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Faqira Singh and ors. Vs. Pardamand Kumar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1932All92
AppellantFaqira Singh and ors.
RespondentPardamand Kumar
Excerpt:
.....that an application for ejectment is not considered to be an application for execution of the decree but the application must be made in the same manner as for execution of the decree. we hold that an application for ejectment under section 79 is clearly an application for execution of the decree and the determination of such an application is the determination of a question under section 47, civil p. we hold that the board had no jurisdiction to set it aside, nevertheless it had been set aside and the plaintiff clearly had no remedy open to him in the revenue courts. it may be that in the opinion of the civil court the defendants clearly have no title as tenants and are mere trespassers but the language of section 273 is imperative when the defendant pleads tenancy rights. it may..........the holding. the plaintiff then instituted a suit for a declaration that the order passed by the board of revenue in revision was passed without jurisdiction, and for a permanent injunction restraining the defendants from obtaining possession of the holding in pursuance of the board's order. the defendants obtained possession of the holding pursuance of the board's order before riling their written statement and pleaded that section 42, specific relief act, barred the suit for a mere declaration. the plaintiff then amended the plaint by-praying for recovery of possession of the holding. the defence was that the suit was barred by res judicata by reason of the board's order and that the suit was not cognizable by the civil court as the relation of landholder and tenants existed between.....
Judgment:

King, J.

1. The facts giving rise to this appeal are briefly as follows:

2. The plaintiff is a zamindar and the defendants ware his occupancy tenants, On 29th September 1928 the plaintiff obtained a decree for Us. 664 against the defendants for arrears of rent. Under Section 79, Agra Tenancy Act, 1926, the decree-holder applied to the Assistant Collector for the ejectment of the defendants in execution of his decree. Proceedings were taken under Section 80 and on 13th June 1927 the Assistant Collector passed an ax parte order for the ejectment of the defendants. On the next day, namely 14th June 1927, the defendants appeared and applied for review of the order of ejectment. On 25th Tuna 1927 the plaintiff obtained possession of the holdings in pursuance of the order passed under Section 80. On 2nd July the Assistant Collector rejected the application for review.

3. The defendants then applied for revision to the Board of Be venue, and on 25th October 1927, the Board accepted the application and set aside the ejectment order. The defendants applied to the Assistant Collector for being restored to possession of the holding. The plaintiff then instituted a suit for a declaration that the order passed by the Board of Revenue in revision was passed without jurisdiction, and for a permanent injunction restraining the defendants from obtaining possession of the holding in pursuance of the Board's order. The defendants obtained possession of the holding pursuance of the Board's order before riling their written statement and pleaded that Section 42, Specific Relief Act, barred the suit for a mere declaration. The plaintiff then amended the plaint by-praying for recovery of possession of the holding. The defence was that the suit was barred by res judicata by reason of the Board's order and that the suit was not cognizable by the civil Court as the relation of landholder and tenants existed between the parties.

4. The trial Court found that the Board's order dated 20th October 1927 was ultra vires and passed without jurisdiction and therefore it could not operate as res judicata. The Court also found that as the defendants had recovered possession in pursuance of a void order, and that no fresh contract of tenancy had been made between the parties, the defendants were mere trespassers and the civil Court had jurisdiction to eject them. The Court accordingly decreed the suit for possession. The defendants appealed but the lower appellate Court endorsed the findings of the trial Court and dismissed the appeal. The defendants now coma to this Court in second appeal.

5. The first question for determination is whether the Board of Revenue had jurisdiction to sat aside the order of ejectment passed by the Assistant Collector under Section 80. It has been expressly held in Mt. Narayani v. Mt. Parsanni [1905] 2 A.L.J. 331 that the civil Courts have jurisdiction to decide whether an order passed by the Board of Revenue in revision was passed ultra vires and without jurisdiction. This proposition has not been disputed before us. Under Section 242(1)(a) an appeal against the Assistant Collector's decree for arrears of rant clearly lay to the District Judge since the value of the subject-matter exceeded Rs. 200.

6. Under Section 248(3) if the order of ejectment is hold to be an order determining a question relating to the execution of the decree, under Section 47, Civil P.C., then it is clear that an appeal against that order would lie to the District Judge.

