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Govinda Kumar Sur and ors. Vs. Mohini Mohan Sen and ors. - Court Judgment

LegalCrystal Citation
Subject Tenancy
Decided On
Reported inAIR1930Cal42
AppellantGovinda Kumar Sur and ors.
RespondentMohini Mohan Sen and ors.
Cases Referred and Mohan Lall v. Bhuteswar
- .....the plaintiffs raise the question of title to the property and therefore it should be valued as a title suit. the plaintiffs no doubt have given a detail of their title in the plaint and they thought it necessary to do so as the defendants or their predecessors had not attorned to them but to the persons from whom they derived their title. in the prayer portion, however, they did not pray for declaration of title or recovery of possession on such declaration but confined their claim to the eviction of the defendants. as has been held in balasidhantam v. perumal chetti : air1915mad654 in a suit brought under section 7, clause 11(cc), a court cannot enter into the question of title and give a decree on the basis thereof. what the court is entitled to do under that clause, is to find if.....

Suhrawardy, J.

1. This is an action in ejectment by the plaintiff-appellants after service of notice to quit on the tenant-defendants. The case is that defendants 1 to 3 were holding under the plaintiff's as monthly tenants-at-will a building in the town of Dacca, described in the plaint. Defendant 4 was a sub-tenant under the tenant-defendants. The plaintiffs served a notice to quit upon them but the tenant-defendants refused to vacate and hence the present suit. The suit was valued at Rs. 456 being the twelve months' rent payable by the tenant defendants at the rate of Rs. 38 a month. It was tried by the Munsif and decreed in favour of the plaintiffs. Defendants 1 to 3 appealed and an application was made before the Subordinate Judge who heard the appeal to formulate an issue and to try it as a preliminary issue regarding the valuation of the suit and the jurisdiction of the Munsif in the trial Court. The learned Subordinate Judge gave effect to this plea in bar and held that the suit was undervalued, that it should have been valued according to the market value of the property in suit and that it was possible that on a proper valuation of the property in suit the Munsif would have had no jurisdiction to try it. In this view lie remanded the case to the trial Court for determination of the allied questions of valuation and jurisdiction.

2. The plaintiffs have appealed and it is argued on their behalf that the view of the law taken by the learned Subordinate Judge as regards the valuation of the suit is wrong. Objections are also raised with regard to the legality of the order of remand and the propriety of the objection as to the valuation and jurisdiction taken at the appellate stage of the suit. It is not necessary to consider the other objections as in my judgment the appeal succeeds on the main question, in the case relating to valuation and jurisdiction.

3. The learned Subordinate Judge has held that in a suit as the present it is necessary that the suit should be valued1 according to the market price of the property, his reasons being that as soon as the notice to quit was served upon the tenants, the tenancy was determined and the tenants became trespassers; and the suit against trespassers should bear ad valorem fees under Section 7, Clause 5, Court-fees Act. It is contended on behalf of the appellants that the valuation put by them is correct under Section 7, Clause 11(cc).

4. The learned Subordinate Judge appears to have been greatly influenced by a decision which was not then properly reported and which had appeared in the short notes of Govinda Ram Agarwalla v. Dulu Pada Dutt : AIR1928Cal753 . Before considering the decision I should like to refer to the words of Section 7, Clause 11(cc). They are:

for the recovery of immovable prop3rty from a tenant including a tenant, holding over after the determination of a tenancy, the suit should be valued according to the amount of the rent of the property to which the suit refers payable for the year next before the date of presenting the plaint.

