussing. The question is:--Does Section 167 bar the revisional jurisdiction of this Court under the circumstances stated? It either does, or does not, but if it does bar the revisional jurisdiction of this Court, that jurisdiction cannot be brought in again under Section 193, because reference would then have to be made to a provision of the Code of Civil Procedure inconsistent with the provisions of the Tenancy Act, I would, therefore, dismiss this application with costs.

Walsh, J.

5. I agree in the order proposed in this case, feeling that circumstances prevent the Court from coming to a decision and finally setting at rest one very important question argued on both sides, as to which it is generally felt that some decision by this Court must inevitably at some time or another be obtained, and that it is desirable to obtain it. The inclination of my mind, after hearing the point exhaustively argued, is to hold that the decision of a District Judge given by way of an appeal from a Revenue Court is a decision of a Civil Court and is, therefore, subject to revision. I think on the whole that in such a case a revision by the Court cannot be said to be 'taking cognisance of a dispute or matter in respect of which a suit or application may be brought in the Revenue Court.' It is merely revising the judgment of a Civil Court.

6. I think there is a danger of confusing two distinct things. The first is whether the complaint which is made to this Court of the proceedings of an inferior Court is within the revision section; in other words, whether revision lies. The second is whether under all the circumstances of the case the complaint is justified or, in other words, whether the revision should be granted. To my mind those are two distinct, independent questions and unless they are so treated, it would be obviously impossible for this Court to entertain an application for revision at all without being satisfied that it must succeed.

7. Now, on the merits in this case the complaint was two fold. It was said, and rightly said, that the District Judge had held that no action lay. It was also, and in my view rightly, said that upon a matter where the evidence was in writing and uncontradicted, he had decided in disobedience to Section 9 of the Tenancy Act. Where two complaints of that kind occur, I think there is sufficient ground as a general rule for this Court to interfere in revision, upon the ground that the inferior Court although exercising its jurisdiction has acted with material irregularity. I find it difficult to say what would be a material irregularity apart from a question of form, if it does not include a decision on uncontradicted evidence in the teeth of an Act of Parliament.

8. As in this case it is necessary for the applicant to obtain a unanimous judgment on all points in his favour, nothing is to be gained by my dissenting, even if I were disposed to do so, from the order proposed. We are merely declining on the facts of this case to grant the revision application which has been pressed upon us. I feel less compunction in agreeing to the order proposed, inasmuch as I think that our decision only means that there has been no decision by the Court below or by this Court on any question except that specifically raised by the form of the plaint as brought by the plaintiff in the Revenue Court, and that, in our opinion, it is still open to the plaintiff, if so advised, to prosecute his claim in the Civil Court.

9. The application is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //