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Sri Sri Sri Varadaraja Sooru Harischendana Deo Bahadur Zemindar of Tarla Vs. Kanda Barikivadu - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported inAIR1922Mad119(1); (1921)40MLJ466
AppellantSri Sri Sri Varadaraja Sooru Harischendana Deo Bahadur Zemindar of Tarla
RespondentKanda Barikivadu
Cases ReferredSoundaram Alyar v. Sennia Naicken I.L.R.
Excerpt:
- - now if we turn to schedule ii of the small cause courts act, clause s and clause 44 of that schedule clearly exclude a suit of which the subject-matter is rent due to a landlord under the estates land act by his tenant from the category of suits of a nature cognisable by the small cause courts. but as i said, the scheme of the act of 1887 is quite different and the schedule 2 to that act clearly excludes the subject-matter of a suit for rent due by a tenant to a landlord under the estates land act from the subject-matter of suits which are of a nature cognizable by small cause courts......service inam and that no rent was payable. the preliminary objection is to the effect that as this suit for rent is in the words of section 102, c.p.c. a, suit of the nature cognisable by courts of small causes and as, the amount or value of the subject-matter is less than rs. 500, no second appeal lies though the suit was instituted in the revenue court and though by section 189 (madras estates land act), suits for rent brought by landholders under that land act against their tenants are expressly excluded from the jurisdiction of civil courts, (which expression includes small cause courts and civil courts exercising small cause jurisdiction). to find out whether a suit for rent between a landlord and a ryot falling under the madras estates land act is or is not of a nature cognisable.....
Judgment:

Sadasiva Aiyar, J.

1. A preliminary objection has been raised in this case, namely, that no second appeal lies having regard to Section 102 of the Code of Civil Procedure. To understand this objection, I shall state these material facts. The plaintiff who is the appellant before us is the proprietor of Tarla Estate and a landholder under the Madras Estates Land Act. The defendant is the holder of about 2 acres of wet land called ' Kheta Jeroyati Kotwal land ' in some place in some of the Muchilikas Exhibits A and B series but it is treated as jeroyati or ordinary ryoti land in fixing and charging assessment thereon. That it has been treated as ordinary jeroyati land from about 1906 by both the Zemindar and by the defendant's father who was then a tenant cannot be denied. The proprietor seems to have made a reference to the land as ' Kheta Kotwal, ' that is, as once having been held on service tenure with some object which it is not necessary to find out definitely for the purpose of this case. As I said, the fact that the land had been converted into ryoti land with the consent and knowledge of both the landlord and tenant cannot in my opinion be disputed on the evidence. The present suit was brought by the plaintiff for the recovery of arrears of rent for four faslies preceding the institution of the suit. The defence was that the land continued to be service inam and that no rent was payable. The preliminary objection is to the effect that as this suit for rent is in the words of Section 102, C.P.C. a, suit of the nature cognisable by courts of small causes and as, the amount or value of the subject-matter is less than Rs. 500, no second appeal lies though the suit was instituted in the Revenue Court and though by Section 189 (Madras Estates Land Act), suits for rent brought by landholders under that Land Act against their tenants are expressly excluded from the jurisdiction of civil courts, (which expression includes small cause courts and civil courts exercising small cause jurisdiction). To find out whether a suit for rent between a landlord and a ryot falling under the Madras Estates Land Act is or is not of a nature cognisable by Small Cause Courts, we have to consider the provisions of the Provincial Small Cause Courts Act II of 1887, Section 15 of that Act is as follows:

(1) A court of Small Causes shall not take cognisance of the suits specified in the second schedule as suits excepted from the cognisance of a Court of Small Causes.

(2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force all suits of a civil nature of which the value does not exceed Rs. 500/- shall be cognisable by a Court of Small Causes.

(3) Subject as aforesaid, the local government may by order in writing direct that all suits of a civil nature of which the value does not exceed Rs. 1000 shall be cognisable by a Court of Small Causes mentioned in the order.

