SHRI KISHAN LAL Vs. BIJAI SINGH

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit brought by the land-holder for a declaration that the property in dispute, which is a grove land, was not liable to be sold in execution of a money decree against the landholder's grove-holder and for possession of the property. In substance the plaint is for the ejectment of the purchaser of the grove on the allegation that such a transfer was invalid and the land-holder was entitled to recover possession of the grove. The defendant pleaded that the grove was transferable as there was no custom prohibiting such a transfer. There was no plea taken that the civil Court had no jurisdiction to entertain the suit. The plaintiff however put forward the case that there was a custom prohibiting transfers of groves. The suit was instituted on 6 September 1927, after the coming into force of the new Tenancy Act, and the auction sale of the grove also took place shortly after the coming into force of the new Act. The first Court dismissed the suit but on appeal the lower appellate Court has given the plaintiff a decree against the auction-purchaser on the ground that there is a custom under which sales of grove are prohibited.

(2.) In second appeal the pokit is taken that the civil Court had no jurisdiction to entertain the suit. As the point goes to the root of the matter and is one of jurisdiction, and as an appeal would lie to the Commissioner if a suit were filed in the Revenue Court, we are bound to lentertain this objection if it is valid. The question of costs however is another mat?ter. In Section 3(2), Agra Tenancy Act, land" means land which is let or held for agricultural purposes, or as grove-land or for pasturage. It is clear that a grove under the new Act is land with?in the meaning of the Act. It is also clear that under Section 197 (a) a grove-holder is a non-occupancy tenant. It follows that under Section 3, 01. (8) a grove is a hold? ing. On the plaintiff's own showing there is a custom under which transfers are prohibited, with the result that no transfer can take place under Section 197 (b). It follows that the holding would be non?transferable under Section 33 and also under Section 34 of the Act. It then follows that according to the case put forward by the plaintiff there has been a transfer in con?travention of the two sections and it is therefore void under Section 34 (l). But Section 82 provides that if a tenant transfers his holding or any portion thereof con?trary to Sub-section (l), Section 34, both he and any person who may have obtained pos?session of the whole or any portion of of the holding in pursuance of any such attempted illegal transfer, shall be liable to ejectment at the suit of the land?holder, and to every such suit both the tenant and the transferee shall be made parties.

(3.) It is therefore obvious that if Section 82 were applicable to the transfer of a grove in execution of a decree and were not confined to voluntary transfers by the tenant, the land-holder can sue both the tenant and the transferee in the Revenue Court. It would then follow that ade?quate relief could be claimed in the Re?venue Court. As a suit for such relief would be expressly provided for in 8. 82, no other Court but the Revenue Court can take cognizance of such a suit. This is made clear by Section 230. The explanation to that section shows that if the cause of action is one in respect of which ade?quate relief might be granted by the Revenue Court, it is immaterial that the relief asked for from the civil Courts may not be identical with that which the Revenue Court could have granted. The learned counsel for the respondents how?ever contends that the provisions of Section 82 cannot apply to a sale in execution of a decree. There is no doubt that if the words were to be taken too literally, there may be some force in this conten?tion, but it seems to as contrary to the general policy of the legislature, as indicated is the various sections of the Act, to hold that there is a distinction between a voluntary and an involuntary transfer in Section 82. After all both are transfers of a tenant's holding and there is no reason why in the case of a voluntary transfer the land-holder should be bound to sue in the Revenue Court, whereas in the case of an involuntary or 3ompulsory transfer he should go to a civil Court. Under the new Act provision has been made for institution of suit3 by land-holders against tenants and their representatives in the Revenue Courts only.