Skip to content


Mohd. Ibrahim Vs. Ishrat HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Case NumberCivil Revn. No. 493 of 1946
Judge
Reported inAIR1952All658
ActsSuits Valuation Act, 1887 - Sections 3, 4 and 8; Uttar Pradesh Tenancy Act, 1939 - Sections 214(1); Courts-fees Act, 1870 - Sections 7
AppellantMohd. Ibrahim
Respondentishrat HusaIn and ors.
Appellant AdvocateGyanendra Kumar and ;Lakshman Swarup, Advs.
Respondent AdvocateK.B. Asthana, Adv.
DispositionRevision allowed
Excerpt:
property - valuation of suit - sections 4 and 8 of suit valuation act, 1887, sections 7 (v) and 7 (xi) of court-fees act, 1870 and section 214 (1) (d) of u.p. tenancy act, 1939 - holding over by 'thekadar' - ejectment suit under section 214 (1) (d) of u.p. act - suit falls under section 8 of act of 1887 - valuation for purpose of court-fee and for purpose of jurisdiction will be according to annual rent. - - 2. the suit filed by the plaintiffs-opposite-party was valued, for the purpose of jurisdiction as well as for payment of court-fee, at rs......3. this contention found favour with the learned district judge, who held that under section 4, suits valuation act, the suit should have been valued according to the market value of the property, as the suit was for possession of land within the meaning of section 7, sub-section (v), court-fees act, and it was not a suit against a tenant, because a thekadar could not be considered a tenant. evidently, it was argued before him--as it has been argued before us--that the suit was 'for the recovery of immoveable property from a tenant.....holding over alter the determination of atenancy'contemplated by clause (cc), sub-section (xi), section 7 of the act. as he found the market value of the property to be rs. 6000, he held that he had no jurisdiction to hear the appeal, which should have.....
Judgment:

P.L. Bhargava, J.

1. Qazi Saulat Husain was the zamindar and lambardar of village Kishanpur-Faridpur-Das. On 5 11-1936, he granted a theka of his entire zamindari share in the village, which was assessed to land-revenue amounting to Rs. 200, for a period of eight years, reserving an annual rant at of Rs. 500. After the death of Saulat Husain, on the expiry of the period of the theka, Qazi Ishrat Husain and others, the opposite party, as his heirs and legal representatives, instituted a suit in the revenue Court for ejectment, under Section 214, U. P. Tenancy Act, 1939, against Hafiz Mohammad Ibrahim, the thekadar, who is the applicant before us. The suit was contested by the thekadar on the ground that the lessor had renewed the theka for a further period of five years, on the original terms. An issue about proprietary title, which arose in the suit, was decided by the civil Court under Section 286 (2) of the Act, and thereafter the suit was decreed.

2. The suit filed by the plaintiffs-opposite-party was valued, for the purpose of jurisdiction as well as for payment of court-fee, at Rs. 500, the annual rent reserved under the lease. The appeal was similarly valued by the defendant-applicant and under Sub-section (4), Section 286, of the Tenancy Act, it was filed in the Court of the District Judge. On behalf of the plaintiffs-opposite-party it wascontended that, having regard to the valuation of the suit, which should have been fixed, according to the market value of the property, at Rs. 6000, the Court had no jurisdiction to entertain the appeal.

3. This contention found favour with the learned District Judge, who held that under Section 4, Suits Valuation Act, the suit should have been valued according to the market value of the property, as the suit was for possession of land within the meaning of Section 7, Sub-section (v), Court-fees Act, and it was not a suit against a tenant, because a thekadar could not be considered a tenant. Evidently, it was argued before him--as it has been argued before us--that the suit was

'for the recovery of immoveable property from a tenant.....holding over alter the determination of atenancy'

contemplated by Clause (cc), Sub-section (xi), Section 7 of the Act. As he found the market value of the property to be Rs. 6000, he held that he had no jurisdiction to hear the appeal, which should have been filed in this Court. Accordingly, he directed that the memorandum of appeal be returned for presentation to the proper Court. The order of the District Judge is being challenged in this revision.

