JIWANDHAR ZHIBLAJI Vs. BAKARAM PARASRAM KUNBI AND OTHERS

JUDGEMENT

(1.) PLAINTIFF Jiwandhar files this appeal under Letters Patent against the decision of Gruer J. in Second Appeal No. 514 of 1937, wherein it was held that plaintiff's tenancy was extinguished by the adverse possession for more than two years exercised by defendants 2 and 3 Khair Mohammad and Sheikh Ismail and that he had no title to sue and claim possession of the holding in suit. Plaintiff Jiwandhar claimed to be an occupancy tenant of the field No. 3 of mouza Sonora, Tahsil Bhainsdehi, having succeeded to it as the heir of his uncle Nathuji, who died in 1924. When Nathuji died the plaintiff-appellant was in the Punjab. He returned to Sonora in 1928 and found that the landlord Bakaram had taken possession of the holding, and had placed the defendants Khair Mohammad and Sheikh Ismail in possession thereof. Appellant Jiwandhar thereafter took action under Section 100, C.P. Tenancy Act, against the landlord alone. Khair Mohammd and Sheikh Ismail were not joined as parties to this proceeding. The appellant obtained an order for reinstatement on 16th May 1930, and under a warrant of possession was put in possession on 25th March 1933. Why the plaintiff did not take possession between the date of order (16th May 1930) and the date of possession (25th March 1933) is not explained in the case. The warrant of possession mentioned that the plaintiff should be placed in possession as against the landlord or any other person. This does not appear to be under any prescribed form. Why the Court used the words 'or any other person' is not known. Plaintiff-appellant alleged that he remained in possession till 31st May 1933, when he was dispossessed by Khair Mohammad and Sheikh Ismail. He therefore claimed to be restored to possession. In the pleadings the plaintiff did not admit that defendants 2 and 3 were created occupancy tenants of the field by the landlord. He pleaded that the landlord was in possession through defendants 2 and 3, who were his servants, and the lease in their favour was characterized as nominal and fraudulent. The defence of the contesting defendants was that on Nathuji's death the field was left uncultivated and rent thereof unpaid and therefore the landlord, in the absence of the plaintiff, entered upon possession, and while the land was thus the khudkasht of the landlord he let it out to defendants 2 and 3 in occupancy tenant right by receiving Rs. 100, as nazarana in 1927. They urged that the decision in proceedings under Section 100 was not binding on them as they were not parties to the same and that plaintiff never obtained any possession against them. They claimed to be in adverse possession of the holding and pleaded that even if plaintiff entered upon possession formally on 25th March 1933, he had before that time lost his tenancy by the adverse possession of these defendants for more than two years and could not obtain possession against them: they were entitled to retain possession against the plaintiff who has no title as a tenant. The plaintiff contended that the defendants were aware of the proceedings under Section 100, C.P. Tenancy Act, and he was placed in possession by virtue of a warrant which was directed against the landlord or any other person. It was contended that they were barred by the order passed against the landlord, as they derived title through him and could not therefore claim to have extinguished plaintiff's tenancy by adverse possession.

(2.) THE defence prevailed in the trial Court, but plaintiff succeeded in the first appellate Court. In second appeal, Gruer J. held that plaintiff's tenancy was extinguished and that defendants 2 and 3 were not barred by the order passed behind their back in proceedings under Section 100, and that plaintiff's tenancy was extinguished by the adverse possession of defendants 2 and 3. It is against this decision that the Letters Patent appeal is filed.

