1. The appellant Mahabir Prasad preferred this appeal under the Letters Patent against the decision of Tare J. in Second Appeal No. 163 of 1954.
2. The dispute relates to certain occupancy fields, which were held by two brothers Kaliram and Maniram jointly. In the year 1939 they sold them by two separate sale-deeds (Ex. P-l and Ex. P-2) to the appellant for a consideration of Rs. 1,260/- and Rs. 73/- respectively. These sale-deeds are not registered. Respondent Samaroo is the son of Kaliram. After the sale to the appellant, Samaroo and Mst. Ghasin, widow of Maniram, applied to the Revenue Courts under Section 13 of the C. P. Tenancy Act, 1920, for being placed in possession of the suit lands on the allegation that the sales in question were in contravention of Section 12 ibid. Mst. Ghasin did not prosecute the proceedings, but Samaroo fought the matter upto the Board of Revenue. The Sub-Divisional Officer, the Deputy Commissioner, the Commissioner and finally the Board of Revenue all held that Samaroo was entitled to possession of the fields. Their possession was accordingly delivered to him on 12-11-1949, i.e. ten years after the dispute started. During all this period, the appellant had paid the rent to the landlord and had continued in possession of the fields.
3. Having lost possession on account of the order of the Board of Revenue, the appellant filed the present suit for possession of the field against Surname. His claim was decreed by the trial Court and the first appellate Court maintained the decree. However, in second appeal the learned Single Judge reversed the decision of the Courts below and dismissed the suit.
4. The trial Court and the first appeal Court relied upon the decision in Chindhu Sukal v. Dadu Ambar, ILR (1945) Nag 433: (AIR 1945 Nag 119), to hold that if a transfer made by an occupancy tenant is invalid, a suit for ejecting the transferee lies in the Civil Court. The learned Single Judge doubted the correctness of that decision and held that the revenue Courts had jurisdiction. The learned Judges of the Division Bench before whom the Letters Patent appeal came up for hearing have referred the case to the Full Bench to consider whether Chindhu Sukal's case ILR (1945) Nag 433: (AIR 1945 Nag: 119) was correctly decided. The learned counsel for the parties, however, requested that the case should be fully heard and decided on merits, as answering the reference alone could not conclude the matter. Accordingly, we have heard them on all points arising in the case.
5. So far as the transfer evidenced by the second sale-deed (Ex. P-2) is concerned, it is for a consideration of Rs. 73/- only. Such a transfer can be effected orally under Section 54 of the Transfer of Property Act and as possession of the fields was delivered to the appellant in pursuance thereof, it is valid in law. It was, therefore, conceded before us that the orderof the Revenue Courts was within jurisdiction and could not be assailed in respect of the fields covered by the sale-deed Ex. P-2.
6. So far as the first sale-deed (Ex. P-1) is concerned, it was for a consideration of Rs. 1,260/- and yet unregistered. Consequently the question arises whether it was a transfer in contravention of Section 12 within the meaning of Section 13 of the C. P. Tenancy Act and could therefore be avoided in the Revenue Courts by Samaroo. In Chindhu Sukal's case ILR (1945) Nag 433: (AIR 1945 Nag 119) (supra) it has been held that the transfer of an occupancy holding for Rs. 100/- or more, if effected by an unregistered document, is null and void and does not therefore contravene Section 12 of the C. P. Tenancy Act.
The remedy of the landlord to eject the transferee, in such a case, is to file a civil suit, and he cannot maintain an application under Section 13 of the C. P. Tenancy Act. In deciding the case, reference was made to the observations of Stanyon A. J. C. in Ganeshdas v. Shankar, 8 Nag LR 22, namely 'in such a case the intended transferee is not a transferee at all, and, if he enters upon possession under colour of the transaction, his entry is a trespass at civil law.' In that case, the learned Additional Judicial Commissioner had referred to two earlier decisions viz., Chamru Sao v. Tulsidin Singh, 17 CPLR 49 and Dayaram v. Shaligram, 16 CPLR 135. In the first case, the decision was that in cases where the transfer is invalid for want of registration, or the registration has been procured inadvertently by overlooking the prohibition contained in Section 46 (5) of the C. P. Tenancy Act, 1898 (corresponding to Section 12 (6) of the C. P. Tenancy Act, 1920), the transferee was a trespasser at civil law and an action to eject him lay in a civil Court.
