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Param Hansman Tewari and anr. Vs. Dasrathman Tewari and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All128; 60Ind.Cas.770
AppellantParam Hansman Tewari and anr.
RespondentDasrathman Tewari and anr.
Cases ReferredRameshar Singh v. Madho Lal
Excerpt:
.....sections, 4, 58, 63 -jurisdiction of civil and revenue courts--suit for possession of pasture land, nature of--ejectment--revenue court, jurisdiction of. - - they alleged that the defendants bad the use of this plot of land for many years by grazing their tattle over it, and outing the tall grass if they saw fit to do so. justice chamier, proceeded upon a very peculiar and unusual state of fact and we very much doubt whether it could be applied to a case like the present, where the defendants are in the enjoyment for grazing purposes of a specified and limited plot of land. we do not say that the question is altogether free from difficulty, but both the weight of authority in this court and our own opinion as to the correct interpretation of section 5s and of the definitions in..........court. various points have been taken and arguad with mush keenness. it is contended that the land in suit is in fast held by the defendants for agricultural purposes within the meaning of section 4 clause (2) of the lacal tenancy act, ii of 1901, further, that whether this be so or not, the defendants have been paying rent on as can of rights of pasturage within the meaning of the definition of the word rent ' in clause (3) of the same section, and are, therefore tenants' within the meaning of clause (5). from this it is further argued that, if the defendants be held to be tenants upon this basic, they can only be non-company tenant?, and are, therefore, liable to ejeatment, if at all, by means of a suit brought under section 63 of the aforesaid tenancy act, read with section 58,.....
Judgment:

1. This suit was brought in the Court of the Munsif of Deoria. The plaintiffs claimed, between them, to. be the holders of the proprietary rights in respect of a particular plot of land 16 his was in area. They said that this land had never been brought under cultivation, but grew from year to year a crop of tall grass known locally as krar. They alleged that the defendants bad the use of this plot of land for many years by grazing their tattle over it, and outing the tall grass if they saw fit to do so. They claimed that the defendants enjoyment of this land gave them no status higher than that of a licensee, although they admitted that rent was annually paid by the defend ants. Bringing the suit, therefore, in the civil Court, they claimed a decree for possession and arrears of rent for three years at the rate of Rs. 5 a year. The defendants pleaded that the suit as brought was not cognizable by the Civil Court, but should have been brought as a suit for the ejectment of a non occupancy tenant in the Court of an Assistant Collector. They raised other pleadings upon which issues were framed regarding the length and nature of the defendants possession, the amount of the rent and the necessity or otherwise for the issue of notice by the plaintiffs to the defendants prior to the institution of a suit for ejectment. The Court of first instance found in favour of the plaintiffs on every point, aspect as regards the amount of the rent, and passed a degree in their favour for possession over the land by eject me of the defendants and for three years rent at the rate of Rs. 1 a year. In appeal the Additional Subordinate Judge has held that the claim for arrears of rent was not maintainable in the Civil Court, but that the claim for possession by ejectment of the defendants was so maintainable, and had been rightly decreed. He amended the decree of the first Court accordingly. The appeal before us is against the decision of the lower Appellate Court. Various points have been taken and arguad with mush keenness. It is contended that the land in suit is in fast held by the defendants for agricultural purposes within the meaning of Section 4 Clause (2) of the Lacal Tenancy Act, II of 1901, Further, that whether this be so or not, the defendants have been paying rent on as can of rights of pasturage within the meaning of the definition of the word rent ' in Clause (3) of the same section, and are, therefore tenants' within the meaning of Clause (5). From this it is further argued that, if the defendants be held to be tenants upon this basic, they can only be non-company tenant?, and are, therefore, liable to ejeatment, if at all, by means of a suit brought under Section 63 of the aforesaid Tenancy Act, read with Section 58, of the same. If the suit is one which should have been brought in the