2. Clause 2 of Section 15 is the important clause in that section and in my opinion it shows that where any of the exceptions specified in the schedule to the act or any provision of any other enactment for the time being in force excludes the subject-matter of a suit from the cognisance of the Court of Small Causes then a suit relating to that subject-matter is not one of a nature cognisable by the Small Cause Court within the meaning of Section 102, of the Civil Procedure Code. Now if we turn to schedule II of the Small Cause Courts Act, clause S and Clause 44 of that schedule clearly exclude a suit of which the subject-matter is rent due to a landlord under the Estates Land Act by his tenant from the category of suits of a nature cognisable by the Small Cause Courts. The observations of the learned Chief Justice and of the majority of the other Judges in the Full Bench decision in Soundaram Aiyar v. Sennia Naicken I.L.R. (1990) Mad. 547 in my opinion support the above interpretation of Section 102, Civil Procedure Code. I might add that this preliminary objection which might have been similarly taken in the very numerous cases which have come before this court on second appeal under the Estates Land Act passed 12 years ago seems either not to have been so taken at all or not seriously pressed even if taken in any of those numerous cases. I would therefore overrule the preliminary objection.

3. Coming to the merits, the learned District Judge has reversed the Deputy Collector's decision on very unsatisfactory grounds. The only plausible reason for arriving at the conclusion that the land continued to be service inam notwithstanding that both parties have treated it as having been resumed by the landholder and granted back as jeroyati land is that although the service may have ceased, no formal steps had been taken for its conversion into jeroyati land. I 4-think that if both the grantor and grantee agreed that the service should cease from a certain date and that the land should thereby cease to be held for the performance of such service no ' formal' steps (whatever that may mean) are necessary to convert it into ordinary jeroyati land. Under the Estates Land Act, the presumption is that all land is jeroyati land and once the land ceases to be service inam land, it resumes its character of ordinary jeroyati land without any ' formal' ceremonies being gone through.

4. Reliance was placed upon a decision in Musa Miya Sahib v. Sayad Gulam Hussain Muhammad I.L.R.(1882) 7 Bom. 100 in support of the argument that a suit for rent is a suit of a nature cognizable by the Small Cause Court Act. It must be remembered however that that decision is a decision of 1882 when Act XI of 1865 was the Small Cause Court Act in force. As pointed out by Sir Arnold White, C.J. in his decision in the Full Bench Case in Soundaram Aiyar v. Sennia Naicken I.L.R. (1900) Mad. 547 the schedule of the latter Act of 1887 is the converse of that of the Act XI of 1865, Under the Act of 1865, the Court of Small Causes is given jurisdiction over certain specified claims whereas under the Act of 1887, the Court has jurisdiction over every suit falling within certain descriptions and within a certain pecuniary limit unless that suit is expressly excluded from the cognizance of the Small Cause Court by the schedule or by any other enactment. Hence there might be one answer to the question whether a particular suit is cognizable by a Small Cause Court when that question is considered with reference to the provisions of Act XI of 1865. The very same question whether that suit is cognizable by the Court of Small Causes might permit of quite a different answer when it is considered with reference to the provisions of Act IX of 1887. Under Section 6 of Act XI of 1865, all claims for money due on bond or other contract or for rent, or for personal property are cognizable by Courts of Small Causes except claims which may then be brought before a Revenue Officer and so on. Thus, the subject matter of suits for rent had been treated as a class as falling within the category of the subject-matter of suits cognizable by a Court of Small Causes and hence so long as that Act of 1865 was in force the expression ' suits of the nature cognizable by a Small Cause Court' would include suits for rent; but as I said, the scheme of the Act of 1887 is quite different and the schedule 2 to that Act clearly excludes the subject-matter of a suit for rent due by a tenant to a landlord under the Estates Land Act from the subject-matter of suits which are of a nature cognizable by Small Cause Courts.

5. I would therefore allow the appeal and restore the decree of the first court with costs of the plaintiff here and, in the lower appellate Court.

Napier, J.

