Skip to content


Syed Zahid Ali Sabzposh Vs. Syed Shahid Ali Sabzposh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Case NumberFirst Appeal No. 91 of 1944
Judge
Reported inAIR1952All660
ActsUttar Pradesh Tenancy Act, 1939 - Sections 242
AppellantSyed Zahid Ali Sabzposh
RespondentSyed Shahid Ali Sabzposh
Appellant AdvocateZ.H. Lari and ;C.S. Saran, Advs.
Respondent AdvocateMushtak Ahmad, ;Waheed Ahmad Khan and ;B. Mukherji, Advs.
DispositionAppeal dismissed
Excerpt:
property - effect of omission of word 'adequate' - section 242 of u.p. tenancy act, 1939 - suit for perpetual injunction - subsidiary relief and not main relief - intention of legislature - exclude cognizance of civil court in respect of relief obtained in revenue court. - - the management of the property in suit was in the hands of syed wajid ali, who died in october 1938. thereafter, at the request of the defendant, the management was entrusted to him (defendant). as the defendant did not manage the property well nor did he render accounts he cancelled the arrangement by means of a notice, dated 14-12-1941. notwithstanding the notice, the defendant continued making realizations from the property and failed to render accounts. 6. after reciting the circumstances in which the defendant..........this difference that in the latter the words used were 'adequate relief' while in the former the word 'adequate' does not find place. it may however, be noted that by a subsequent amendment the word 'any' has been added before the word 'relief' in section 242 aforesaid. the appellant's counsel has relied upon parmeshwari das v. angan lal, 1944 all. l. j. 67. there at p. 69 the learned judges observed: '......' the fact that the word 'adequate' whichpreviously existed in the section and does not find place in the new section does not make any real difference on the question of the interpretation of the section. even now the section excludes only those suits based on a cause of action in respect of which relief could be obtained by mains of any such suit in the revenue court, and though.....
Judgment:

P.L. Bhargava, J.

1. This is a plaintiff's appeal. The suit, which has given rise to this appeal, was instituted by Syed Zahid Ali, the plaintiff-appellant, against his own brother, Syed Shahid Ali, the defendant respondent for the purpose of obtaining a perpetual injunction restraining the latter from looking after the management of their shares in seven villages, which he described as wakf property and the shares in three other villages, which he claimed as his exclusive property, mentioned in Clauses A and B, at the foot of the plaint and from making collections there from, and also for settlement of account and recovery of his share of profits of the said villages.

2. The plaintiff's case was as follows : The property in suit had been made wahf-alal-aulad and he was the mutwalli of the same. The property mentioned in Clause B was exclusively owned by him. The management of the property in suit was in the hands of Syed Wajid Ali, who died in October 1938. Thereafter, at the request of the defendant, the management was entrusted to him (defendant). As the defendant did not manage the property well nor did he render accounts he cancelled the arrangement by means of a notice, dated 14-12-1941. Notwithstanding the notice, the defendant continued making realizations from the property and failed to render accounts.

3. The defendant, among other things, contended that the plaintiff was neither the mutwalli of the entire property in suit nor was he the exclusive owner of the entire property mentioned in Clause B; that the property in suit was not under his management is the manner alleged by the plaintiff; on the other hand, by mutual arrangement, he used to get the entire profit realized from the property for his pocket expenses; and that he was a co-sharer in the property and the suit was not cognizable by the civil Court.

4. The trial Court has found that the plain, tiff is the owner of the property in Clause B; that the plaintiff is the mutwalli of the property mentioned in Clause A; and that the defendant was in charge of the property in Clauses A and B to realize money for his pocket expenses and notwithstanding the circumstances in which the defendant was put in charge of the property the plaintiff was entitled to cancel the arrangement. It has also found that the property item No. 5 in Clause A was the exclusive property of the plaintiff, while in the remaining property mentioned in the two clauses the defendant was a co-sharer either as an owner or as a mutwalli, and that the civil Court had jurisdiction to try the suit so far as the property item No. 5 of Clause A was concerned; but in respect of the remaining property mentioned in the two clauses, wherein the defendant had a share, the suit was not cognizable by the civil Court. As a result of the above findings, the Court granted the relief of injunction as far as the property item No. 5 of Clause A was concerned and refused it in respect of the remaining property in dispute, as the plaintiff was entitled to seek other remedies; but it refused to grant the relief for settlement of account and for share in the profits even in respect of the property item No. 5 of Clause A because the plaintiff could claim that relief in suits for accounting pending at the time.

