SUJATKHAN Vs. SETH NAZAFALI

JUDGEMENT

(1.) STAPLES , A.J.C. 1. Respondent 1 brought a suit for possession of an occupancy field and for ejectment of the appellant Sujatkhan. The suit was dismissed in the trial Court. On appeal however the decree was reversed and a decree for possession was passed in favour of the plaintiff-respondent. The defendant Sujatkhan has now preferred this second appeal. Respondent 1 is a malguzar and lambardar of the village, and the appellant and respondent

(2.) , Harlalsa, were occupancy tenants. In November 1927 Sujatkhan and the respondent Harlalsa agreed to exchange their holdings. The agreement was oral, but it was carried into effect and since then the exchange was effected and they were in possession of each other's holdings. The landlord Nazafali then brought the suit for possession of the holding occupied by the appellant Sujatkhan. The suit was brought in August 1930. The defences to the suit were that the jurisdiction of the civil Court was barred under Section 105(c), C.P. Tenancy Act, that the exchange was not required to be in writing or registered, and that there was a custom in the village by which tenants exchanged their holdings, and that the transaction was valid under Section 92, C.P. Tenancy Act. The trial Court held that the civil Court has jurisdiction, that such an exchange had to be by a registered dead and that there was no such custom of exchange in the village. The Sub-Judge further held that the transaction was not valid under Section 92, Tenancy Act, but that the plaintiff was not entitled to get possession, because, as the transfer or exchange was void, the defendant was in possession of the holding not as a trespasser, but with the consent and permission of. the real holder presumably as a licensee. 2. On appeal the District Judge held that this view was wrong, that although there was no valid transfer or exchange, each of the parties to the exchange did not become a licensee of the other, but that, as the exchange was put into effect, each held the newly acquired land adversely to the other. The District Judge further held that according to Section 104, Tenancy Act, read with Article 1, Schedule 2, as two years had elapsed, each of the parties to the exchange was barred by Section 28, Lim. Act, which the Judge held to apply, from recovering his original holding. It was held that the defendant had not title to the land in his possession and was a trespasser and that the landlord therefore had a right to eject him and to take possession. In second appeal the grounds again urged are that the civil Court has no jurisdiction and that Section 28, Lim. Act, does not apply to cases under the Tenancy Act. Some reference was also made to Section 92, Tenancy Act, and to Section 119, T.P. Act. It may be stated at once, I think, that neither Section 92, Tenancy Act, nor Section 119, T.P. Act, has any application to the present case. As noted by the Judge of the trial Court 8. 92 only applies to an exchange effected between a tenant and his landlord, and can have no application to a mutual exchange between two tenants, to which the landlord was not a party. Similarly Section 119, T.P. Act, which only lays down the rights of parties to an exchange inter se, and the remedy of the parties, can have no reference to the case of a third person, who is not a party to the exchange and who is not in any way bound by it.

(3.) THE other question, namely whether Section 28, Lim. Act, applies to cases under the Tenancy Act is not so simple, and there is some difference of authority in the matter. Kinkhede, A.J.C, in Banau v. Ranjitsingh A.I.R. 1926 Nag 99 has clearly held that 8. 28 does not apply in such cases; on the other hand, as noted by the District Judge, a different view has been expressed in a later decision of Findlay, J.C., in Rupusudan Pershad v. Nanku Pershad A.I.R. 1928 Nag 281. Findlay, J.C., relied in this matter upon the decision in Dalip Rai v. Deoki Rai (1899) 21 All 204, which was a case under the North-Western Provinces Rent Act, 1881, and which is analogous to a case under the C.P. Tenancy Act. I am of opinion that the view that Section 28, Lim. Act, applies to cases under the Tenancy Act under the provisions of Section 104 of the Act is correct; otherwise there is the anomaly of a person whose remedy to recover possession of his land is barred but whose title is not extinct. I would rely not only upon Dalip Rai v. Deoki Rai (1899) 21 All 204 in this connexion, but upon a case decided by the Privy Council in the year 1867 reported in Gunga Gobind Mundul v. Collector of the 24 Parganas (1867) 11 M I A 345 and also upon Nanda Kumar Dey v. Ajodhya Sahu (1912) 11 IC 465.