5. This clause contemplates a suit by the, landlord against a tenant. The words 'including a tenant etc.,' after the word 'tenant' amplify the meaning of the term 'tenant' rather than restrict it. But it has been held by the Subordinate Judge that as soon as a notice to quit is served upon the tenant he ceases to be a tenant and therefore this clause does not apply to a case like this. This argument seems to be absurd on the face of it. So long as a person remains a tenant, the landlord has no right to recover immovable property from him. His right to do so arises only when the relationship between him and the tenant has ceased and the tenant has lost his right to remain in possession of the property. I can conceive of no case in which the landlord can recover immovable property from the tenant qua tenant i.e., when the tenancy subsists. It is half heartedly argued on behalf of the respondents that there may be a case in which a tenant encroaches upon the landlord's land and the landlord brings a suit for recovery of that land from the tenant. Such a case according to the respondent would be covered by Section 7, Clause 11(cc). In such a case the suit will be a suit for recovery of possession of property and has to be valued at its market price. It cannot be governed by Clause 11(cc), as a suit under that clause is to be valued at the rent payable for the year next before the date of presenting the plaint. It is evident that in the case of an encroachment by a tenant there will be no rent payable to the landlord in respect of that land it is therefore, clear that the word tenant in that clause means an extenuate, that is, a person who was a tenant but has now ceased to be so. This view is supported by a decision of the Judicial Committee with reference to the word used in the Calcutta Rent Act. Under Section 15 of that Act a certificate should be granted by the Controller on the application made to him by 'any landlord or tenant.' It was argued before their Lordships that the appellant bank having ceased to be tenants at the time when they made the application as their term had expired by forfeiture or effluxion of time, they were not competent to make an application under that law. Their Lordships observe:

Their Lordships are of opinion that this adopts a too narrow construction of the words. In order to give any working effect to the Act it is necessary that the words 'landlord' and 'tenant' must include, as they often do in ordinary parlance, ex-landlord and ex-tenant. An action by an ex-landlord against an ex-tenant might ordinarily be described as an action of the landlord against the tenant.' Karnani Industrial Bank v. Satya Niranjan Shaw A.I.R. 1928 P.c. 227.

6. Such also is the law in England where summary procedure has been provided for recovery of property from a tenant who has ceased to be a tenant. To put any other meaning to the word 'tenant' as used in that clause will be to impute to the legislature the futile work of passing a law which can never be applied to any concrete case. In my judgment the question seems to be so clear that no authority is required in support of it. This view has also appealed to other Courts where the question came up for consideration. In Ram Charan Singh v. Seodutt Singh A.I.R. 1922 Pat. 380 the learned Chief Justice held that the word 'tenant' in Section 7, Clause 11(cc) includes a person to whom that description would apply immediately before the commencement of the suit but who is liable to ejectment by reason of the termination of the tenancy.

7. Now to come to the case on which the learned Judge has relied for the view that he adopted, reported in the short notes as Govinda Ram Agarwala v. Dulupada Dutt A.I.R. 1928 P.C. 227. That case has since the judgment of the Sudordinate Judge appeared in the reports portion of the Calcutta Weekly notes as Govinda Ram Agarwalla v. Duhipada Dutt A.I.R. 1928 P.C. 227 decided by Cammiade, J. sitting singly in which the learned Judge is reported to have held that a suit for recovery of property from a person whose tenancy has been terminated by notice is not covered by Section 7, Clause 11, Sub-clause (cc), Court-fees Act. According to the accepted canon of interpretation of judicial decisions every decision must be examined with reference to, and is an authority on the facts of, that particular case. In that case the suit was brought against the defendant by a person claiming to be the landlord of the tenant defendant and the suit was valued according to Section 7 Clause 11(cc). The plaintiff was a transferee from the original landlord. The defence was that the plaintiff's vendor had entered into a contract for the sale of that property to the tenant before the sale to the plaintiff and that a suit for specific performance of that contract was then pending.

8. Further, the plaintiff in that suit had brought a rent suit against the tenant which had failed' up to the High Court on the objection of the tenant. In these circumstances the plaintiff could not, bring a suit for ejecting the defendants after notice to quit. The decision therefore of that case that the suit was not covered by Section 7, Clause 11(cc) may be justified, though, in may opinion, the proper course would have been to dismiss the suit when it was found that there had been no contract of tenancy between the parties and not to convert it to a suit of another nature a declaratory and possessory suit: the causes of action in the two suits being different giving rise to different issues. But the learned Judge in his judgment has not confined himself to the facts of the particular case though it must be assumed that they were before his mind's eye when he pronounced his judgment. He observes:

Once the tenancy has been determined, the person who was a tenant becomes a trespasser holding over and ho could only be a tenant holding over provided that such holding over was with the consent express or implied of the landlord,

9. Further on he adds:

It seems that there, can be no room for holding that the legislature intended under the term 'tenant' persons who had ceased to be tenants altogether.

