1. This appeal raises a very difficult question of law in the conflict of jurisdiction between the Revenue and Civil Courts.
2. The plaintiff, Chait Ram, brought this suit in the Court of the Munsif of Kanauj on the following allegations:
(1) Plot No. 3404 was part of the occupancy holding of one Ghissa deceased. The plaintiff alleged himself to be Ghissa's first cousin, (that is, Ghissa's father's sister's son,) and he says, that during Ghissa's lifetime he was joint with him in cultivation and after Ghissa's death became the rightful owner and possessor of the entire agricultural holding. (2) Besides this, after the death of Ghissa, the plaintiff was recognized by all the Zemindars of the said cultivatory holding as its occupancy tenant, and Raghubar Dayal, the Lambardar of the village, testified to his being an occupancy tenant in the village papers before the officers concerned. (3) The plaintiff pays the rent of the holding in dispute to the Zemindars, and in this way also, has acquired occupancy rights in respect thereof. (4) The defendants in collusion with the Lambardar and others forcibly cut and appropriated in March 1920 the Rabi crop which the plaintiff had sown on this field, during his absence. It is further alleged that the defendants have no connection or concern of any kind either with the said cultivatory holding or with the said crop. In the 6th paragraph of the plaint it is stated that when the plaintiff returned and complained to the defendants about their wrongful acts the defendant No. 1 said that he was himself the tenant of the said holding under a lease.
3. This allegation is said to be quite false. It is denied that defendant No. 1 could get any rights under any lease and that the lease set up by him, had never been acted upon. The reliefs sought by the plaintiff are:
Firstly, Rs. 100, the value of the crop illegally cut by the defendants.
4. Secondly, that if the defendants assert their possession over the said plot then they may be ejected there from, and the plaintiff awarded absolute possession thereof and a decree for recovery of possession may be passed in his favour.
5. Thirdly, if the defendants denied the rights of the plaintiff as tenant with respect to this plot and of the holding in dispute, and if the plaintiff be found by the Court to be out of possession of the whole or any part of the holding in dispute, then he asked for possession thereof together with occupancy; rights and that the defendants be ejected there from and a decree for recovery of possession may be passed in his favour.
6. And lastly, a perpetual injunction restraining the defendants from ever interfering in future with the plaintiff's possession of the property specified below and from doing any act which may be likely to interfere with and prove prejudicial to his rights in respect to the said property.
7. The main plea for the defendants was that they were in possession of the plots in dispute under a registered lease dated 13th February 1919 and being admittedly in possession the suit is not cognizable by a Civil Court. 'Section 79 of the Tenancy Act is applicable.'
8. They also asserted that, as a matter of fact, they had sown the crop themselves and cut it as of right.
9. The learned Munsif after recording all the evidence tendered by the parties, came to the conclusion that the act of the defendants in taking possession of the field under the lease executed in their favour by the Zemindars, amounted to an act of dispossession by the Zemindar and as such the plaintiff's proper remedy was a suit in the Revenue Court under Section 79. He accordingly returned the plaint for presentation to the proper Court. The plaintiff appealed. The facts found on appeal are these: Ghissa died in the early part of 1918 without heirs. The plaintiff's assertion that he was entitled as heir to the occupancy holding or under Section 22 of the Tenancy Act was incorrect. But it was held that on the 4th February 1919 the Lambardar got it recorded in the khewat that he was the occupancy tenant in succession to Ghissa. He sowed the Kharif crop for 1919 and harvested it himself, sowed the Rabi crop at the end of that year, and it was this crop which the defendants cut and took away in March 1920. There is no finding that the fact of the Lambardar getting the plaintiff recorded in any village papers had the effect of making him the occupancy tenant in place of Ghissa deceased. But it was held that he was a tenant of some sort and was in legal possession of the field and that the Lambardar accepted rent from him. It was also held that, although it was proved that the permanent lease in favour of the defendant had been proved to have been executed by the Zemindars on the 13th of February 1919, the defendants had not entered into possession under this lease until March 1920, when they cut the crop which had been sown by the plaintiff. On the question of the jurisdiction of the Civil Court it was held, apparently, that as the lease given by the Zemindars was not given effect to for over a year, and in the meantime the Lambardar had accepted rent from the plaintiff, this acceptation of rent amounted in law to a revocation of the registered lease; and in any case that it could not be held that the action of the defendant in cutting the crop amounted to a dispossession of the plaintiff by the Zemindar within the meaning of certain, rulings which had been relied upon by the Trial Court because of the delay, which occurred between the execution of the lease and the possession taken by the defendants in spite of the plaintiff's own assertion that the defendants were acting in collusion with the Lambardar when they cut the crop. Without, however, coming to a very definite conclusion on this question of law, the Court held that under the provisions of Section 197(1) of the Agra Tenancy Act, as all the materials necessary for a decision were before it, it was bound to decide the points in issue regardless of whether the suit had been instituted in the right Court. Having come to the conclusions on the evidence which I have mentioned above, the Appellate Court gave the plaintiff a decree for Rs. 80, the value of the crop, and for possession of plot No. 3404, the holding of Ghissa deceased, and for an injunction against the defendants from interference in future, with full costs in both Courts.