4. Admittedly, the appeal lay to the civil Court and it had to be filed in accordance with the provisions of Section 286 (4) of the Tenancy Act, which are as follows:

'An appeal from a decree of a revenue Court passed in a suit in which an issue involving a question of proprietary right has been decided by a civil Court, under Sub-section (2) shall lie to the civil Court which having regard to the valuation of the suit, has jurisdiction to hear appeals from the Court to which the issue of proprietary title has been referred.'

5. We have, therefore, to see what was the valuation of the suit. It is not disputed that the suit was correctly valued at Rs. 500, according to the annual rent reserved under the lease, for purpose of payment of court-fee; but it has been contended that the valuation of the suit for purpose of jurisdiction was Rs. 6000, namely, the market value of the property. The contention is based upon Section 4, Suits valuation Act, in which certain sections, including Section 7(v) but not Section 7(xi)(cc), Court-fees Act are mentioned and it is laid down that the suits governed by those sections should be valued according to market value of the subject-matter in dispute.

6. As we have already seen, the learned District Judge was of the opinion that the suit was of the nature mentioned in Section 7(v), Court-fees Act, and as such it was governed by Section 4, Suits Valuation Act. The learned counsel for the applicant has, however, contended that the suit falls within the purview of Section 7(xi)(cc), Court-fees Act and therefore, Section 4, Suits Valuation Act, has no application. In support of this contention, it has been urged that the position of the defendant-applicant, who was a thekadar, was analogous to that of a tenant, and the suit was not for the recoveryof proprietary possession but to eject a person who claimed limited rights in the property in dispute.

7. The important question for consideration in the case is whether the suit, which was filed against the defendant-applicant, was one for possession of land within the meaning of Section 7(v), Court-fees Act, or one of the nature mentioned in Section 7(xi)(cc), Court-fees Act against a tenant. The word 'tenant' has not been defined in the Court-fees Act or in the Suits Valuation Act, and we have to fall back upon the provisions contained in the Tenancy Act, as the suit, with which we are concerned, was filed thereunder.

8. The suit was filed by a lessor against a thekadar, for ejectment on the ground that he was holding over after the expiry of the period of the theka. It was a suit under Clause (d), Sub-section (1), Section 214 of the Tenancy Act.

9. Section 222 of the Tenancy Act lays down:

'Every suit or application brought by a thekadar against the lessor, or against a thekadar by the lessor, under the provisions of this Chapter, which is of the same nature as any suit or application specified in Schedule 4, which may be brought by a tenant against a land-holder or by a land-holder against a tenant, shall be deemed to be included in that Schedule under the same serial number as such similar suit or application.'

10. The learned counsel for the applicant has pointed out that the present suit was similar to the Suit entered at serial No. 17 of the suits mentioned in Group B of Schedule 4, consequently, it should be treated as a suit against a tenant. A reference to Section 175 of the Tenancy Act goes to show that, subject to the provisions of Section 19, a non-occupancy tenant shall be liable to ejectment on the application of the landlord on any of the grounds mentioned therein; and one of the grounds of ejectment mentioned in Clause (b) of the section is

'that he is a tenant holding under a lease or for a period which has expired or will expire before the end of the current agricultural year.'

Section 214 (1) (d), Tenancy Act, contemplates a suit for ejectment on a similar ground. In certain circumstances, an application under Section 175 of the Act is to be treated a suit, under Section 179 of the Act, and it is entered at serial No. 17; and the present suit was similar to a suit of that description.

11. A comparison of the suits contemplated by Clauses (b) and (c), Sub-section (1), Section 214, Tenancy Act and of the suits mentioned in Clauses (a) and (b), Sub-section (1), Section 172 of the same. Act shows that they are of similar nature; and, in view of the provisions of Section 222 of the Act, if a suit of the latter description is instituted by the lessor against the thekadar, it would be deemed to be a suit against a tenant, as if it was a suit under Section 172 of the Act, which is also mentioned in Schedule 4.

12. If a suit of any of the kinds mentioned above filed by a lessor against a thekadar is to be treated as a suit by a landlord against a tenant, there appears to be no reason why a thekadar isnot considered a 'tenant,' within the meaning of the term used in Section 7(xi)(cc), Court-fees Act.

