Ram Sewak Lal v. Bashist

Wali-ullah, J.:— This is an appeal by the plaintiff against an order passed by the lower appellate court by which the decree passed by the court of first instance was set aside and the plaint was returned to the plaintiff for presentation to the proper court.

The plaintiff instituted the present suit in the civil court and sought a declaration that a consent decree, dated the 15th of September, 1942, in suit No. 407 of the revenue court was void and ineffectual against him. It was the case of the plaintiff that he was the occupancy tenant of the plots mentioned at the foot of the plaint and that he was in, possession of the same. The plaint went on to allege that defendants 1 to 3, namely, Bashist Pandey, Rikhi and Singhasan Pandey, in collusion with defendant No. 4, Balram Das, filed a suit in the revenue court under sections 59 and 61 of the U.P Tenancy Act and in the course of hearing of that suit a fraud was practised upon the plaintiff, and he was made to give an admission of the claim put up by the plaintiffs of that suit. As a result of the decree passed by the revenue court his name was, ordered to be removed from the revenue papers and this was the principal relief which he sought in the plaint. Subsequently an application for amendment of the plaint was filed and allowed. In substance, however, by reason of the amendment relief (a) of the plaint was modified only in this sense that a declaration walk sought to the effect that the decree passed in suit No. 407 was null and void as against the plaintiff. In substance, however, relief (a) claimed by the plaintiff remained intact.

The suit was contested by defendants 1 to 3 and defendant No. 4. It may be stated here that defendant No. 4 admittedly is a usufructuary mortgagee of the zamindari interests of defendants Nos. 5 and 6 in which the plots in suit are situate. In substance the defence was that the civil court had no jurisdiction to entertain the suit. It was denied that any fraud or undue influence was practised on the plaintiff so far as the admission made by the plaintiff in the earlier suit in the revenue court was concerned. Lastly it was pleaded that the claim was barred by section 42. Specific Relief Act. The court of first instance on at consideration of the matter and after considering some rulings placed before it came to the conclusion that the civil court had jurisdiction to entertain the present suit. On the merits it was held that the suit was not barred by section 12 of the Specific Relief Act. The allegations of fraud made by the plaintiff in regard to his admission in the course of proceedings in the earlier suit in the revenue court, were found proved. In view of these finding's the learned Munsif decreed the suit. On appeal the learned Civil Judge considered only one question, namely, the question relating to the jurisdiction of the civil court to entertain the present suit. On a consideration of the matter at some length, and after considering, various rulings, particularly the ruling of this Court reported in Ram Dihal Dubey v. Gajraj Upadhiya, the learned Judge came to the conclusion that the present suit should have been filed in the revenue court and that the revenue court could grant the relief sought in the present suit. In view of this finding the appeal was allowed, the decree of the court below was set aside and the plaint was ordered to be returned for presentation to the proper court. Against the order of the learned Additional Civil Judge plaintiff has come up in appeal.

The sole question which is to be decided in this appeal is whether the nature of the present suit is such that it could not be properly entertained by the civil court. Section 242 of the U.P Tenancy Act directs that.

“all suits…. of the nature specified in the fourth schedule shall be heard…. by a revenue court and no court other than a revenue court shall…. take cognisance of any such suit…. or of any suit…. based on a cause of action in respect of which relief could be obtained by means of any such suit….”