10. If these words were intended to be of general application I respectfully disagree from the view taken by the learned Judge. As I have already discussed this question I need not repeat the arguments in support of my view. The learned Judge has also referred to the words including the tenant holding over' in that clause as indicating that the word 'tenant' used therein means only the person who still bears the character of a tenant. It is not necessary to consider why these words are put there and for what purpose; but it appears that it was to clear a general impression that on the expiration of the term the tenant ceases to be a tenant and becomes a trespasser. The law of landlord and tenant, however, allows some rights and privileges to a tenant holding over after the termination of the term including rights and liabilities under the expired lease if the holding over is recognized by the landlord. But the clause as it stands is to be interpreted according to the simple words used therein, namely, it includes all sorts of tenants including a tenant who continues to be in occupation after the termination of his tenancy. In that sense the. expression holding over may not carry its technical meaning as given to it by law. It will be disastrous if the law is held to be that the landlord whenever1 his tenant refuses to vacate has to bring, a suit for declaration of title and possession for in that view, a person as owner will be involved in constant litigations-with his tenants refusing to vacate. As the facts in Govind Ram's case : AIR1928Cal753 , may justify the decision of that case, it is; neither necessary nor desirable to refer the question raised in this suit to a Full Bench. I am accordingly of opinion that the suit as brought by the plaintiff was properly and correctly valued and that the Munsif who tried the suit had jurisdiction to try it.

11. I now proceed to deal with the contentions urged before us on behalf of the respondents. The first point argued is that a portion of the property in the occupation of the defendants was not according to the plaintiff included in the original tenancy and, therefore, the plaintiffs must bring a suit for declaration of title and possession. The plaintiffs' case is that defendants 1, 2 and 3 were successors of their tenant who was in occupation of the building described in schedule kha. The tenant had included within his tenancy rooms described in Schedule ga. The plaintiffs, therefore, claim to eject the defendants not only from: the property mentioned in Schedule kha, but also from that mentioned in Schedule ga which formed by the act of his tenant a part of the tenancy. It is not the defendant's case that the old tenant or the defendants set up any right in themselves with regard to the property in Schedule ga. The learned Munsif in dealing with this point has remarked:

Although the plaintiffs do not in so many words call the defendants tenants over Schedule ga property the effect of the entire plaint is that they admit the defendants to be tenants over both Schedule ga and kha lands together, the case as made in the plaint being that the room in Schedule ga was possessed by the old tenant as included in her tenancy and there was no question of title raised with regard to that schedule.

12. The second contention is that as defendant was made a defendant in the suit it cannot be said to be a suit governed by Section 7, Clause 11, Sub-clause (cc). It is not necessary to discuss in this case the effect on the frame of the suit of the inclusion of defendant 4 in the category of defendants. In view of the decisions in the case of D.E.D. Ezra v. J.E. Gubbay [1920] 47 Cal. 907 and Ram Kissen Das v. Binjraj Choudhury A.I.R. 1922 Cal. 691, the question might assume some importance if it were urged in a proper case in a proper manner. In this case defendant 4 did not enter appearance either in the trial Court or in the lower appellate Court; nor is he present before us at the hearing of the appeal. He has taken no interest in this matter probably under the idea that a decision against the1 tenant-defendants will be binding upon him, as has been held in the case of Ramkissen Das v. Binjraj Choudhuri A.I.R. 1923 Cal. 907. But assuming that defendant 4 is not a proper party in this litigation, what is the effect of joining him as a defendant? The most that the [defendant could claim was to have the suit dismissed as against him. But he could not compel the plaintiff to convert his suit into a suit for declaration of title and possession. The suit as framed must stand or fall on the allegations made therein and the character given to lit by the plaintiff. It is a suit brought by the landlord against his tenants. If the Court holds that there is no relationship of landlord and tenant between the plaintiff and any of the defendants the proper course is to dismiss the suit as against that defendant. But there is no provision in the law that I am aware of which will entitled the Court to compel the plaintiff to change his suit into one of another nature. Moreover it does not sound proper in the mouth of defendants 1 to 3 who have been found to be the tenants of the plaintiffs to say that there is a defendant in the suit who is not a tenant and therefore the suit cannot proceed in its present form.

