SHANTI SARUP DAS Vs. ASHARFI SINGH

JUDGEMENT

(1.) This is a defendant's second appeal arising out of a suit for the demolition of a building and for a permanent injunction to restrain the defendant from making any construction in future upon the plot in suit. There was a fixed-rate holding of 16 bighas belonging to one Jangi within the municipal limits of Benares. After Jangi's death the holding passed to his widow, Mt. Phulani. On 15 June 1936 Mt. Phu- lani sold 2 biswas of this holding to the defendant. We shall have occasion later on to particularise the main allegations in the plaint, but for the present it will suffice to say that in brief the plaintiff's case was that the defendant was unlawfully constructing a building on this plot of 2 biswas. He accordingly instituted this suit for a mandatory and for a prohibitory injunction. The defence, so far as it is necessary to state it for the purpose of this appeal, was that the defendant had committed no act which was detrimental to cultivation, that he had not in any way altered the nature of the land, as alleged by the plaintiff , that in any event the plaintiff was not entitled to have the construction demolished and that the civil Court had no jurisdiction to try the suit. The trial Court found against the defendant and decreed the suit, and that decree has been affirmed in appeal by the District Judge. The first plea taken before us on behalf of the defendant- appellant is that it was the revenue Court and not the civil Court which had jurisdiction. In this connexion learned Counsel for the defendant-appellant relies upon Section 230, Agra Tenancy Act (3 of 1926), which reads as follows: Subject to the provisions of Section 271, all suits and applications of the nature specified in Schedule 4 shall be heard and determined by the revenue Courts, and no Courts other than a revenue Court shall, except by way of appeal or revision as provided in this Act, take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which adequate relief could be obtained by means of any such suit or application.

(2.) There is also an explanation to the section, which we shall have occasion to refer to at a later stage of this judgment. Learned Counsel's first contention is that the suit out of which this appeal has arisen lay to the revenue Court under Section 85 of the aforesaid Act : vide Group A, Serial No. 3, Schedule 4. Now in the previous Act, that is to say, Act 2 of 1901, a fixed-rate tenant, in common with other tenants except permanent tenure-holders, was liable to ejectment under Section 57; and Section 65 provided that, in addition to or in lieu of suing for ejectment, the landholder might sue for compensation or for an injunction with or without compensation if his cause of action rested upon any of the grounds set out in Clause (b) or (c) of Section 57. In Act 3 of 1926, the law was altered and a fixed-rate tenant became exempt from ejectment. In order to understand Section 85 of Act 8 of 1926, we must first look at Section 84. The last-named section provides for the ejectment of a tenant for an act detrimental to the land which he holds or inconsistent with the purpose for which it was let or for breach of a condition of the contract between him and his landholder; but the section specifically excludes fixed-rate tenants, as well as permanent tenure-holders from its operation. Section 85, which learned Counsel for the defendant-appellant claims to be applicable reads as follows: 85. (1) A decree for ejectment under Section 84 may direct the ejectment of the tenant either from the holding or from such portion thereof as the Court having regard to all the circumstances of the case, may direct. (2) Such decree may further direct that if the tenant repairs the damage, or pays such compensation as the Court thinks fit within one month from the date of the decree, or such further time as the Court may, for reason to be recorded, allow, the decree shall not be executed except in respect of costs. (3) Notwithstanding anything contained in this section a landholder may, in addition to, or in lieu of suing for ejectment, sue : (a) for compensation, or (b) for an injunction with or without compensation, or (e) for the repair of the damage or waste, with or without compensation.

(3.) Learned Counsel for the defendant-appellant concedes - as in fact he must concede - that Clause (1) and (2) of this section refer only to decrees passed under Section 84, from the operation of which fixed-rate tenants are excluded. But he pleads that Clause (3) of Section 85 applies to all tenants, including fixed-rate tenants, and therefore the suit lay in the revenue Court under Sub-clause (b) of Clause (3) of this section. In our opinion there is no force whatsoever in this plea. The words "notwithstanding anything contained in this section...." leave no doubt in our mind that what was meant by the Legislature was that while the landlord was at liberty under Section 84 to sue for a decree for ejectment such as is referred to in Clauses (1) and (2) of Section 85, he might also add a prayer in his suit under Section 84 for one of the reliefs mentioned in Clause (3) or he might sue exclusively under Section 84 for one of such reliefs or for a combination of them. The words "in this section" show clearly that Clause (3) of Section 85 is referable to Section 84 equally with Clause (1) and (2). A fixed-rate tenant having been specifically exempted from ejectment by Section 84, it is obvious that the provision in Section 85 which allows a landholder to sue for injunction etc., in lieu of or in addition to suing for ejectment can have no application whatsoever to a fixed-rate tenant. It is thus clear that a suit under Schedule 85 of Act 3 of 1926 was not competent.