10. The decree itself runs as follows:
The plaintiff's claim for recovery of possession of plot No. 3404...be decreed. Air injunction restraining the defendants from future interference in any way with the plaintiff's rights and interests in the aforesaid holding is issued to them.
11. From this decree the defendants have appealed. They have not contested the jurisdiction of the learned District Judge to entertain the suit but they have urged that the plaintiff having been found not to be the heir of the deceased occupancy tenant, he was merely a trespasser, and that the defendant having a registered lease in his favour was entitled to remaining possession of the holding, and that, therefore, no decree should have been given for possession or injunction.
12. It will be noted that the Zemindar is no party to this suit, and, of course, it is a truism to say that a suit for a declaration between two rival tenants may be brought in a Civil Court. But, put baldly in: this way, it seems to me to be too broadly stated having regard to the more recent rulings of this Court, in which the doctrine of the 'exclusive jurisdiction' of the Revenue. Courts in certain matters has, been developed, and emphasis directed to the wording of Section 167 which says, 'no Court other than a Court of Revenue shall take cognizance of any dispute or matter in respect of which a suit' lies under the Fourth Schedule. The latest case on the point is that of Jagannath v. Balwant Singh 68 Ind. Cas. 247 : 20 A.L.J. 570 : (1922) A.I.R. (A.) 372 : 4 U.O.L.R. (A.) 194 : 44 A. 692.
13. I do not, however, intend to decide this case on the point of jurisdiction, although I doubt whether the learned Judge was right in holding that the mere fact that there was a delay of a year between the execution of the lease and the defendants' taking possession differentiates this case from those relied upon by the Munsif.
14. On the findings, the Lambardar had orally let in the plaintiff as a tenant of some kind but certainly not as an occupancy tenant.
15. After that date the Zemindar executed a registered permanent lease in favour of the defendant under which he was entitled to get possession of the holding and eventually did so. The fact that he waited a year or more before taking possession seems to me really to make no difference. I do not think the mere acceptance of rent by the Lambardar from the plaintiff before the defendant took possession under the lease in any way operated as a revocation of the registered lease. In this view of the case the learned Munsif was right. Apart from this, it seems to me, that the plaint, with regard to some of the reliefs which are sought, offends against Section 167 of the Agra Tenancy Act, because it seems to me that the object of this suit is really to prejudice, if possible, the-rights which the defendants or the Zemindar may have, and which if they wish to establish, they must have recourse to the Revenue Court. At any rate, it seems to me to be an attempt to evade the provisions of the Tenancy Act. Some of the reliefs claimed might have been brought appropriately in the Civil Court. For instance, I think a suit, to recover damages for wrongfully cutting the crop would, prima facie, lie within the jurisdiction of the Civil Court; or the plaintiff might have brought a suit for possession under Section 9 of the Specific Relief Act, and to such a suit, I take it, there could be no answer--but obviously his object is not merely to get back into possession and to indemnify himself, but to get back into possession as the occupancy tenant in succession to Ghissa, deceased. The holiest and straightforward course for him to adopt was to bring a suit under Section 79 of the Tenancy Act, joining the Zemindars as defendants.
16. Instead of that, he virtually asks the Civil Court to determine that he is the occupancy tenant and as such entitled to possession. And this is the effect of the decree which the District Judge has given him. It seems to me idle to say that such a declaration by a Civil Court will not avail him hereafter in the Revenue Court--it is enough to look at Section 167 of the Tenancy Act, to find that it is beyond the jurisdiction of the Civil Court--irrespective of consequences, to make such a declaration.
17. Having regard to the way the case has been argued before me, I must, I think, treat this suit as an ordinary suit for ejectment and mesne profits or damages, for a tortious dispossession, properly brought in a Civil Court. Treating it in this way it seems to me the suit must fail. On the day of suit defendants were in possession, and were entitled to hold possession unless and until the plaintiff showed a better title. In other words, it becomes a question, prima facie, of title. The plaintiffs rely on an oral lease, given by the Lambardar, the defendants rely upon a registered lease executed by the Zemindars. The Civil Court cannot investigate, even much less find on the allegations of the plaintiffs, that he is for one reason or another an occupancy tenant--nor, for the same reason, can it decide whether the defendants are permanent lessees--but between the two, it seems to me the plaintiff has failed to prove that he has a better title than the defendants; and 'melior est possessitio defendentis.' As he fails on the main ground I think he must also fail on the claim for damages. It is his own fault; he has deliberately framed his suit in a way to defeat the provisions of the Tenancy Act, and must pay the penalty. I allow the appeal, and dismiss the suit with costs in all Courts including in this Court-fees on the higher scale. I do not merely set aside the decree of the lower Court, and restore that of the Munsif, because the plaintiff himself did not accept the direction of the Munsif but pressed the lower Court to decide the suit on its merits, and the appeal before me has been argued on the basis that it was a purely civil suit properly instituted in the Civil Court.