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Nisar HusaIn and anr. Vs. Sundar Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1927All657
AppellantNisar HusaIn and anr.
RespondentSundar Lal and ors.
Excerpt:
- .....of the plaintiff, the court was bound to proceed under section 202, old agra tenancy act. the lease in question was not a lease of any fractional undivided shares in villages, in which case the lessee can merely collect rents from joint tenants. it was a lease of specific complete khewat numbers, with areas and government revenues separately specified, and the lessee was expressly given power to cultivate the lands himself or to have them cultivated by the other tenants. when specific areas are leased and express power is given to the lessee to take actual possession of those areas and he has the option to cultivate them himself, it is difficult to hold that the lease is not for agricultural purposes. the document does not in any way suggest that the lease was granted for any.....
Judgment:

Sulaiman, J.

1. This is a defendants' appeal arising out of a suit for ejectment. The plaintiffs and defendant 3, who formed a joint Hindu family, obtained a decree on the basis of a mortgage-deed for sale against Basharat Husain. While this decree was in execution Basharat Husain executed a lease, dated 29th September 1919, in favour of the father of Nisar Husain, defendant 1, for a period of 10 years. This lease comprised a number of khewats in three villages out of several, which were included in the mortgage. In 1921 the decree-holders purchased the mortgaged properties at auction and later obtained formal delivery of possession against the mortgagor. They have now brought this suit for ejectment of the lessee in the civil Court. The main defence of the lessee consisted of a plea that there was relationship between the parties of zamindar and lessee, and the civil Court has no jurisdiction to eject the defendant, and a further plea was that in view of certain proceedings in 1920 the present claim was barred. The learned Subordinate Judge has decreed the suit and the mortgagor and the lessee have appealed.

2. It appears that Piare Lal, defendant 3, had also a simple money decree against his mortgagor and executed it by attachment of the rents due from the tenants. Nasir Husain intervened and raised an objection under Order 21, Rule 58, Civil P.C., that he was in possession as a lessee and that the rents due from the tenants could not be attached by the decree-holder. On the 1st May 1920, the lessee's objection was allowed, it being held that the lease was not fictitious. The defendants contend that this order bars the present claim, inasmuch as no suit for a declaration that the lease was fictitious, was brought within one year of the order. In our opinion, the order is final only to the extent that the lease was not fictitious and was not a mere waste of paper. It cannot, however, prevent the plaintiffs from seeking to avoid the lease on the ground that it was executed during the pendency of their mortgage suit. It is obvious that in the proceedings relating to the execution of the simple money decree the present plaintiffs could not have avoided the lease on the ground of its being a pendente lite transfer. The order of the 1st May 1920, cannot, therefore, be a bar so far as the avoidance of the lease on this last mentioned ground is concerned.

3. Although a defendant in a mortgage suit has power, so long as he retains his possession, to grant leases in the ordinary course of management of his property, he cannot make transfers to enure beyond the time when the property passes by sale to his mortgagees. Such a transfer if made, can undoubtedly be avoided under Section 52, Transfer of Property Act. The point which the Court below had to consider first was whether the suit related to an agricultural holding, for if it did, then the defendant lessee, having pleaded that he was a tenant of the plaintiff, the Court was bound to proceed under Section 202, old Agra Tenancy Act. The lease in question was not a lease of any fractional undivided shares in villages, in which case the lessee can merely collect rents from joint tenants. It was a lease of specific complete khewat numbers, with areas and Government revenues separately specified, and the lessee was expressly given power to cultivate the lands himself or to have them cultivated by the other tenants. When specific areas are leased and express power is given to the lessee to take actual possession of those areas and he has the option to cultivate them himself, it is difficult to hold that the lease is not for agricultural purposes. The document does not in any way suggest that the lease was granted for any non-agricultural purpose. The form of the document is the ordinary form of leases which may be granted by a zamindar to tenants of specific plots. These khewat lands are undoubtedly agricultural lands. A holding was defined as a parcel or parcels of land held under one tenure engagement or one lease, and land was defined as land which was let or held for agricultural purposes. We, therefore, find it very difficult to agree with the Court below that the lands under the lease did not constitute an agricultural holding. It follows that it was incumbent on the Court below to proceed according to Section 202.

