Sulaiman and Kanhaiya Lal, JJ.
1. This is a plaintiff's appeal under the Letters Patent from a decree of a learned Judge of this Court setting aside the decree of the lower appellate court and dismissing the suit in toto.
2. The plaintiff's allegations were that the plots in suit were the tenancies of one Ghisa deceased. The plaintiff alleged himself to be an heir of Ghisa and as having been in joint cultivation with him over these plots. It was stated that on the 4th of February, 1919, the lambardar had recognized the plaintiff as the tenant of these plots and had indeed attested this fact before the kanungo; that the plaintiff was in possession of these fields by cultivation in the year 1326 Fash, that in kharif 1327 Fasli he actually sowed some crops, but that in March, 1920, the defendants wrongfully dispossessed the plaintiff by cutting the standing crops. It is necessary to enumerate the reliefs which were claimed by the plaintiff in his plaint. They are as follows:
(1) Rs. 100 as the value of the crops illegally cut by the defendants.
(2) Ejectment of the defendants and a decree for possession in favour of the plaintiff.
(3) A perpetual injunction restraining the defendants from ever interfering in future with the plaintiff's possession of the plots in dispute.
3. The defendant, Sita Ram, pleaded that he was holding the plots under a registered kabuliat, dated the 13th of February, 1919, and that the plaintiff had no right to maintain the suit against him. It was also pleaded that the civil court had no jurisdiction to entertain this claim, which was exclusively cognizable by the revenue court.
4. The court of first instance came to the conclusion that the suit should have been filed in the revenue court and ordered that the plaint be returned for presentation to the proper court. An appeal was preferred to the District Judge, who came to the conclusion that the suit had been rightly instituted in the civil court. Instead of, however, remanding the case for disposal on the merits, he proceeded under Sections 196 and 197 of the Tenancy Act and ultimately passed a decree for Rs. 80 as damages, for possession of the plots and for an. injunction , against the defendants from interference in future with the plaintiff's possession.
5. The defendants preferred an. appeal to this Court which has been allowed. We may note that before the learned Judge it was never urged that no appeal lay to him. The learned Judge's attention was not drawn to this question and naturally there is no adjudication on this point. The point also is not quite a clear one. This being a Letters Patent Appeal, we have refused the point to be raised for the first time under the Letters Patent.
6. We must, therefore, assume that the learned District Judge had passed a decree which was duly appealed against to this Court.
7. The learned Judge of this Court, after doubting whether the District Judge was right in holding that the suit was cognizable by the civil court, has gone on to remark that he does 'not however intend to decide this case on the point of jurisdiction', i.e., he has assumed that the suit had been rightly instituted in the civil court and the learned District Judge was properly seised of the appeal and was fully justified in disposing of it on the merits.
8. We may note here that, in our opinion, there can be no doubt that the plaint as drafted and the claim as brought could only have been brought in the civil court. It is apparent that no perpetual injunction could ever have been granted by the revenue court. It is clear also that the claim was one for damages against a trespasser and for the recovery of possession against him and that the landlord was not made a party to these proceedings. The suit really was, at the very best, one between the rival claimants and should have been disposed of by the civil court. The learned Judge, however, has dismissed the suit on the following ground. The plaintiff claims to hold this land under an oral agreement of tenancy whereas the defendants relied upon a registered lease executed by the zamindars. On the date when the suit was instituted, the plaintiff admittedly was out of possession and had in the previous month been forcibly dispossessed by the defendants. The learned Judge, therefore, thought that in a case of this kind the plaintiff had failed to prove that he had a better title than the defendant, and that, therefore, the plaintiff could not be given a decree for possession. The learned Judge further thought that it followed from that conclusion that the plaintiff could not even get a decree for damages for the crops which he had sown and which had been wrongfully cut by the defendants.
9. It is impossible for the civil court to determine the exact nature of the tenancy, but it cannot be disputed that when the plaintiff was put in possession of the plots by the lambardar who collected rents from him, he became at the very least a non-occupancy tenant. A non-occupancy tenant is entitled to hold on and sow crops so long as he is not duly ejected. Up to March, 1920, the plaintiff was in occupation of the plots and had actually sown crops in the field No. 3404. The learned District Judge has found distinctly that the crops which had been cut by the defendants were the crops belonging to the plaintiff, which he himself had sown. He has also found that even subsequent to the registered lease of the 13th of February, 1919, granted in favour of the defendant No. 1, the lambardar had received rents from the plaintiff on account of the plots in question. It is, therefore, clear that in March, 1920, the plaintiff certainly had a right to retain possession of the plots until he was duly ejected by the landlord. A revenue court could not have entertained a suit for ejectment with effect from March, 1920. Such a suit could, under Section 60 of the Agra Tenancy Act, have been filed only between the 30th of June and the 1st of October following. The plaintiff, however, was forcibly dispossessed by the defendants in the middle of the agricultural year at a time when the plaintiff's crops were standing. Had the plaintiff's dispossession been effected by the landlord himself, the question as to whether the plaintiff should be restored possession or not under the proviso to Section 79 would then have arisen. As matters stand, however, the landlord did not give possession to the defendants and the plaintiff was not dispossessed by the landlord but by the defendants. It is the defendants who cut away the crops and who apparently have appropriated these crops and it is against the defendants that the plaintiff seeks relief. It is, therefore, difficult to hold tinder the circumstances of this case that the dispossession complained of was a dispossession by the lambardar.