In the second case, the view taken was that where the transfer is valid but for the prohibition contained in Section 46 (5), i.e. if the registration has been effected through inadvertence, the transfer cannot be avoided except by taking proceedings in Revenue Courts. This controversy was set at rest in Chindhu v. Rameshwarnath, 22 Nag LR 128 : (AIR 1927 Nag 30), and it was finally decided that registration in contravention of any provision of law, whatever be the cause that led to the contravention, is ineffectual and must be ignored.
7. The consequence of the view taken in Chindhu Sukal's case, ILR (1945) Nag 433 : (AIR 3945 Nag 119) (supra), will then be that Section 13 of the C. P. Tenancy Act would not be attracted except in a case where the transfer being for less than Rs. 100/- does not require a registered document and can be effected by delivery of possession. A sale-deed can be validly registered only in cases where the transfer is permitted by the Revenue law and cannot be effectually registered where the transfer is not permitted. It is for transfers not permitted by the Revenue law that Section 13 was intended and if in all these cases, the relief has to be sought in a civil Court, Section 13 would be rendered more or less nugatory.
8. This conclusion is further strengthened when we consider the case of an heir where certain special considerations arise. Tenancy initially is a matter of contract between the landlord and tenant. The rights of the landlord have been whittled down by the Statute in the interest of the tenant, but the right of ultimate reversion of the land still belongs to the landlord. If the tenant transfers the land contrary to the provisions of the C. P.
Tenancy Act, the landlord has a right to take back possession of the land by resorting to the summary remedy in the Revenue Courts under Section 13. In cases where the tenant loses his right by prescription under an invalid sale, he may eject the transferee by a civil suit. This is because the transferee is a trespasser and cannot be forced upon the landlord as a tenant without his consent. The position of an heir of the transferring tenant is very much different. He has no right to claim possession of the land apart from the special provisions of the C. P. Tenancy Act,
He has nothing to complain of in a civil Court whether the transfer of the land by the original tenant is valid or otherwise. However, the Legislature thought it fit to continue the land with the heirs of the tenant in cases where they do not need it personally. The right given to a tenant is a creation of the C. P. Tenancy Act which provides a special mode of working out that right. It is a well settled rule that where a right is conferred by an Act and a remedy is also provided therein, that remedy, and no other, can be followed. An heir cannot, therefore, approach the civil Court for relief. The intention of the Legislature is obviously to preserve the land for the tenant's heirs in spite of the tenant's attempts to alienate it. This object cannot be achieved if invalid transfers are excluded from the purview of the Revenue law. The word 'transfer' should, therefore, be so interpreted as to further the object of the Legislature rather than defeat it.
9. The position being so clear in the context of an heir, we must give the same meaning to the word 'transfer' in the case of the lambardar also, as the word could not have been used in two different senses in the same provision. We have no hesitation in holding that the word 'transfer' in Section 13 of the C. P. Tenancy Act covers all cases of physical transfers of possession and is not restricted to transfers which are valid according to the Transfer of Property Act or any other law. The other interpretation would place an invalid transfer in a better position than a valid transfer.
10. In Chindhu Sukal's case, ILR (1945) Nag 433 : (AIR 1945 Nag 119), there was a distinct finding that the rights of the transferring tenant had been extinguished and consequently it was rightly held that the landlord could only sue in a civil Court to enforce his right of reversion. On the special facts of that case the question of interpretation of Section 13 of the C. P. Tenancy Act in the context of a transfer invalid for want of registration did not directly arise for consideration. In our opinion, the observations in that case, in so far as they lay down that in cases of transfers invalid for want of registration no application lies in a Revenue Court under Section 13 of the C. P. Tenancy Act, do not state the legal position correctly.
11. Coming now to the merits of the case, the right of the respondent as an heir was not disputed. The Revenue Courts had, therefore, jurisdiction to place him in possession and their order cannot be challenged now in a Civil Court.
12. On behalf of the appellant it was urged that he had perfected his right by exclusion of the respondent from possession for more than three years. The respondent had applied for relief in the Revenue Courts in proper time and it is none of his fault that the matter dragged on for ten years. As he could not get possession until the matter was finally decided, no question of excluding the respondent from possession arises. Further, the fact that the landlord accepted rent from the appellant during the period from 1939 to 1949, while proceedings in the Revenue Courts were pending, would make no difference, as the respondent could not take any action to prevent it during the time his application was pending.
13. In the result, the appeal is dismissed with costs. Hearing fee is fixed at Rs. 100/- only.