4. It has been contended on behalf of the respondents that a suit for a declaration that the lease is void or not binding on the plaintiffs, can only lie in the civil Court, and that the revenue Court can have no jurisdiction to declare it invalid. This contention, in our opinion, has no force. No doubt under the old Act, the question as to which Court should eject a thekadar, was often a matter of considerable difficulty. The position has now been simplified by the enactment of Chap. 13 of the new Act. But even under the old law the revenue Court had jurisdiction to go into the question of the validity of a lease. Such a point arose in the case of Sher Khan v. Debi Prasad [1915] 37 All. 254 where the plaintiffs on having obtained possession of a zamindari share on his auction purchase, found in existence a perpetual lease of a portion of the property. Piggott, J., held that his natural remedy, if as a matter of fact the lease was executed under such circumstances as not to be binding upon him, was by way of a suit for ejectment under Section 58, Tenancy Act, and that such a suit would be cognizable by the revenue Court. The learned Judge further held that the plaintiff in such a case would seek for ejectment of the defendants lessees on the ground that they hold only as tenants from year to year; that in reply the perpetual lease would be set up and in order to the determination of the question thus raised the revenue Court would have to decide whether the said lease was valid and binding on the plaintiff. Chamier, J., agreed with that view and both the learned Judges held that the case was covered by the principle of the decision in Ram Singh v. Girraj Singh [1915] 37 All. 41, where it had been laid down that a revenue Court has jurisdiction to go into the question of validity or invalidity of a lease set up by a defendant.

5. The case of Dhandei Kuar v. Chhotu Lal A.I.R. 1922 All. 442. and of Amini Bibi v. Sayed Yusuf A.I.R. 1922 All. 449 are distinguishable. In the former case the property said to have been leased consisted of a taluka of 26 complete villages, a market, groves and several houses, It was accordingly held that the suit did not relate to an agricultural holding. In the latter case the learned Judge had found that the mind of the lessor was deranged, and he was mentally unfit and incapable of understanding or realizing the effect of the lease; and accordingly it was held that the lease was void from its very inception and the position of a person holding under such a lease was that of a trespasser. The property comprised in the lease consisted of an undivided fractional share in a village, namely, a 6 annas and 4 pies share, and the Court was of opinion that it was not an agricultural holding. The procedure followed in the case of Raghu Nath v. Ganesh [1920] 42 All. 222 was to set aside the decree of the Court below and to return the record with directions to readmit the suit on its original number and to proceed according to Section 202, Tenancy Act.

6. Since the passing of the first Court's decree the Agra Tenancy Act of 1901, has been replaced by Act 3 of 1926, and in the place of the old Section 202 we now have Section 273 which lays down a slightly different procedure. Section 2 has expressly repealed the former Act. The question is whether the Court below should now follow the procedure laid down under Section 273 of the new Act or that under Section 202 of the old Act, In our opinion enactments dealing with procedure have an immediate effect and must, unless the contrary is expressed, apply to all actions, whether commenced before or after the passing of the Act. A party has no vested right in mere procedure. The Courts have to adopt the procedure laid down by statutes which are in force for the time being. The provisions of Section 273 are undoubtedly a rule of procedure, and not a matter of substantive law. We have, therefore, no hesitation in saying that the Court below should follow the procedure laid down by Section 273, and instead of requiring the defendant to institute a suit in the revenue Court for the determination of the question of tenancy, frame an issue on the plea of tenancy and submit the record to the appropriate revenue Court for the decision of that issue only.

7. We accordingly allow this appeal and setting aside the decree of the Court below, send the case back to that Court with the direction that it should readmit it and proceed as directed by Section 273 Act 3 of 1926. Having regard to all the circumstances of the case, we think that the costs incurred in the Court below and in this appeal, should abide the event.


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