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Sukhdeo and anr. Vs. Basdeo and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All594; 157Ind.Cas.1013
AppellantSukhdeo and anr.
RespondentBasdeo and ors.
Cases ReferredSahadeo v. Budhai
Excerpt:
.....a tenant for declaration of his right' to a holding, but the suit contemplated by section 121 is suit for declaration of right, to a holding pure and simple, and not a suit in which the cause of action on which the suit is based entitles the plaintiff, apart from a declaration of his right to tenancy holdings, to other reliefs as well. 9. the scheme and the provisions of the agra tenancy act clearly indicate that the legislature intended to vest revenue courts alone with jurisdiction to decide all disputes concerning tenant cy holdings, but there is nothing in the act to imply that if some of the reliefs prayed for in a suit can only be granted by the civil court the jurisdiction of the civil court, is ousted by the mere fact that the reliefs for a declaration of right to a certain..........not capable of partition by the civil court; and (3) rendition of accounts of the profits of the joint family property and business and a decree for a moiety share in the same.2. the properties in dispute in the suit were immovable properties including zamindari, tenancy holdings and house property. we are not concerned in the present appeal with the movables and other properties in dispute in the suit. one shankar tcwari died leaving two sons sukhdeo and basdeo. basdeo and his sons were the plaintiffs in the suit and sukhdeo and his descendants were the principal defendants to the suit. the plaintiffs' case was that basdeo and sukhdeo and their descendants continued to live as members of a joint hindu family till the date of the suit and that sukhdeo was the manager of the family. the.....
Judgment:

1. This is a defendants appeal and arises out of a suit for: (1) partition of the plaintiffs' moiety share in the property given at the foot of the plaint; (2) a declaration of the plaintiffs' title to a moiety s'hare respecting' the property not capable of partition by the Civil Court; and (3) rendition of accounts of the profits of the joint family property and business and a decree for a moiety share in the same.

2. The properties in dispute in the suit were immovable properties including zamindari, tenancy holdings and house property. We are not concerned in the present appeal with the movables and other properties in dispute in the suit. One Shankar Tcwari died leaving two sons Sukhdeo and Basdeo. Basdeo and his sons were the plaintiffs in the suit and Sukhdeo and his descendants were the principal defendants to the suit. The plaintiffs' case was that Basdeo and Sukhdeo and their descendants continued to live as members of a joint Hindu family till the date of the suit and that Sukhdeo was the manager of the family. The plaintiffs alleged that all the properties detailed at the foot of the plaint; were joint family properties and the share of the plaintiffs in the same was to the extent of half. They charged Sukhdeo with misappropriation of the profits and assets of the joint family and maintained that he was liable to account with respect to the family assets.

3. The defendants resisted the suit mainly on the allegation that separation between the plaintiffs and the defendants took place about 10 years before the date of the suit and that after separation Basdeo and Sukhdeo acquired properties separately, and the allegation of the plaintiffs that all the properties mentioned in the plaint were joint family properties was untrue. They denied the allegation of the plaintiffs that Sukhdeo was the manager of the alleged joint family and maintained that after the death of Shankair Tewari Basdeo plaintiff continued to be the manager of the family till the partition took place between the branches of Basdeo and Sukhdeo. They repudiated the charge of misapprogriation levelled by the plaintiffs against Sukhdeo and contended that, even if the family be found to be joint and Sukhdeo be held to be the manager, he is not legally liable to be called upon to render accounts. The defendants further contended that the plaintiffs' claim for partition of the fixed rate holdings, occupancy holdings, etc., was not cognizable by the Civil Court and most of the argument addressed in this appeal has centred round this plea.