7. The question therefore arises whether the order of ejectment passed under Section 80 was an order relating to the execution pf the decree within the meaning of Section 47, Civil P.C.

8. In our opinion the answer must be in the affirmative. Section 79 provides an additional mode of executing a decree for arrears of rent, in addition to the ordinary modes of execution of a decree for money specified in Order 21, Rule 30, Civil P.C. It has been argued that there is a distinction between an application for execution of a decree for money and an application for ejectment under Section 79. The Board of Revenue in their order of 20th October 1927 (which is reported in Vol. 8, 'Unpublished Decisions, p. 130) take the view that an application for ejectment and an application for execution of a decree are essentially different, the former not being a step-in-aid of execution, and therefore Section 47 does not apply. It is pointed out that in group F, Schedule 4, Agra Tenancy Act, a distinction appears to be drawn between an application for the ejectment of a tenant on the ground of an unsatisfied decree for arrears of rent and an application for the execution of a money decree. It is true that an application for the ejectment of a tenant on the ground of an unsatisfied decree for arrears of rent is not expressly stated to be an application for execution of a decree for arrears of rent, but we are unable to hold that the language of this schedule affords any sound basis for the contention that an application for the ejectment of a tenant under Section 79 is not an application for execution of a decree for arrears of rent.

9. There is a difference between the language of Section 59, Agra Tenancy Act, 1901, and the corresponding Section 79, Agra Tenancy Act, 1926. Under the provisions of the old Act it might well have been held that there was a distinction between an application for ejectment under Section 59 and an application for execution of a decree. Section 59 lays down that the application for ejectment shall be made in the same manner as for execution of a decree.' This clearly indicates that an application for ejectment is not considered to be an application for execution of the decree but the application must be made in the same manner as for execution of the decree. The language of Section 79, on the other hand, expressly lays down that a decree for arrears of rent may be executed by the ejectment of a tenant. In our opinion it is quite clear that ejectment is provided as one of the modes of executing the decree for arrears of rent in addition to detention in the civil prison or attachment and sale of the judgment-debtor's property. The old rulings, such as S.D. 9 of 1912, passed with reference to the old Act, are, in our opinion, no longer applicable. We hold that an application for ejectment under Section 79 is clearly an application for execution of the decree and the determination of such an application is the determination of a question under Section 47, Civil P.C. It follows that an order of ejectment passed under Section 80 must be appealable to the District Judge. It may be noted that' under Section 248(1)(c) an appeal lies to the Collector from the order of an Assistant Collector allowing time under Section 80. No express provision is made for appeal from an order of ejectment under Section 80. In our opinion such an order must be held to be an order passed under Section 47, Civil P.C., which is provided for in Section 248(3). We agree with the Court below therefore that the Board of Revenue had no jurisdiction to set aside the order of ejectment passed under Section 80.

10. The second question is whether the Board had jurisdiction to set aside the order rejecting the application for review dated 2nd July 1927. Under Order 47, Rule 7, Civil P.C., no appeal lies against such an order and no appeal against such an order is expressly allowed under the Agra Tenancy Act. Prima facie therefore the Board of Revenue had jurisdiction to interfere in revision under Section 252 since, the decision of the application for review was a decision against which no appeal lies either to the District Judge or to the Board.

11. It is argued for the respondent that the application for review, although it purports to be an application for review, was in reality an application for setting aside an ex parte order. We cannot accept that contention since it has been held in Baldeo Prasad Shukul v. Suhhdeo Shuhul : AIR1929All485 , that Order 9, Rule 13 does not apply to an application for setting aside an ex parte order in execution proceedings.

12. It is further contended for the respondent that the application should be held to be an application under Section 47, as it related to the execution of the decree and the provisions of Order 47, Rule 1 were not applicable. We do not agree to this contention. The grounds for review may have been inadequate, but in our opinion the application really was an application for review. We consider the application to be an application for setting aside an order passed under Section 47 by way of review.