13. The third point raised by Dr. Basak on behalf of the respondents is that in this case the plaintiffs raise the question of title to the property and therefore it should be valued as a title suit. The plaintiffs no doubt have given a detail of their title in the plaint and they thought it necessary to do so as the defendants or their predecessors had not attorned to them but to the persons from whom they derived their title. In the prayer portion, however, they did not pray for declaration of title or recovery of possession on such declaration but confined their claim to the eviction of the defendants. As has been held in Balasidhantam v. Perumal Chetti : AIR1915Mad654 in a suit brought under Section 7, Clause 11(cc), a Court cannot enter into the question of title and give a decree on the basis thereof. What the Court is entitled to do under that clause, is to find if there was relationship of landlord and tenant between the plaintiff and the defendant and if the defendant's, tenancy has been validly terminated. If it finds any of these elements non-existent, the suit must be dismissed. If any question of title is raised in the suit it can only be gone into for the purpose of determining the main question in the suit about the relationship between the plaintiff and the defendant.

14. It is also contended that the defendants having set up a title in themselves the suit must be treated as one for establishment of title and possession. The nature of a suit depends on the case made in the plaint and not on the defence taken. In suits for rent or actions in ejectment, questions of title are often raised and determined, but that is done for the purpose of deciding the main issue relating to the relationship of landlord and tenant between the parties. If the defence succeeds in showing title in itself, the suit fails as the relationship is not proved; if it fails that relationship is established.

15. A preliminary objection is taken by Dr. Basak on behalf of the respondents that no appeal lies from the order of remand by the lower appellate Court. It is not necessary to determine this question which has not yet been finally settled because if no appeal lies we can interfere with the wrong order of remand under Section 115, Civil P.C.

16. The result of all these considerations is that this appeal must be allowed, the decree of the lower appellate Court set aside and the case remanded to that Court for determination on the merits. The appellants are entitled to their costs in this Court but the costs of the lower Courts will abide the result.

Jack, J.

17. I agree with the judgment which has just been delivered by my (learned brother. Another point of view from which we arrive at the same result, has been well put by the Judicial Commissioners in the case of Vithaldas v. Ghulam Ahmed A.I.R. 1927 Nag. 156 as follows:

The claim in a suit must b8 regarded with reference to the facts existing when the cause of action accrued, not to the state of things when the suit was filed. Up to the moment he gives rise to a cause of action by refusing to quit on demaned, a tenant is still a tenant, and that is the point of time to which the suit for his ejectment in consequence of that refusal must be referred. If it were correct to look at the facts as they stood when the suit was filed in this connexion, there could be no such tiling as a suit for the ejectment of a tenant and Clause 11(cc), Section 7, Court-fees Act, which was added to it in 1905, would be futile along with practically all the provisions of the law in regard to the ejectment of tenants.

18. It has been pointed out to us by the learned advocate for the appellants that the word 'tenant' is similarly used in Section 108, T.P. Act, and in Section 139, Lim. Act, with reference to a man who has ceased to be a tenant if the alleged facts are established.

19. The view taken in the case of Govinda Ram Agarwala v. Dulu Pada Dutt : AIR1928Cal753 by Cammiade, J. that, in such cases, Section 7(v), Court-fees Act, is applicable, was also adopted in the cases of Narayan v. Tukaram A.I.R. 1923 Nag. 310 and Champat v. Balak Das A.I.R. 1925 Nag. 131 but the view we have taken was followed in Ramcharan Singh v. Sheodutta Singh A.I.R. 1923 Pat. 380, Sree Ram v. Jagat Narain [1926] 13 O.L.J. 473, Venlcata Ratlamma v. Sree Ramulu : AIR1927Mad331 and Mohan Lall v. Bhuteswar : AIR1925All142 .

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