court of an Assistant Collector the cognizance of the Civil Court is barred by Section 167 of the same Tanancy Act. A further point has been taken that the position of the defendants is in any aase not that of mere licensees, that they have a desacriptive right to the enjoyment of this land which cannot be revoked at the will and plea3ure of the plaintiffs and that, if the suit is treated as one cognizable by the Civil Court, then it is a suit against lessees, so that notice was necessary under the appropriate provisions of the Transfer of Property Act. IV of 1882. This case has been referred to a Bench of two Judges because of a first of authority in this Court on the Question of the definition of agricultural land and as to the effect of Sections 58 and 63 of the Local Tenancy Act. The authority of Mr. Justice Chanuer in Abdul Goytm v. Fida Mutain 30 Ind. Cas. 550 : 13 A.L.J. 854 is quoted for the proposition that a suit against a tenant of grazing land or in respect of ejectment from land solely used for the purposes of pasturage is not entertain able by the Revenue Court. This decision is based on an older decision by the learned Judge, which was not called in question before him in Abdul Qayum v. Fida Husain 30 Ind. Cas. 550 L 13 A.L.J. 854, and that again purports to follow a reported case of the Board of Revenue. Mr. Justice chamier obviously read Section 51 of the Tenancy Act as if the words ' from his holding ' were to be understood after the word 'ejectment' from the previous section. He says, in the case in which he first dealt with this question, that both Sections 57 and 58 obviously refer to ejectment from a holding. There is clear authority of this Court to the contrary in the decision of a Bench of two Judges as Ramethar Singh v. Madho Lal 52 Ind. Cas. 191 : 17 A.L.J. 971 : 42 A. 36 According to the practice of this Court, the decision of a Bench of two Judges should be followed rather than that of a single Judge, if there appears to be corflict between them. We agree, moreover, with the reasoning of Mr. Justice Ryvas in Rameshar Singh v. Madho Lal52 Ind. Cas. 191 : 17 A.L.J. 971 : 42 A. 36. One thing seems to be put quite beyond question by the wording of the definitions of the words land' and ' tenant ' in Section 4 of the Local Tenancy Act, II of 1901, and this is, that a man may be a ' tenant', subJ8ot to the provisions of that Act, without being the tenant of a ' holding'. It seems clear, therefore, that we ought not to import into Section 58 of the Tenancy Act any reference to a ' holding' from the previous section. On the general principles governing the interpretation of Statute, the more correct view would seem to be that the omission of all reference to a ' holding ' in Section 58 was intentional, and was due to the fact that the framers of the Act recognizad the point to which we have already called attention, namely, that a non-occupancy tenant need not necessarily be the tenant of a holding. The decision of the Board of Revenue, which weighed with Mr. Justice Chamier, proceeded upon a very peculiar and unusual state of fact and we very much doubt whether it could be applied to a case like the present, where the defendants are in the enjoyment for grazing purposes of a specified and limited plot of land. It is clear, moreover, from the recital of the facts in the judgment of Mr. Justine Ryves in the or se of Rameshar Singh v. Madho Lal 52 Ind. Cas. 191 : 17 A.L.J. 971 : 42 A. 36 that the Board of Revenue is quite prepared to entertain a suit in ejectment against a tenant who is such only by reason of his enjoying a right of pasturage in respect of a particular area. We do not say that the question is altogether free from difficulty, but both the weight of authority in this Court and our own opinion as to the correct interpretation of Section 5S and of the definitions in Section 4 of Local Act, II of 1901, are clearly in favour of the appellants. On this ground alone the order of the lower Appellate Court should be set aside. It seems, in any case, a wholly anomalous and undesirable result that the plaintiffs should be referred to one Tribunal for the decision of a claim to rent in respect of this land and to a different Tribunal in respect of their claim to possession over this land We, therefore, allow this appeal and set aside the decisions of both the Courts below and, giving effect to the objection of the defendants on the question of jurisdiction, substitute for the decree of the first Court an order returning the plaint for presentation to a Court having jurisdiction, namely, the Court of an Assistant Collector. The appellants are entitled to their costs of this litigation.


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