(3.) IT was strenuously argued on behalf of the plaintiff-appellant that he successfully established his tenancy against the landlord and succeeded in obtaining an order for reinstatement in his favour on 16th May 1930, and as this order of reinstatement was given effect to on 25th March 1933, when he was reinstated his non-possession before this date was of no consequence and did not enable defendants 2 and 3 to acquire title by adverse possession against his tenancy, which was established in the revenue proceedings, which were binding on the landlord and through him on defendants 2 and 3. This argument would have some force only if it could be held that the order was binding on defendants 2 and 3 though they were not parties to it. In order to succeed in showing that the order passed by the revenue Court bound defendants 2 and 3, the plaintiff has to establish two positions, viz., that the revenue Court was a Court of exclusive jurisdiction and that a civil suit was barred, and secondly that defendants 2 and 3 who claimed title prior to the commencement of the action by the plaintiff are nevertheless bound by the decision obtained against the landlord. Mr. Bobde advances both these arguments. He contends that the plaintiff's only remedy in 1928-29, was an application under Section 100, C.P. Tenancy Act, and that under Section 105, C.P. Tenancy Act, he could not have agitated that matter in a civil Court. We are unable to accept this argument. We agree with the decision of Hallifax A.J.C. in Ballabhdas v. Puna Bai A.I.R. 1925 Nag. 383 that Section 100, C.P. Tenancy Act, provides only a substitute in the case of a tenant under Section 9, Specific Belief Act, i.e., an alternative remedy which he may pursue or not at his option. Section 100 is not mentioned in Section 105, C.P. Tenancy Act, which bars the jurisdiction of civil Courts in certain matters. We cannot accept the argument that the jurisdiction of a civil Court is barred by the general prohibition contained in Section 105, C.P. Tenancy Act. A careful examination of Sections 100 and 105 and the schedule attached to the C.P. Tenancy Act makes this position clear. The C.P. Tenancy Act nowhere lays down that a tenant illegally ejected can be reinstated only by an application under Section 100 of the Act. In Schedule 2 attached to the Act, Article 1 provides limitation for a suit for possession of a holding by a person claiming to be a tenant from which he has been dispossessed or excluded from possession by any person. The case of an ejectment by a landlord otherwise than in accordance with this Act is clearly covered by the wide language of this article. Section 100 is thus only an enabling provision for a tenant who does not wish a final decision on the point of title but wants speedy recovery of possession in a cheap manner on the prima facie record of his tenancy. Revenue Courts have also taken the same view of the section: see Sarje Rao v. Mani 7 RR 11 where it is laid down that in a proceeding under Section 100 a revenue officer does not go into the question of title but merely concerns himself with the determination of the applicant's right to immediate possession. The provisos to Section 100 also make this point clear. We are of the opinion that the question of title could not be finally decided in the revenue case launched by the plaintiff against the landlord and that a civil suit was not barred by the provisions of Section 105. Plaintiff if he wanted to establish his tenancy could have instituted a civil suit under Schedule 2, Article 1, C.P. Tenancy Act, within the time stipulated without applying under Section 100 of the Act. The decision of the revenue Court is thus not res judicata in the present case : see Muhammad Ubidullah Khan v. Muhammad Abdul Jalil Khan A.I.R. 1937 All. 481. The argument that a judgment against the landlord binds tenants who derive title from him, which is based on some observations in Bigelow's Law of Estoppel, Edn. 6 p. 160, has no relevancy in this case. Moreover, tenancy in favour of defendants 2 and 3 was created before plaintiff took action under Section 100, C.P. Tenancy Act, against the landlord alone. The landlord had before that action created occupancy tenant right in favour of defendants 2 and 3. By an action under Section 100, C.P. Tenancy Act, only possession could be obtained but the same was with defendants 2 and 3 and not with the landlord. What was carved out in favour of defendants was not thus even touched by the action taken, and they cannot thus be bound by the action against the landlord. Gruer J. was right in relying on Abdul Alli v. Miakhan Abdul Husein (10) 35 Bom. 297 in this respect. It was argued that Abdul Alli v. Miakhan Abdul Husein (10) 35 Bom. 297 was a case of a gift and not a case of tenancy and therefore was not applicable to the facts of the present case. The principle underlying that case is that if an interest is carved out, whatever be the nature of the interest, in favour of C by A, B cannot by his subsequent litigation against A alone hold O bound. The occupancy tenancy carved out in favour of defendants 2 and 3 by the landlord was not of a flimsy nature. It was as irrevocable in several respect as a gift itself is as between donor and donee. We are of the opinion that defendants 2 and 3 are not bound by the order passed in the revenue case under Section 100 simply because their landlord was party thereto. In the circumstances of the case, we are of the opinion that the plaintiff was mistaken in applying under Section 100, C.P. Tenancy Act, against his landlord alone when the landlord was not in possession but had created bona fide occupancy tenants on the land. The plaintiff was ousted from possession by the landlord in 1926, when the landlord entered upon possession and thereafter by defendants 2 and 3 from the year 1927. When he applied under Section 100 defendants 2 and 3 were, on the facts proved, in possession of the holding and were claiming to be occupancy tenants thereof adversely to the plaintiff. His remedy was a civil suit against them in time under schedule 2, Article 1 of the Act, and not an application under Section 100, C.P. Tenancy Act, against the landlord who had already parted with possession. The adverse nature of the possession of defendants 2 and 3 which began in 1927 continued till the plaintiff disturbed it on 25th March 1933. Plaintiff's tenancy was extinguished by that adverse possession by this time as held in Kapoor v. Nanhi , Dadoo v. Sukha and Sujatkhan v. Seth Nazafali . This is the combined effect of Section 104, C.P. Tenancy Act, and Section 28, Limitation Act. His suit was thus rightly dismissed. The result is that this appeal fails and is dismissed with costs.