The plea set up in defence is that the relief claimed by the plaintiff is in substance on that, could very well be claimed either by means of a suit under section 59 or section 183. First of all, therefore, it has to be seen whether the relief claimed in substance, though not in form is a relief which could be claimed in a suit filed under section 59 or section 183 of the Act. So far as the latter section 183 is concerned, it seems to me that on the allegations in the plaint there is really no room for doubt that section is wholly inapplicable to the case. In the present case the plaintiff does not directly or indirectly make any allegation about his wrongful ejectment; nor does he say that he has been prevented from obtaining possession of his holding. It seems to me, therefore, that the only substantial point to be considered here in this connection is whether the present suit could or could not be brought under the provisions of section 59 of the Tenancy Act. Section 59 deals with declaratory suits by tenants when a declaration is sought against the landholder to the effect that the claimant is a tenant in whole or in part of the holding in suit. In the present case the facts alleged in the plaint and the relief as worded initially, or as it stands after amendment, do come in substance to this that the plaintiff's status as a tenant has been adversely affected by the so-called consent decree, dated 15th September, 1942, passed in suit No. 407 of the revenue court. The plaintiff consequently seeks a declaration in substance, though not in form, that he is still a tenant of the plots in suit. It has been repeatedly held by this Court that in order to determine the true nature of the relief claimed in a suit the pith and substance and not the form in which the relief may be couched has to be considered. Reference might be made to a very recent decision of this Court in Ram Kuer v. Iqbal Narain Singh which was decided by this very Bench in which the same principle was affirmed, Keeping that principle in mind, it seems to me quite clear that the real relief which the plaintiff seeks in the present suit is a declaration of his status as a tenant of the plots in suit. I am, therefore, of the opinion that the present suit is one which is contemplated by section 59 of the Tenancy Act. It follows, therefore, that it could certainly be filed in the revenue court. Furthermore, it follows that section 242 of the Tenancy Act read with section 59 definitely bars the jurisdiction of the civil court to entertain the present suit. The principle followed in the case of Ram Dihral Dubey v. Gajraj Upadhiya, and the principle followed by us in case of Ram Kuer v. Iqbal Narain Singh clearly apply to the present case.

Lastly, I may refer to the Full Bench decision of this Court in Fateh Singh v. Gopal Narain. The principle laid down by the Full Bench in this case no doubt supports the view taken by the learned Judges. There can be no doubt that the plaintiff by means of the present suit wants in substance a reversal of the decision of the revenue court given in suit No. 407 on the 15th of September, 1942. For, such a purpose the plaintiff must go to the revenue court.

For the reasons given above I agree with the view of the law taken by the lower appellate court. I would therefore uphold the order of the lower appellate court and dismiss the appeal with costs.

Bind Basni Prasad, J.:— I agree and wish to add a few words. There can be no doubt that the plaintiff instituted a suit to obtain a declaration of his tenancy right, which is the relief contemplated by section 59 of the U.P Tenancy Act, 1939. In the plaint as originally filed the relief claimed, was as follows:

“It may be declared that the plaintiff along with defendants Nos. 7 to 9 are the occupancy tenants and that defendants Nos. 1 to 3 have no concern with the plots in dispute and that the fraudulent consent decree dated the 15th September, 1942, obtained on the alleged confession of the plaintiff is null and void and ineffectual against the plaintiff.”

This relief was in clear words one for the declaration of tenancy rights, but when the plea of jurisdiction was raised it was amended so as to ask for a declaration that the consent decree dated the 15th September, 1942, is null and void and of no effect against the plaintiff. As observed by us in Ram Kuer v. Iqbal Narain Singh in determining the jurisdiction of the court we should see to the pith and the substance, of the relief and not to its form. In that case also the relief was for a declaration that a certain decree obtained against the plaintiff through the revenue court was fraudulent. We followed the earlier decision of Ram Pihal Dubey v. Gajraj Upadhiya.

Learned counsel for the appellant has invited our attention to an unreported decision of a learned single Judge of this Court in Kaliash Nath Tewari v. Audhesh Singh. That was a case in which the plaintiff was the purchaser of certain fixed-rate tenancy plots and he claimed a declaration against a rival vendee that the sale was of no effect against him. It was held that the suit was cognisable by the civil court. In arriving at this finding the learned Judge remarked as follows:

“In the case before me there is no dispute between the landlord and the plaintiff that it is a fixed-rate holding, nor has the landlord ever accepted rent from the defendant and refused to, accept rent from the plaintiff.”

In the present case however there is a clear dispute between the present plaintiff and the “landholder.” The expression “landholder” which occurs in section 59 of the U.P Tenancy Act is defined in sub-section (11) of section 3 as one to whom rent is or, but for a contract express or implied would be payable. In the present case defendant No. 4 is the usufructuary mortgagee of the zamindari belonging to 1 defendants Nos. 5 and 6 and it is defendant No. 4 to whom rent is at present payable. He is, therefore, a landholder. It is from the defendant No. 4 that the plaintiff's rival tenants defendants Nos. 1 to 3 have derived title. Defendant No. 4 is supporting defendant Nos. 1 to 3. There is thus a clear dispute in the present case between the plaintiff and the landholder and it cannot be said that the landholder is not, in any way concerned with the present dispute. The suit therefore falls clearly under section 59 of the U.P Tenancy Act, and would also dismiss the appeal with costs.

Appeal dismissed.