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Bechu Sahu Vs. Natstd Ram Das - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in24Ind.Cas.700
AppellantBechu Sahu
RespondentNatstd Ram Das
Cases ReferredRam Charan Ram v. Sheoraj
Excerpt:
agra tenancy act (ii of 1901), sections 196, 197 - juridiction--ejectment suit--lessor and lessee--agricultural tenancy, determination of. - - the learned munsif, although he framed an issue as to whether or not the suit as brought was cognizable by a civil court, did not try this issue first, but went into other issues dealing with the merits of the case as well......tenancy act (local act ii of 1901) in order to secure a decision of the suit on the merits the learned district judge has pointed out that there are conflicting decisions of this court on the question of law involved. he has himself preferred to follow the view taken by a single judge of this court in ram charan ram v. sheoraj 3 a.l.j. 226. according to the law as there laid down section 196 of the tenancy act only applies to a case which was instituted in the wrong court but no appeal comes before the court to which an appeal would have lain if the suit had been rightly instituted in the prescribed court. the leading case on the other side is that of badam singh v. musammat sabta knar 2 a.l.j. 119. it has been pressed on me in argument that, this being a case decided by a bench of.....
Judgment:

Piggott, J.

1. This is a plaintiff's appeal in a suit for ejectment. The land in question consists of two fields forming part of a fixed-rate holding. According to the plaintiff these fields, along with others, were mortgaged to him with possession in the year 1894 and again in the year 1896. In the month of June 1909 the defendant entered into a contract of tenancy with the plaintiff, by which he agreed to occupy these two field as sub-tenant of the plaintiff at an annual rent of Rs. 15. He never paid any rent, and in the month of November 1911 denied ,the existence of any tenancy and denied the plaintiff's title. On this the plaintiff brought the present suit, for ejectment as against a trespasser, in a Civil Court. The defence on the merits was a curious one and involved questions which need not be discussed here. The learned Munsif, although he framed an issue as to whether or not the suit as brought was cognizable by a Civil Court, did not try this issue first, but went into other issues dealing with the merits of the case as well. He definitely found that there had been no contract of tenancy between the parties. Returning, however, to the question of law he held that, on the suit as framed, the plaintiff was not entitled to claim the ejectment of the defendant as a trespasser but should have proceeded against him as a tenant in the Revenue Courts. The first point raised before me now in second appeal is whether this decision is correct. According to the plaintiff there was originally a tenancy in respect of this land, and the defendant occupied the same as a tenant. Before he, the plaintiff, can claim to treat the defendant as a trespasser, he must show that something has occurred which in law put an end to the tenancy. There is nothing in the Tenancy Act which suggests that a tenant puts an end to the tenancy by denying the title of his lessor. If we turn for guidance to the general principles regarding the law of lessor and lessee in Chapter V of the Transfer of Property Act, IV of 1882, we find that by Clause (g) of Section 111 a lease is not terminated merely by the lessee renouncing his character as such, by setting up a title in a third person, or by claiming title in himself. There mast be in addition some act on the part of the lessor showing his intention to determine the lease. These sections of the Transfer of Property Act are not applicable as such to agricultural leases. But they may be consulted, with regard to the general principles of law therein laid down. Now in the case of an agricultural tenancy there is only one way in which the less or can determine the lease, and that is by taking proceedings to eject the lessee or tenant under the provisions of the Tenancy Act. It follows to my mind that the Courts below were right, and that on the allegations put forward in the plaint the plaintiff was not entitled to treat the defendant as a trespasser, or to ask for his ejectment as such by order of the Civil Court. If the fact be that he has elected to come into Court, falsely alleging a tenancy which never existed, ho did so in order to strengthen his own case on the merits and he must take the consequences.

2. There remains one more point to be considered the decree of the Munsif of Mirzapur dismissing the plaintiff's suit on the ground of want of jurisdiction was appealed to the District Judge. In that Court it was contended that, apart from the correctness or otherwise of the decision of the first Court on the question of jurisdiction, the District Judge had power to act under Sections 196 and 197 of the Agra Tenancy Act (Local Act II of 1901) in order to secure a decision of the suit on the merits the learned District Judge has pointed out that there are conflicting decisions of this Court on the question of law involved. He has himself preferred to follow the view taken by a single Judge of this Court in Ram Charan Ram v. Sheoraj 3 A.L.J. 226. According to the law as there laid down Section 196 of the Tenancy Act only applies to a case which was instituted in the wrong Court but no appeal comes before the Court to which an appeal would have lain if the suit had been rightly instituted in the prescribed Court. The leading case on the other side is that of Badam Singh v. Musammat Sabta Knar 2 A.L.J. 119. It has been pressed on me in argument that, this being a case decided by a Bench of two Judges, 1 am bound to follow it. The case is so far distinguishable that it was one in which the lower Appellate Court had passed an order of remand and had come to the conclusion that the suit was in fact one cognizable by a Civil Court. The learned Judges who heard the appeal against this order of remand contented themselves with saying, in a very brief judgment, that they thought it unnecessary to try the question of jurisdiction, because the order of remind was one which could have been passed in any case under Section 197 of the Tenancy Act. It does not seem to me that the point was fully argued or considered in that case. No reference is made in the reported judgment either to the opening words of Section 196 or to the very ingenious reductio ad absurdum of the contrary view which the learned District Judge has noticed in his order in the case now before me. I feel bound to say that personally I entirely concur with the learned Judge who decided the case of Ram Charan Ram v. Sheoraj 3 A.L.J. 226. To my mind the opening words of Section 193 of the Tenancy Act, as they stand, obviously mean that the provisions of that section apply to suits in which an appeal lies in any event to the District Judge or High Court, whether they be instituted in the first instance in the Civil or in the Revenue Court. A contrary view leads to the absurdity pointed out in this case by the learned District Judge, who has professed to apply the provisions of Section 197 of the Tenancy Act to the present case, even while saying that in his opinion they should not be so applied. He then professes to regard this suit as if it had been instituted in the proper Court, namely as a suit for ejectment of a tenant in the Court of an Assistant Collector. Had the suit been so instituted, says the learned District Judge, no appeal would have lain to his Court, and he, therefore, felt bound to dismiss the appeal. The line of reasoning thus adopted does not impress me as sound in itself, but it is useful for the purpose to which I have put it, namely as reductio ad absurdum of the view that the opening words of Section 196 of the Tenancy Act can refer to any suits other than suits in which an appeal lies to the District Judge or High Court whatever may be the original form of institution. Under the circumstances I do not think I am necessarily bound to follow the decision in Badam Singh v. Musammat Sabta Kuar 2 A.L.J. 119. as to the correctness of which I entertain serious doubts. Relying on the authority of the learned Judge who decided the case of Ram Charan Ram v. Sheoraj 3 A.L.J. 226. and for the reasons which I have already given, I hold that the present case was one to which the provisions of Sections 193 and 197 of the Tenancy Act could not and ought not to have been applied. I, therefore, dismiss this appeal with costs including in this Court fees on the higher scale.


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