6. I agree and only wish to add a few words on the Preliminary point taken, as we are informed there is no reported case in which this point has been decided. That this objection has at all events rarely been taken is obvious from the fact that this court has for the last ten years been occupied in giving decisions on the construction and meaning of the word rent in cases which, if this objection prevailed, could not have come to this court. It is therefore necessary that there should be a definite ruling on the point so that the question may beset at rest. In my opinion the ruling of the Full Bench in Soundaram Alyar v. Sennia Naicken I.L.R. (1900) Mad. 547 disposes of the matter. There the Court had to consider the meaning of Section 586 of the old Code, Act XIV of the 1882 corresponding to Section 102 of the present Code. The Chief Justice stated as follows on the meaning of these words:--'The object of this section, as it seems to me is to take away the right of second appeal or special appeal where the value of the subject-matter of the original suit does not exceed Rs. 5oo/-in the case of all suits which as regards their subject-matter would be within the jurisdiction of Courts of Small Causes but which are outside that jurisdiction by reason of the amount claimed being beyond the pecuniary limit of the small cause jurisdiction.' In another part of his judgment, the learned Chief Justice says 'It seems to me that Section 586 of the Code applies to cases which as regards subject-matter would be within, but by reason of the amount claimed are without, the jurisdiction of a Court of Small Causes'.... The words 'Any suit of the nature cognizable' as used in Section 586 of the Code may be paraphrased thus--Any suit relating to a subject-matter over which a Court of Small Causes would have jurisdiction if the claim were within the pecuniary limits of its jurisdiction.' Shephard, J. says 'If it is found that a suit for rent could legally be tried by a Small Cause Court, that suit is a small cause suit and, therefore, a second appeal is recluded.' Subramania Ayyar, J. says:--' It is, therefore, as urged by Sir V. Bhashyam Ayyangar on behalf of the appellants, almost certain that the words 'any suit of the nature cognizable in Courts of Small Causes' in Section 586 were intended to comprise suits which are cognizable by any Court of Small Causes by virtue of the provisions of the Small Cause Courts Act itself, but not suits which may become cognizable by Small Cause Courts under special circumstances only'. Benson and Davies, JJ. agreed with the learned Chief Justice. Taking the language of the learned Chief Justice, the important words are ' suits which as regards their subject-matter would be within the jurisdiction of Courts of Small Causes; and we have to ascertain whether a suit such as this would be within the jurisdiction of the Courts of Small Causes in any circumstance whatever.' The Provincial Small Cause Courts Act of 1887 contains this provision Section 15(2): ' Subject to the exceptions specified in the second schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a court of Small Causes,' Sub-section 3 says, ' Subject as aforesaid the local Government may, by order in writing, direct that all suits of civil nature of which the value does not exceed the thousand rupees shall be cognizable by a Court of Small Causes.' We have therefore to see with regard to the first of these two sub-sections whether there is any exception specified in the schedule and any provision of any enactment for the time being in force which prevents these suits which are otherwise of a civil nature from being cognizable by Court s of Small Causes; and with regard to the second Sub-section whether it would be possible for the local Government by order in writing to direct that suits such as these, the value of which does not exceed one thousand rupees should be cognizable by Courts of Small Causes.

7. I will first deal with the exception based on the schedule of the Act. The schedule provides under Article 8 that a suit for the recovery of rent, other than house rent, unless the Judge of the Court of Small Causes has been expressly invested by the local authority to exercise jurisdiction is excepted. Therefore unless there has been a special investment, such a suit would not be cognizable. But with regard to Sub-section 3 there is this provision that the local government may, by order in writing, direct and we have therefore to find if the local government did so direct and whether there is any other provision in the second schedule which would prevent such a direction having effect. This provision is to be found in Article 44 'a suit the cognizance whereof by a Court of Small Causes is barred by any enactment for the time being in force,' so that even with regard to the exceptions specified in the schedule, there is this Article 44 which is a complete bar to the jurisdiction either accruing by virtue of Section 15(2) or being made applicable by virtue of Section 15(3).

8. Then we have to turn to the language of the Madras Estates Land Act. The suit is one under Section 77 of the Madras Estates Land Act to recover arrears of rent and the language is 'At any time after an arrear of rent has become due the landholder may institute a suit before the Collector for the recovery of the arrear.' Then Section 189 provides that 'A Collector or other Revenue Officer specially authorised under this act shall hear and determine as a Revenue Court all suits and applications of the nature specified in Parts A and B of the schedule and no civil court in the exercise of its original jurisdiction shall take cognizance of any dispute or matter in respect of which such suits or application might be brought or made' and the schedule, Part, A, serial No. 8 which has reference to Section 77 says 'By landholder to recover arrears of rent.' Therefore both under the specific language of the Madras Estates Land Act which is definite on the point as excluding the jurisdiction of all civil courts and on the true construction of Section 15 of the Provincial Small Cause Courts Act, it is clear that a small Cause Court can have no jurisdiction over a suit for rent under the Madras Estates Land Act, and therefore it is not within the meaning of Section 102 a suit of the nature cognizable by a Court of Small Causes. It follows therefore that this suit is excepted from the language of the Chief Justice in the case above referred to, namely, in the case of all suits which, as regards the subject-matter, would be within the jurisdiction of Courts of Small Causes, and the contention for the respondents is negatived by that ruling.


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