13. In Ghulam Dastagir v. Marudai Pillai A. I. R. 1948 Mad. 409 at p. 410, it was observed:

'Sub-clause (cc) (of Section 7(xi) was intended to enable a landlord to bring a cheap suit against a tenant guilty of holding over after the determination of his tenancy. That the word 'tenant' must not be taken too literally is to be found in numerous cases including Govinda v. Mohini Mohan, 57 Cal. 349, Manickam Pillai v. Ratna Swami Nadar, 33 Mad. L. J. 684 and Privy Council case in Karnani Industrial Bank Ltd. v. Satya Niranjan Shaw, 32 C. W. N. 1093.'

In Ramcharan v. Sheo Dutta, 2 Pat. 260 at p. 264, it was held that a suit against a tenant, who was the thekadar and whose thekadari interest had expired, but who refused to quit, fell within Clause (cc) of Para. (xi) of Section 7 and that section applied where, in such circumstances, the landlord brought a suit to eject him.

14. The learned counsel for the opposite party has conceded that the present suit was of the nature entered at Serial No. 17 of the suits mentioned in Group B of Schedule 4 of the Tenancy Act, and based an argument thereon. He has urged that the court-fee payable in a suit of the kind entered at Serial No. 17 is mentioned there in Col. 6; hence, it cannot be said that for purposes of payment of court-fee the suit was governed by Section 7(xi)(cc), Court-fees Act. He has also urged that in that respect the Tenancy Act is self-contained.

15. We are, however, not concerned in the present case with the payment of court-fee. On the other hand, in order to decide the forum of appeal, we have to find out the valuation of the suit and for that purpose we have to refer to the provisions of the Suits Valuation Act, as there is no provision about it in the Tenancy Act. A reference to the Suits Valuation Act makes it clear that only the suits, which are covered by the particular sections of the Court fees Act mentioned in Section 4 thereof, have to be valued according to the market value of the subject-matter in dispute; and, under Section 8 of the same Act, in other suits the valuation of the suit for purposes of payment of court-fee and for jurisdiction is to be the same. The suits in which the court-fee is payable in accordance with the provisions of Section 7(xi)(cc), Court-fees Act, or even as prescribed in Col. 6, Schedule 4, Tenancy Act, which are not mentioned in Section 4, Suits Valuation Act, are not required to be valued for purpose of jurisdiction according to the market value of the property in dispute.

16. Suits for possession of land against tenants have been separately dealt with in the Court-fees Act and are not covered by Section 7(v) of the Act. Consequently, the suits against thekadars, which are suits similar to those against tenants, cannot come within the purview of Section 7(v) of the Act. Therefore, we are unable to uphold the view taken by the learned District Judge that the present salt was governed by the provisions of Section 7(v), Court-fees Act, and as such it was covered by Section 4,Suits Valuation Act. In our opinion, the suit was governed by the provisions contained in Section 8 of the same Act; consequently, the valuation for the purposes of payment of court-fee and jurisdiction would be the same. Admittedly, the valuation of the present suit for the purpose of payment of court-fee was to be fixed according to the annual rental that is Rs. 500 and the same would be the valuation for the purpose of jurisdiction. The valuation put by the defendant-applicant on the memorandum of appeal, which he filed in the Court below, was, therefore, correct; and the appeal was properly filed in the Court of the District Judge.

17. As already pointed out, the plaintiffs opposite party had themselves valued the suit at Rs. 500, for purposes of payment of court-fee and jurisdiction. They were in a way estopped from challenging the valuation which they had themselves put in their plaint, and which the defendant-applicant had accepted for the purpose of valuing the appeal. Their attempt to go back upon that valuation should not have been encouraged.

18. We are, therefore, of opinion that the decision of the Court below is wrong. Accordingly, we allow this revision, set aside the order of the learned District Judge and direct him to proceed with the hearing of the appeal and dispose of it according to law. In view of the conduct of the plaintiffs opposite party, we direct them to bear their own costs and pay those of the applicant before us. The stay order is discharged.


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