ASHARFI SINGH Vs. CHANDRIKA PRASAD KUARI

JUDGEMENT

(1.) The questions of law that arise for decision in the present appeal are: (1) Whether a landholder is entitled to a mandatory injunction restraining a fixed-rate tenant from doing any act or omission detrimental to the land in his holding or inconsistent with the purpose for which it was let; and (2) Whether such a suit, if maintainable, is cognizable by the Civil or by the Revenue Court? There is no longer any dispute about the facts which have given rise to these questions. The facts are as follows: B. Asharfi Singh, plaintiff-appellant, is the proprietor of plot No. 2519 which was the fixed-rate tenancy of one Sarju. This plot is now included within the municipal limits of Benares. On Sarju's death the plot was inherited by his widow Mt. Ganeshi who sold the same to Shreemati Rajmata Chandrika Prasad Kunwari, defendant-respondent, on 22 December, 1916. The defendant, with a view to build a temple, laid foundation which has come to the plinth. The suit giving rise to the present appeal was then filed by B. Asharfi Singh for the following reliefs: (a) A decree may be passed and the defendant may be ordered to demolish the chabutra and building constructed on plot No. 2519 and to restore the said land, specified below, to its original condition within the time fixed by the Court. If she fails to do so, the building constructed by her may be demolished at her cost through the Amin of the Court and the said land may be restored to its original condition laid at Rs. 2400. (b) A perpetual injunction may be issued to the defendant restraining her from constructing on the said land, specified below, any temple or place of worship or building against the provisions of Section 3, Clause 11, Act 3(Tenancy Act) of 1926 laid at Rs. 100.

(2.) The defendant contested the suit inter alia on the ground that she had the right to make the constructions complained of and that, in any case, the suit was not cognizable by the Civil Court. These contentions of the defendant were overruled by the trial Court and the plaintiff's suit was decreed. But on appeal by the defendant the lower Appellate Court held that a landholder is not entitled to any relief against a fixed-rate tenant on the ground that the tenant has done an act or omission detrimental to the land in his holding or inconsistent with the purpose for which it was let. It accordingly held that a suit like the present was not maintainable either in the Civil or in the Revenue Court. On the question of jurisdiction raised by the defendant it held that, irrespective of the question whether the suit was cognizable by the Civil or the Revenue Court, it was in view of the provisions of Section 269, Agra Tenancy Act (3 of 1926), bound to entertain the appeal. In the result, in view of its finding that the suit was not maintainable, it allowed the appeal of the defendant and dismissed the plaintiff's suit. The plaintiff has come up in appeal to this Court and it is contended on his behalf that the decision of the trial Court was correct and ought to be restored. In our judgment this contention is well founded and ought to prevail.

(3.) When the present case engaged the attention of the Courts below the questions under consideration were not covered by any authority. Both the Courts below wrote remarkably good judgments and gave reasons in support of the conclusion arrived at by them. But since the decision by the lower Appellate Court, and during the pendency of the appeal in this Court, the points that arise for decision in the present appeal were decided by a Division Bench of this Court in Kashi Kahar V/s. Asharfi Singh In that case Asharfi Singh, who is the appellant before us, was the plaintiff and had brought a suit against another fixed-rate tenant for identical reliefs. The defendant contested that suit on the ground that the Civil Court had no jurisdiction. The Munsif accepted this plea and directed the plaint to be returned for presentation to the Revenue Court. On appeal from the order of the Munsif the Appellate Court held that the Civil Court had jurisdiction and the suit was therefore remanded for disposal on merits. After the remand the Munsif decreed removal of the constructions and granted mandatory injunction restraining the defendant from doing any act inconsistent with the purpose for which the holding was let. The defendant appealed to the District Judge, but his appeal was dismissed. The defendant then appealed to the High Court and contended that the Civil Court had no jurisdiction to entertain the suit. This contention was given effect to by this Court and it was held that the suit was maintainable only in the Revenue Court. It was further held by this Court that "the suit for ejectment under Section 82 or for injunction under Section 85(3) would lie in the Revenue Court." With all respect we are unable to agree with this decision. In our judgment a landholder is entitled to a mandatory injunction of the nature prayed for in the present suit against a fixed-rate tenant, and the suit is cognizable not by the Revenue but by the Civil Court.