4. The trial Court held that the family of the parties was joint till the date of the suit and all the properties out of the properties detailed in the plaint which were proved to be in existence were joint family properties. It further held that as the family was joint the plaintiffs were not entitled to a decree' for rendition of accounts against Sukhdeo. At the trial the plaintiffs abandoned their claim for partition of the fixed rate and occupancy holdings and prayed only for declaration that those holdings were the property of the joint family and the plaintiffs' share in the same was to the extent of half, and the Court below held that it had jurisdiction to grant that relief to the plaintiffs. In view of the findings noted above the Court below, while dismissing the plaintiffs' suit for rendition of accounts, passed a decree in the plaintiffs' favour declaring that the plaintiffs' share in the immovable properties including the holdings was to the extent of half and directed partition of the moveables, debts etc.

5. In appeal before us no exception has been taken to the findings on the questions of fact recorded by the Court below and the sole point raised on, behalf of the defendant-appellants is that the Court below had no jurisdiction to grant a decree for the declaration of the plaintiffs' right in the fixed rate and occupancy holdings. In support of this contention reliance has been placed on Sections 121 and 230, Agra Tenancy Act, (3 of 1926), and the decisions of this Court, in Sahdeo v. Budhai 1929 All. 571, Bunni Pandey v. Brahmdeo Paney 1931 All. 735 and Bhagwan Sahai v. Ram Chander 1932 All. 693. It is provided by Section 121 that at any time during the continuance of a tenancy the tenant of a holding may sue the landholder, or any person claiming to hold through the landholder, whether as tenant or rent free grantee or otherwise, for a declaration of his right as tenant, and by Section 230 all Courts other than revenue Courts are precluded, except by way of appeal or revision, from taking cognizance of all suits and applications of the nature specified in the fourth schedule of the Act:

or of any suit or application based on a cause of action in respect of which adequate relief could be obtained by means of such suit or application.

6. The provisions of S.230 are mandatory and the jurisdiction of the Civil Court from taking cognizance of suits or applications specified in the fourth schedule of the Act or based on a cause of action in respect of which adequate relief could be obtained by means of any such suit or application is absolutely barred. A suit for a, declaration of plaintiff's right as tenant under Section 121 of the Act, is specified at serial No. 14 of group B of the fourth schedule of the Act. It is clear therefore that since the passing of the Agra Tenancy Act (3 of 1926), such a suit cannot be entertained by the Civil. Court. Prior to the passing of the present Tenancy Act, suits between rival claimants to a tenancy were, according to the rulings of this Court, cognizable by the Civil Court, but the legislature has, by the clearest possible provisions in the present Act, ousted the jurisdiction of the Civil Court with respect to such suits, and the Revenue Court, and the Revenue Court alone is competent to entertain and try such suits. This is the view that has bee n taken in the three decisions of this Court noted above and it has been held in the Full Bench decision in Sahadeo v. Budhai 1929 All. 571, that a person who claims to be a tenant must be deemed table 'claiming to hold through the landholder' within the meaning of Section 121 of the Act, irrespective of the fact that he does not set up a case of a special grant or a special contract with the landholder as the basis of his claim. It must therefore be taken as settled law so far as this case is cancarned that a suit by a plaintiff for a declaration that he is either the sole tenant or joint tenant with the defendant of holding is within the exclusive jurisdiction of the Revenue Courts.

7. The question however remains whether the Civil Court, has jurisdiction to entertain a suit which is based on a cause of action that entitles the plaintiff not only to a mere declaration of his right to certain tenancy holdings but also to other reliefs which cannot be granted by the revenue Courts, and if the Civil Court, has jurisdiction to take cognizance of such a suit, is that, Court competent, while granting to the plaintiff the other reliefs, to grant him a decree for the declaration of his right to the holdings.

