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Chhotey Lal Vs. Pandit Har Narain - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in13Ind.Cas.634
AppellantChhotey Lal
RespondentPandit Har Narain
Excerpt:
agra tenancy act (ii of 1908), section 4(2) - 'land', meaning of--whether includes grove land--tenancy--suit in revenue court for ejectment on ground of sub-tenancy--subsequent suit in civil court for ejectment on ground of trespass--resjudicata. - - i fail to see that this decision is a bar to the present suit......granted the land to the defendant for the purpose of planting a grove and allowed him to hold the land rent-free, and that he, the defendant, had planted the grove and the trees then standing on the land. the parties went into evidence and the assistant collector held that the relationship off landlord and tenant did not exist between the parties and, therefore, the plaintiff was not legally entitled to sue for rent. he did not attempt to decide the other issues. the plaintiff then came to the civil court with the present suit. he made his claim in a peculiar manner. he went back to the ejectment suit of 1906. he pleaded that in that suit the defendant had set up a title in himself and had denied the plaintiff's title, that the assistant collector had decided the point in plaintiff's.....
Judgment:

Tudball, J.

1. This appeal arises out of a suit in ejectment brought by the plaintiff, a grove-holder, against the defendant. It is to be noted in the commencement that neither party claims to be the zemindar of the soil. The bone of contention between the parties is a plot of land belonging to the zemindar which is planted with trees, in other words, it is a tenant's grove. In 1906 the plaintiff brought a suit in the Revenue Court to eject the defendant claiming the latter to be his sub-tenant, The first Court decreed the suit in his favour. The defendant appealed to the Commissioner. The latter dismissed the suit holding that it was one which ought to have been brought in the Civil Court. However, in 1908, the plaintiff brought a suit for rent against the defendant in the Revenue Court. In that suit the defendant raised the following pleas: first, that he cultivated the land without any rent having been legally fixed; secondly, that the plaintiff had formerly brought a suit for rent but had withdrawn it because no rent had been fixed; thirdly, that as the plaintiff had not had the rent assessed by a Court and as no rent had been fixed by an agreement between the parties the plaintiff had caused a fictitious rent to be entered which, as a matter of fact, had not been paid, and, fourthly, that the plaintiff had only purchased trees of the grove, that he had cut and removed his trees and that he could not sue for rent. The Assistant Collector framed five issues, the last issue being is the plaintiff legally entitled to sue or not?' The meaning of this issue apparently was whether or not the relationship of landlord and tenant existed between the parties. The plaintiff apparently purchased the grove standing on this land on the 19fch December 1871 from one Musammat Jasoda, who presumably was a tenant from the zeminiar. The defendant's case in the suit for rent was that the plaintiff had cut and removed his trees, that the zemindar had granted the land to the defendant for the purpose of planting a grove and allowed him to hold the land rent-free, and that he, the defendant, had planted the grove and the trees then standing on the land. The parties went into evidence and the Assistant Collector held that the relationship off landlord and tenant did not exist between the parties and, therefore, the plaintiff was not legally entitled to sue for rent. He did not attempt to decide the other issues. The plaintiff then came to the Civil Court with the present suit. He made his claim in a peculiar manner. He went back to the ejectment suit of 1906. He pleaded that in that suit the defendant had set up a title in himself and had denied the plaintiff's title, that the Assistant Collector had decided the point in plaintiff's favour, that the defendant instead of appealing to the District Judge (there being a question of proprietary title) had appealed to the Commissioner, that the Commissioner had no jurisdiction to hear the appeal, and that, therefore, his decision upsetting that of the Assistant Collector was ultra vires and of no force. In execution of the Assistant Collector's decree the plaintiff had ejected the defendant but after the decision of the Commissioner the defendant in execution of the Commissioner's decree re-gained possession. The re-gaining of possession in this manner the plaintiff claimed to be a trespass and he pleaded the decision of the Assistant Collector as res judicata. The Court of first instance accepted this plea of the plaintiff and decreed the suit without going into the merits. On appeal the lower Appellate Court held, relying on the decision in Niranjan v. Gajadhar 5 A.L.J. 71 : A.W.N. (1906) 45 : 30 A. 133 that the question between the parties was not a question of proprietary title and, therefore, the appeal did lie to the Commissioner and the point was, therefore, not res judicata by reason of the Assistant Collector's decision in 1906, and remanded the case for decision on the merits. On the merits the Munsif found in favour of the plaintiff and held that beyond doubt he was the owner. In this finding the lower Appellate Court has also acquiesced and this is a finding of fact and I am bound by it. In the Munsif's Court, however, after the evidence had been taken, a plea was raised orally that the decision of the Assistant Collector in 1908 in the rent suit operated as res judicata on this very point as to which of the parties was the owner of the grove. Both the Courts below have rejected this contention and1 held that the decision did not operate as res judicata. -The sole point taken on appeal before me is that the decision of 1908 by the Assistant Collector does operate as res judicata and the Civil Court is bound by that decision and cannot go behind it. The question in the Revenue Court was a question between two persons claiming tenant-right. It is urged before me that a grove-holder is not a tenant within the meaning of the Act, that the word 'land' defined in the Tenancy Act is land which is held for agricultural purposes, that the present land is held for the purpose of a grove and not for agricultural purpose, and that, therefore, the question between the parties in the rent-suit of 1808 was really a question of proprietary title and not a question of tenant-right. To this contention I find myself unable to accede. One has only to look to the pleadings of the defendant in the rent-suit of 1908 to see that he admittedly cultivated the land, that the land was, as a matter of fact, being used for agricultural purpose; but over and above that the land which is used for the purpose of a grove is, in my opinion, used for agricultural purpose. The person who holds it is a person by whom rent is and would be payable but for a contract express or implied. Rent, moreover, means what is to be paid or delivered by a tenant in cash or in kind for the land held by him or on account of a grove. I have no hesitation in holding that a grove-holder is a tenant. It is unnecessary for me to decide the more difficult question as to what class of tenant he may be. For the purpose of the present case, it is sufficient to decide that he is a tenant and that the matter in dispute between the present parties is merely a question of tenant-right and not proprietary title. In my opinion, the decision in Niranjan v. Gajadhar 5 A.L.J. 71 : A.W.N. (1906) 45 : 30 A. 133 is one which applies to the present dispute. The decision by the Tahsildar in 1908 was a decision on the point as to the relationship of the parties. No doubt, he was of opinion that the defendant had received the land direct from the zemindar and not from the plaintiff, and for this reason he held that the defendant was not the plaintiffs tenant. I fail to see that this decision is a bar to the present suit. The plaintiff, as a matter of fact, has had to accept that decision and also the Commissioner's decision and has come to the Civil Court to sue the defendant as a trespasser. To hold that the decision of the Tahsildar on the point operated as res judicata would really lead to gross injustice. The Revenue Court has declined jurisdiction and has held that the defendant is not the plaintiffs sub-tenant. The plaintiff accepting that has now sued in the Civil Court to eject the defendant as, a trespasser. The zemindar is no party to the suit which is one between rival claimants to a tenant-right, and as between them the matter is one for decision by the Civil Court and the Assistant Collector's decision cannot operate as res judicata. Either the defendant is a trespasser or a sub-tenant and the plaintiff is entitled to have his right to eject the defendant decided by a competent Court. In my opinion the decision of the Court below on this point is perfectly correct, The plaintiff is not precluded by the decision of the Tahsildar. The appeal, therefore, fails and is dismissed with costs including in this Court fees on the higher scale.


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