Shankar Sahai v. Din Dial

Sir John Edge, C.J:— The plaintiff brought his suit in the civil Court for a declaration of title to trees and produce of trees, and for damages. The plaintiff alleged that the trees and the fruit were his property, and that they had been wrongfully distrained and sold by the zamindars, and wrongfully purchased and taken possession of by the defendants, Din Dial and Har Dial. He joined as a defendant one Tula, who was or had been a tenant of the land on which the trees were. The Munsif on the question of jurisdiction held the suit was maintainable in the civil Court. The learned District Judge was of a different opinion, and on appeal dismissed the suit on the ground that the prohibition contained in s. 93, cl. (f) of the Rent Act (XII of 1881) barred the jurisdiction of the civil Court. I have, I may say, very great respect for the opinion of the particular District Judge, but I think in this case he hardly appreciated the position of the parties who were before him in the suit. I do not think it necessary to consider whether or not the civil [414] Court would have jurisdiction to try this suit if it had been brought against the zamindar as zamindar and distrainer. Here we have a plaintiff who says that his property has been wrongfully sold and wrongfully taken possession of by the two principal defendants, in fact the two defendants who have appeared in the suit. In my opinion it does not matter whether those defendants who were sued here for having wrongfully purchased and taken possession of what is alleged to be the plaintiff's property, were the zemindars or distrainers or outsiders. I cannot find anything in ss. 83, 85 or 93 of the Rent Act to deprive a civil Court of the general jurisdiction which it has under s. 11 of the Code of Civil Procedure, to hear and determine a suit in which a man says, “my property has been wrongfully converted and taken possession of by the defendants who purchased it.”

In my opinion this is nothing more or less than a civil suit maintainable in the civil Court. Pandit Sundar Lal has relieved us of the necessity of considering whether the suit, so far as the fruit was concerned, was a Revenue Court suit or a civil Court suit. He has on behalf of his client the plaintiff expressly withdrawn the claim in respect of the fruit. As to the trees not being distrainable, this Court has already previously held on more occasions than one that trees are not subjects of distress. I am of opinion that the appeal should be allowed, the case remanded under s. 562, Civil Procedure Code, to the Court of the District Judge, to be disposed of by the Judge on the merits. Costs will abide the result.

Straight, J.:— The plaintiff in the suit to which this appeal relates, in execution of a decree against two persons of the name of Parshad and Rattan, attached certain trees belonging to his judgment-debtors and upon the 23rd December 1882, those trees were sold and purchased by one Jawahir Ahir, who, in turn, for good consideration, assigned them over to the plaintiff, and that is his title.

Subsequently, in the year 1886, Pershad and Rattan having disappeared from the land of which they have been in occupation, and one Tula having been placed in occupation of that land by Din Dial and Har Dial, the zamindars, they, upon the 5th January, 1886, [415] purporting to act under the distress chapter of the Rent Act, attached 45 of the trees that had been purchased by the plaintiff in 1882 with the fruits thereon, and on the 9th February, 1886, those trees and the fruits were sold and purchased by these defendants for a sum of Rs. 5-8-0 and annas 8 respectively. The plaintiff in the present suit asserts that he was unaware of that sale, and he now comes in, in the civil Court for a declaration of his proprietary title to the 45 trees so distrained and sold, and for the value of the fruits appropriated by the defendants. The latter question is not now before us, and I need not discuss or deal with it.

There were a variety of pleas taken by the defendants to the plaintiff's claim; among others a plea that this was a suit exclusively within the cognizance of the Revenue Court, and that not having been brought in the Revenue Court the plaintiff could not succeed, and accordingly his claim should be dismissed.

The Munsif, as a Court of first instance, was against that view, and, after discussing all the matters connected with the litigation, came to the conclusion that the plaintiff was entitled to recover in respect to 40 trees, and have a declaration of his proprietary title, as well as to receive Rs. 5, the price of 150 guavas misappropriated by the defendants. There was then an appeal to the District Judge; and he was of opinion that the case was instituted in the wrong Court; that if instituted at all, it should have been in the Revenue Court, and he laid great stress upon cl. (f) of s. 93, Rent Act, as read in conjunction with the first paragraph of that section, which excludes the jurisdiction of the civil Court.

As I said in the order of reference, so I repeat now, that unless this suit is prohibited by any positive statutory provision, the civil Court must take cognizance of it. It is immaterial and unnecessary to discuss any question with regard to the plaintiff's right to damages. The case, therefore, stands before us as simply one in which the plaintiff seeks a declaration of his proprietary title to 45 trees which were purchased by the defendants on the 9th February, 1886. Is that, then, a suit for “contesting the exercise of the powers of distress conferred on landholders and others by this Act,” [416] or is it a suit for contesting “anything purporting to be done in the exercising of the said power,” or is it a suit “for compensation for wrongful acts or omissions of a distrainer?”