5. In this appeal, learned counsel for the appellant has argued that the suit in respect of the entire property was cognizable by the civil Court, inasmuch as the main relief claimed by the plaintiff was the one relating to the issue of a perpetual injunction and the relief for settlement of account and for share in the profits was only an incidental relief. The contention put forward on behalf of the defendant-respondent was that the suit was, in effect a suit for profits by one co-sharer against another co-sharer, a suit of the nature contemplated by Section 231, U. P. Tenancy Act (xvii [17] of 1939) and as such it was barred from the cognizance of the civil Court in view of the provisions contained in Section 242 of the Act.

6. After reciting the circumstances in which the defendant was entrusted with the management of the property, the plaintiff had stated in the plaint that, in spite of repeated demands, the defendant had neither rendered any account of income from the property, or of the produce of the sir land, nor had he paid the same to him, that he had cancelled the arrangement but the defendant was still making realizations from the property without any right and that all the accounts were with the defendant who had failed to render accounts. These were the facts which constituted the cause of action for the suit. The main relief which the plaintiff claimed was the relief for settlement of account and for his share of profits realized by the defendant. In order to succeed in the case the plaintiff had to establish that the defendant made collections in pursuance of the arrangement set up by him and he was entitled to the amount that might be found due to him on accounting; and then the question of restraining the defendant from making collections in future would have arisen. We are, therefore, inclined to think that the relief of injunction,which the plaintiff had claimed, was not the main relief and it was only a subsidiary relief.

7. The learned counsel for the appellant has contended that Section 242 of the Tenancy Act, 1939, has no application to the facts of the present case. The said section corresponds to Section 230, Agra Tenancy Act (III [3] of 1926) with this difference that in the latter the words used were 'adequate relief' while in the former the word 'adequate' does not find place. It may however, be noted that by a subsequent amendment the word 'any' has been added before the word 'relief' in Section 242 aforesaid. The appellant's counsel has relied upon Parmeshwari Das v. Angan Lal, 1944 ALL. L. J. 67. There at p. 69 the learned Judges observed:

'......' the fact that the word 'adequate' whichpreviously existed in the section and does not find place in the new section does not make any real difference on the question of the interpretation of the section. Even now the section excludes only those suits based on a cause of action in respect of which relief could be obtained by mains of any such suit in the revenue Court, and though the word 'relief may not mean the entire relief at the same time it does not mean insignificant relief and the natural meaning of the word 'relief as occurring in the section is that it must be either the relief which the plaintiff claims or a substantial portion of it.'

8. The omission of the word 'adequate' from Section 242 of Act (XVII [17] of 1839) goes to show that the intention of the Legislature was to exclude from the cognizance of a civil Court every suit based on a cause of action, in respect of which any relief could be obtained in a revenue Court. There is no reason to think that, even after the omission of the word 'adequate', any question about 'insignificant' or 'substantial' relief arises. If the Legislature had any such distinction in mind, it must have made it clear by using some other word in place of 'adequate'. On the other hand, we find that the Legislature has now added the word 'any' in place of 'adequate', which makes the intention of the Legislature perfectly clear.

9. We find that the view taken in Parmeshwari Das's case (1944 ALL. L. J. 67) did not appeal to the learned Judges who decided the Full Bench case of D.N. Rege v. Mohd. Haider, 1946 ALL. L. J. 369. At p. 371 they observed :

'Section 242 of the Act of 1939 is in much the same terms as Section 230 of the Act of 1926, but it is to be noticed that the word 'adequate' has been omitted before the word 'relief so that a plaintiff cannot now institute a suit in the civil Court if he can obtain relief in the revenue Court. It is immaterial whether the relief is adequate.'

10. We are, therefore, of opinion that Section 242 of the Tenancy Act, 1939, is applicable to the facts of the present case; and that the decision of the trial Court is correct.

11. In the view which we took on the question of jurisdiction, no other point was pressed on behalf of the appellant.

12. We, therefore, see no force in this appeal and dismiss it with costs.


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