13. It is farther argued for the respondent that if the application is to be treated as an application for review then an application for revision of the Assistant Collector's order lay to the High Court and not to the Board of Revenue. The case of Ramjiwan v. Ram Adhin (S.D. No. 1 of 1928) is cited in support of this contention. The ruling does no doubt support the respondent's contention, The facts of the case were very similar to the facts of the casa before us. In that case the Assistant Collector refused to review his own judgment in a profit case under Section 226 in which decree for Rupees 483 had been given and it was held that an application for revision of the order does not lie to the High Court but to the Board of Revenue. It may be anomalous that if the Assistant Collector had granted the application for review then his order would have been appealable to the District Judge under Section 248(3), whereas if the Assistant Collector rejects the application for review than an application for revision of the order lies to the Board and not to the High Court. We must however interpret the language of Sections 252 and 253 according to their plain and ordinary meaning. It appears to us clear that Section 253 only empowers the High Court to exercise revisional powers in cases decided by a subordinate Revenue Court in which an appeal lies to the District Judge.

14. No appeal lay to the District Judge against the order rejecting the application for review. So in our opinion the High Court was not empowered to interfere in revision under Section 253. The Board of Revenue, on the other hand, were empowered under Section 252, since no appeal from the order rejecting the application for review lay either to the District Judge or to the Board. We hold, therefore that the Board had power to set aside the Assistant Collector's order rejecting the application for review. The result 1 of Betting aside the Assistant Collector's order rejecting the application for review would be that the case should have been I returned to the Assistant Collector's Court for rehearing the case under Order 47, Rule 8. In our opinion the fact that the Board had power to set aside the order refusing the application for review could not empower the Board to set aside the order of ejectment, under the guise of an incidental order.

15. The last question is whether the civil Court was competent to decree the delivery of possession by ejecting the defendants. It has been argued for the appellant that the suit for the ejectment of the defendants is barred under Section 230,. Agra Tenancy Act, as the plaintiff might have applied to the Revenue Court to enforce the order of ejectment passed under Section 80. But the order of ejectment had been set aside by the Board. We hold that the Board had no jurisdiction to set it aside, nevertheless it had been set aside and the plaintiff clearly had no remedy open to him in the Revenue Courts. Moreover his case is that the defendants are mere trespassers and not tenants and in our opinion the suit was rightly instituted in the civil Court.

16. The question remains however whether in view of the provisions of Section 273, Agra Tenancy Act, the civil Court was not bound to frame an issue on the plea of tenancy and submit the record to the Revenue Court for decision of the issue. In our opinion Section 273 is applicable. The defendants certainly pleaded that they held the land as tenants of the plaintiff. The Court below has hold that Section 273 does not apply because the defendants had lost all tenancy rights that might previously have existed after they had been ejected and therefore the suit could not be held to be a suit relating to an agricultural holding, This seems to be arguing in a circle. The finding that the suit does not relate to an agricultural holding involves the decision of the question whether the defendants are tenants of the plaintiffs and this is a question which the Revenue Courts alone have jurisdiction to decide. It may be that in the opinion of the civil Court the defendants clearly have no title as tenants and are mere trespassers but the language of Section 273 is imperative when the defendant pleads tenancy rights. It may be noted that in the converse case under Section 271 when a party raises a plea of proprietary rights in a Revenue Court the Revenue Court is not bound to refer the issue to the civil Courts for decision if the Revenue Court considers that the plea is clearly untenable and intended solely to oust the jurisdiction of the Revenue Courts. No such discretion has been given to the civil Courts under Section 273, We hold therefore that the civil Court had no power to decree possession without first framing an issue on the plea of tenancy rights.

17. We therefore frame the following issue:

Assuming that the Board's order dated 20th October 1927 setting aside the order of ejectment, was passed without jurisdiction, did the relation of landholder and tenant exist between the plaintiff and the defendants when the latter recovered possession of the holding in pursuance of the Board's order.

18. We send the record to the Court of the Assistant Collector which passed the order of ejectment under Section 80 for decision of the issue. The finding of the Revenue Court should be submitted within two months and ten days will be allowed for objections. Parties will be allowed to adduce evidence if they think fit, relevant to the issue framed. Costs of this appeal will abide the result.


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