8. It cannot be disputed that Civil Courts have exclusive jurisdiction to try all suits of civil nature unless their cognizance is either expressly or impliedly barred (vide Section 9, Civil P.C.). It is also clear that, a suit is of a civil nature if the principal question in the suit relates to a civil right. The reason for the rule that. Civil Courts are ordinarily to decide disputes concerning civil rights is not far to seek. The determination of disputed questions of right involves adjudication of complicated questions of fact and law and it is inexpedient to leave the decision of such questions in the hands of Courts presided over by officers who have had no legal training or practice. Section 121 read with Section 230, Agra Tenancy Act, no doubt bars the jurisdiction of the Civil Court as regards 'suit by a tenant for declaration of his right' to a holding, but the suit contemplated by Section 121 is suit for declaration of right, to a holding pure and simple, and not a suit in which the cause of action on which the suit is based entitles the plaintiff, apart from a declaration of his right to tenancy holdings, to other reliefs as well. There is no provision in the Tenancy Act that expressly ousts the jurisdiction of the Civil Court with respect to such suits. The only question that remains for consideration therefore is whether the jurisdiction of Civil Courts with respect to such suits is impliedly barred by that Act. In our judgment the answer to the question must be in the negative.

9. The scheme and the provisions of the Agra Tenancy Act clearly indicate that the legislature intended to vest revenue Courts alone with jurisdiction to decide all disputes concerning tenant cy holdings, but there is nothing in the Act to imply that if some of the reliefs prayed for in a suit can only be granted by the Civil Court the jurisdiction of the Civil Court, is ousted by the mere fact that the reliefs for a declaration of right to a certain holding is coupled with the other reliefs. Nor is there anything in the Act to show that if the cause of action entitles the plaintiff, over and above to a declaration of his right, to a holding, to certain other reliefs, for instance, declaration of his right to zamindari property, the plaintiff must split his cause of action in two parts and sue for a declaration of his right to the holding in the revenue Court, and claim redress with respect to the zamindari property from the Civil Court. To hold otherwise would be to ignore the words:

based on a cause of action in respect of which adequate relief could be obtained by means of any such suit or application,

used in Section 230 of the Act,

10. That the legislature could not have contemplated the splitting of a cause of action, and the institution of two separate suits, one in the civil and one in the revenue Court, by a plaintiff when the reliefs prayed for in the two suits are based on identical set of facts, is demonstrated by the fact that such a course would be highly inconvenient and might lead to anomalous results. The institution of two such suits would involve both the plaintiff and the defendant, in the unnecessary expenditure of adducing the same evidence in two different. Courts and would manifestly lead to waste of public time. Apart from this there would be the risk of contradictory decisions on the same set of facts being arrived at by the civil and the revenue Courts. In the absence of a specific provision in the statute countenancing such a deplorable state of affairs a Court is not justified in crediting the legislature with such an intention. We therefore hold that a suit that is based on a cause of action with respect to which adequate relief can be granted by the Civil Court is cognizable by that. Court notwithstanding the fact that one of the reliefs prayed for by the plaintiff is for the declaration of his right to a tenancy holding. It is needless to observe that if a plaintiff simply with a view to oust the jurisdiction of the revenue Court prays for reliefs other than a relief for a declaration of his right to a holding, and it is found that he is not entitled to the other reliefs, his suit will fail on the ground that the only relief to which he was entitled could be granted to him by the revenue Court.

11. In the suit before us the plaintiffs alleged and proved that they were members of a joint Hindu family with the defendants and were as such entitled to a declaration of their night as to zamindari properties and tenancy holdings owned by the family, and for partition of the moveables and cash belonging to the family. The cause of action on which the suit, was based was therefore one with respect: to which adequate relief could not be granted by the revenue Court and the suit was rightly entertained by the Court below. The appeal must therefore be dismissed.

12. A cross-objection has been filed by the plaintiffs as regards the refusal by the Court below to order Sukhdeo to render account of his dealings with the family property. It is settled law that in the absence of proof of misappropriation or fraudulent or improper conversion by the manager of a joint family a coparcener seeking partition is not entitled to call upon the manager to account for his part dealings with the family property. The coparcener is entitled only to an account of the joint family property as it exists on the date he demands partition. In the present case there was no reliable evidence to prove the charge of misappropriation of fraudulent conversion of the family property by Sukhdeo. The Court below was therefore right in dismissing the claim for rendition of accounts. The cross-objection must also fail. The result is that we dismiss both the appeal and the cross-objection with costs.


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