Now, on former occasions in dealing with this section, I took occasion to say that in my opinion cl. (f) of s. 93 must be read in reference to, and as limited by, what appears in the preceding chapter relating to distress. It cannot be suggested for a moment seriously that trees upon land are capable of distraint as being within he definition of “standing crops and other ungathered products of the earth,” which are liable to distress within the meaning of s. 61, Rent Act, and it could only be in reference to things capable of distress that the provision of chapter IV of the Rent Act could have any application. In every respect the plaintiff's claim appears to me to be one that does not fall within the four corners of the Rent Act. Takng s. 83, upon which so much stress has been laid by the learned Judge, it is clear to my mind that s. 83 contemplates cases in which, prior to a sale having been ordered to take place under a distress, a party comes in and seeks to induce the Court to stay its hand; and that this is so is abundantly clear from the orders that the Court may make; as the statute says his right may be tried “in the same manner and under the same conditions as to the time of instituting the suit and to the consequent postponement of sale, as a person whose property has been distrained for an arrear of rent alleged to be due from him may institute a suit to contest the demand.” When we come to look at the following clauses of the section as to what orders can be made, I find nothing to show that those orders when made would preclude a person from coming into the civil Court to have his title declared. It is only necessary to add that this case does not in my opinion fall within s. 86, Rent Act.

I am therefore of opinion that the order proposed by the learned Chief Justice is the right order, and I would decree this appeal, and, reversing the decree of the learned Judge, I would remand the case for disposal upon the merits.

Brodhurst, J.:— I also concur with the learned Chief Justice.

[417] Tyrrell, J.:— I concur with the remarks of the learned Chief Justice and my brother Straight.

Mahmood, J.:— I also concur in the conclusion at which the learned Chief Justice has arrived in this case, and also in what I regard as the turning point of the decision of this case as stated by my brother Straight. I am, however, anxious to indicate the main features of the reason which have induced me to concur in the order which has been made.

Now, the facts of the case and the nature and scope of the suit are well described in the judgment of the Court of first instance, and their general and important effect has also been already stated by my brother Straight in his judgment, and as to that I wish to add nothing. What, however, seems to me necessary to state is that I attach a very liberal and vast interpretation to the general terms of s. 11 of the Code of Civil Procedure, for purposes of determining the question whether or not suits which are, as a matter of fact, instituted in the civil Court are or are not cognizable by such tribunals. I have before now said that s. 11 is of vast scope including even what are known as rent-suits or suits cognizable by the Revenue Court, but for the circumstance that such suits, though civil in their nature, are expressly excluded from the jurisdiction of the civil Courts by dint of some special statutes.

In the present case, the solitary statute which has ever been referred to, either by the learned Judge of the lower appellate Court, or in the course of the argument of the case before us in the Full Bench, has been the Rent Act, with special reference to some of its clauses. It is, therefore, relying on that statute that it has been contended that the civil Court has no jurisdiction to entertain this suit at all. In dealing with that matter I, wish to call especial attention to the preamble of that enactment, which limits the scope of the whole of that statute to purposes of amending the law by saying that its object was to “amend the law relating to the recovery of rent in the North-Western Provinces of the Presidency of Port William in Bengal.”

[418] I have held before now that in cases of doubt, and in the absence of express provision to the contrary, the preamble must be taken in restricting and governing the rest of the enactment. In this case I may safely say that the preamble has not been transgressed by anything that the enactment provides in the subsequent sections of which it consists.

Reading the enactment in this light, ss. 83, 84 and 85 upon which so much emphasis was laid by the learned Judge of the Court below, seem to me to provide, what my brother Straight has called a summary remedy, which cannot debar any other remedy which the law allows under the general enactment such as s. 11 of the Civil Procedure Code. I have also before now said that where the law provides two or more remedies, there is no reason to think that the one debars the other; and therefore both must be understood to remain open to him who claims a remedy such as, a tribunal of the class that the civil Court is, is called upon to award.

Viewing the case and the points raised therein in this light, the solitary question of importance here seems to me to rest entirely upon the interpretation of cl. (f) of s. 93 of the Rent Act, and reading that clause as I have repeatedly done, I have no doubt that it does not debar the ordinary remedy open to a person claiming ownership of immoveable property such as the trees claimed in this case, and does not prevent such property being made the subject of civil suit.

Pandit Sundar Lal has withdrawn the claim so far as it relates to the fruit of the trees in dispute, and as to that, I, following the example of my brother Straight, will not say any thing further. No process of court such as the Rent Act contemplates can oust the jurisdiction of the civil Courts in suits relating to title to immoveable property. When such a dispute arises over an action pretended to have been taken under some clause or other of that enactment, and is contested upon the ground that the purchaser has purchased nothing, the civil Court is not debarred from saying that process was wrongfully issued, and that the purchaser [419] under it acquired no title, and that the original owner continued to be the owner and could maintain the action.

I shall add nothing beyond saying that I agree in the order that the learned Chief Justice and my brother Straight have made in this case.

Cause remanded.