10. Our attention has been drawn by the learned Counsel for the defendants to three cases of this Court and it has been contended that inasmuch as the defendants were claiming title under a registered lease granted by the zamindar the dispossession by them must be deemed to have been the dispossession by the landlord. The first case relied upon is that of Ram Lal v. Chunni Lal (1904) 2 A.L.J. 69. It will be noticed, however, that in that case, although the heir of the original tenant had got her name recorded yet neither she nor her sub-tenants who claimed under her had ever been in actual possession of the holding.
11. In the same way, in the case of Sokhai v. Ram Pershad (1910) 7 Indian Cases 486 it was the landlord who had let out the land in the occupation of a tenant to a third party. The learned Judge understood the finding of the lower appellate court to be that if the plaintiff was ever in possession, he was dispossessed by the landholder who thereafter let the land to the defendant.
12. Similarly in the case of Balbhaddar Chaube v. Somaru Rai (1915) 13 A.L.J. 295, a learned Judge of this Court had distinctly held that in that case the dispossession of the plaintiff was a dispossession by the zamindar, which was manifest from the fact that in the plaint it was stated that the zamindar brought suits for rent against some tenants holding the plots in question and obtained decrees and that the plaintiff himself regarded this as amounting to his dispossession. Furthermore, in that case, the relief claimed by the plaintiff was not only against the principal defendant but also against the zamindars who were impleaded.
13. It will, therefore, be apparent that in all the three cases the zamindar had been understood to have actually dispossessed the occupying tenant and then let the land to a third person. In the present case, on the other hand, the learned District Judge was of opinion that in spite of the registered lease granted to the defendants, the lambardar acknowledged the plaintiff as the tenant, and in fact realized the rents from him. It is also clear that it was not till more than a year after that registered lease that the defendants purported to take possession of the field and that they tried to do this in the middle of the agricultural year at a time when the plaintiff's crops were standing. The defendants must be deemed to have, therefore, forcibly taken possession of the plots, and the dispossession of the plaintiff cannot be deemed to be an ejectment by the zamindars. The zamindars are not made parties to the suit and the defendants are merely trespassers. Even the learned Judge of this Court, at the end of his judgment, remarked that the arguments before him proceeded on the basis that this was a purely civil suit properly instituted in the civil court. Under the circumstances the principle underlying the cases referred to cannot apply to this case. Treating the suit as a suit against trespassers, it is apparent that the suit was maintainable. We may also note that the suit was instituted within six months of the plaintiff's dispossession and, furthermore, the matter went up in appeal before the learned District Judge, who, having all the materials on the record, proceeded under Sections 196 and 197 to dispose of the matter finally. Under the circumstances, the question as to which was the proper forum for the suit, has lost its importance. The case must, therefore, be disposed of on its actual merits.
14. It has been contended on behalf of the defendant that the plaintiff had no right to retain an absolute possession of these plots and that in view of the provisions of Section 50 of the Indian Registration Act, the registered lease, though subsequent to the oral lease, must have priority. It is urged that at the time when the suit was brought, the plaintiff was not in possession, and that inasmuch as the registered document has priority over all unregistered documents, the plaintiff has not a better title, and, therefore, his claim for possession must be dismissed.
15. We are unable to accede to this contention. In the first place, Section 50 of the Indian Registration Act (XVI of 1908) does not apply to leases exempted under the proviso to Sub-section (1) of Section 17 of that Act. A reference to the notification published in the United Provinces Gazette, dated the 3rd of December, 1885, shows that agricultural leases have been exempted from the operation of Section 17. It would follow, therefore, that Section 50 also would be inapplicable to such agricultural leases. The lease in favour of the defendants is not a lease of proprietary interest but is a mere agricultural lease though it purports to be in perpetuity. Furthermore, on the date when the defendants took possession of the field, they knew that the plaintiff was in possession and that his crops were actually standing on the land. They, therefore, had clear notice of the plaintiff's oral tenancy, if not of the fact that it had been attested before the kanungo. Under all these circumstances it is impossible to hold that the registered document superseded the tenancy of the plaintiff. The plaintiff, even if he was a mere non-occupancy tenant, at any rate, had a right to remain in possession till duly evicted. The mere fact that a registered document was executed in favour of the defendants did not ipso facto put an end to his tenancy or extinguish his right. We are, therefore, of opinion that on the date of dispossession, i.e. March, 1920, he had a right to remain in possession and the defendants had no right to take forcible possession of his lands. The plaintiff accordingly would be entitled to be restored to possession as against the defendants. The learned Counsel for the defendants respondents has, as a last resort, contended that the plaintiff being at best a mere non-occupancy tenant, had no right to be restored to possession in view of the provisions of Section 79 of the Agra Tenancy Act. When we have held that this is not a case of dispossession by the landlord bat of a dispossession by trespassers, Section 79 of the Agra Tenancy Act does not apply. In any view of the matter the plaintiff would be entitled to a decree for compensation for the crops forcibly cut away by the defendants.
16. As regards the relief for injunction, we are of opinion that this should not be granted in the absolute terms asked for. It is clear that the defendants hold a registered lease from the zamindar and he may have the right to get the plaintiff ejected in the ordinary way from the holding and to put the defendants in possession. A perpetual injunction, therefore, is out of the question.
17. We accordingly allow this appeal, and, setting aside the decree of the learned Judge of this Court, modify the decree of the learned District Judge by directing that the decree for possession and for injunction will hold good till such time as the plaintiff is ejected in due course of law. The rest of the decree of the District Judge will stand confirmed. The plaintiff will get his costs here and hitherto from the defendants including costs in this Court.