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Ram Gajadhar and ors. Vs. Musammat Surtani - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All343; 71Ind.Cas.381
AppellantRam Gajadhar and ors.
RespondentMusammat Surtani
Excerpt:
.....56 - subtenant, status of--ejectment--jurisdiction of civil and revenue courts--pleadings--second appeal--point of law. - - but clearly no cause of action has yet arisen under section 57 and, if it had, the civil court could not have ejected the defendant. this point was, it is true, not taken by the defendant in the trial court or in the first court of appeal and it is ordinarily a sound rule of law not to permit a point to be taken in a second appeal which has not been taken before, but in view of the fact that both the courts below have assumed a jurisdiction which, as far as i can see, they do not possess, and the fact that the defendant is a poverty-stricken woman who apparently is likely to starve if deprived of her small maintenance i consider myself justified, as an..........on the last occasion in 1920 the plaintiffs sued for her ejectment on the ground that she owed one year's rent. she replied that she had paid the rent but that she was ready to pay it again sooner than he ejected. when it came to the point the court refused to believe that she had paid the rent and ordered her ejectment. in appeal the learned district judge applied the provisions of section 114 of the transfer of property act. he omitted, however, to direct that the woman should pay interest on the sum tendered, probably overlooking that stipulation in the section in view of the ludicurously small amount that the interest would have been. she should technically have been ordered to pay rs. 5 percent, on rs. 2-4-0 for a period of about one year, something under two annas. he has.....
Judgment:

Stuart, J.

1. The facts of the suit out of which the present appeal arises are as follows: The plaintiffs are Brahmans. They apparently have an occupancy holding. The defendant appears to be a widow of their family to whom had been assigned 14 biswas of land (about half an acre) out of the occupancy holding on payment of a trifle as rent for her maintenance during her life. As far as I can gather, beyond this tiny plot she has no means of support. It appears to be the case that after having given this widowed woman this plot for her maintenance the plaintiffs have endeavoured on more than one occasion to oust her from it. They instituted a suit for her ejectment in the Rent Court. The Rent Court found that she could not be ejected under Section 58 of the Tenancy Act on the grounds that she did not hold as a tenant from year to year and that she did not hold under a lease the term of which had expired or was about to expire, or that she had refused to accept a lease. They then endavoured to eject her through the Civil Court. In the Civil Court a compromise was arrived at by which she was to continue in possession for the whole of her life provided she paid Rs. 2-4-0 a year. The woman appears to have been in arrears on more than one occasions. Suits were brought against her and then she paid. On the last occasion in 1920 the plaintiffs sued for her ejectment on the ground that she owed one year's rent. She replied that she had paid the rent but that she was ready to pay it again sooner than he ejected. When it came to the point the Court refused to believe that she had paid the rent and ordered her ejectment. In appeal the learned District Judge applied the provisions of Section 114 of the Transfer of Property Act. He omitted, however, to direct that the woman should pay interest on the sum tendered, probably overlooking that stipulation in the section in view of the ludicurously small amount that the interest would have been. She should technically have been ordered to pay Rs. 5 percent, on Rs. 2-4-0 for a period of about one year, something under two annas. He has accordingly upon her paying the rent into Court permitted her to remain in possession and against this the plaintiffs appeal demanding her ejectment. The ground of appeal taken is that Section 114 has no application in view of the provisions of Section 117. This contention appears to be a good one, but I have to point out that the suit appears to be bad ab initio. I may take it that the compromise in the Civil Court created a somewhat peculiar sub-tenancy. An occupancy-tenant under this compromise agreed to sub-let a portion of his holding for a fixed rent during the lifetime of the sub-tenant. The defendant is a tenant within the meaning of Section 56 of the Tenancy Act and she can only be ejected in accordance with the provisions of the Tenancy Act and not by a Civil Court. I do not say that the Revenue Court was wrong in refusing to eject her under Section 58. I think the Revenue Court was right. How then can she be ejected? Only, as far as I can see, if Section 57 has application, that is to say, if a decree for arrears of rent is outstanding against her, if she commits any act or omission detrimental to the land in the holding or inconsistent with the purpose for which it was let, or on the ground that she has broken a condition not inconsistent with the provisions of the Tenancy Act, and on breach of which she is, by special contract with the plaintiffs, liable to be ejected, or that she has sub-let or otherwise transferred the whole or any portion of the 14 biswas in contravention of the provisions of this Act. But clearly no cause of action has yet arisen under Section 57 and, if it had, the Civil Court could not have ejected the defendant. The appellants' Counsel objects that any sub-lease for over five years is null and void. It is certainly voidable at the option of the Zemindar, but the Zemindar has, as far as I can see, made no objection. This point was, it is true, not taken by the defendant in the Trial Court or in the First Court of Appeal and it is ordinarily a sound rule of law not to permit a point to be taken in a second appeal which has not been taken before, but in view of the fact that both the Courts below have assumed a jurisdiction which, as far as I can see, they do not possess, and the fact that the defendant is a poverty-stricken woman who apparently is likely to starve if deprived of her small maintenance I consider myself justified, as an exceptional case, in permitting a point of law to be taken in second appeal which goes to the root of the merits of the whole case. Finding that the Civil Courts had no jurisdiction in the matter I find that the suit was rightly dismissed and dismiss this appeal with costs.


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