KULSUM-UN-NISSA BIBI Vs. DAURU NATH

JUDGEMENT

(1.) In this case the defendant appellant is the sole proprietor of Mauza Danpur in the Bulandshahr District. The plaintiffs-respondents are residents of that village. Their suit was for recovery of possession in respect of a particular plot of land, one bigha 15 biswas in area, situated in this village, from which they alleged themselves to have been wrongfully ejected by the defendant. The precise date of the alleged dispossession is not given in the plaint, but the plaintiffs dated their cause of action from an adverse decision of the Revenue Court on the question of mutation. The disssession clearly took place somewhere towards the close of the year 1909. The case as stated in the plaint may be summarised thus. The plot of land in question was originally owned by one Param Sukh, from whom it descended to his grandsons, Baldeo Das and Tula Ram. Tula Ram predeceased Baldeo Das and the latter died somewhere about the year 1885. The plaintiffs are distant cousins of Baldeo Das and Tula Ram, claiming descent from Durga Das, own brother of the father of the said Baldeo Das and Tula Ram. The plaintiffs nevertheless asserted that they were members of a joint undivided Hindu family with Baldeo Das and Tula Ram, so that the plot of land in question passed to them by survivorship on the death of Baldeo Das. They admitted, however, that, in the village records, whatever rights had belonged to Baldeo Das were entered after his death as belonging to Musammat Sundar, the widow of his predeceased brother, Tula Ram. They said that this was done with their consent for the consolation" of this lady. In the plaint as drafted they clearly intended to claim that Musammat Sundar was not really in possession, except in so far as she enjoyed a Hindu widow s right of maintenance out of the joint family property. Musammat Sundar died in the year 1909 and the defendant, as proprietor of the mahal, took possession of the land in suit. The defendant s claim was that the land, in Musammat Sundar s possession at any rate, was a mere occupancy holding and that it escheated to the proprietor of the mahal because Musammat Sundar left behind her no heir entitled to succeed under Section 22 of the Tenancy Act (Local Act II of 1901). The plaintiffs said that they fought the matter in mutation before the Revenue Courts, but the decision there was against them. It is fair to note, however, that in the plaint itself the claim was put in an alternative form. In paragraph 5 of the plaint it is distinctly stated that Musamrmt Sundar had no right in the property in dispute. There is, however, an alternative plea, that if the lady was in fact in possession in her own right, then her rights were those of a Hindu widow and the property came to the plaintiffs on her death as the nearest surviving reversioners of her husband. The nature of the defence setup has already been sufficiently indicated. Before issues were fixed in the Court of first instance, the learned Munsif found it advisable to examine the plaintiff Chaube Dauru Nath, who made a statement on the 10th of February 1913 on behalf of himself and of the other plaintiffs. This statement was obviously interpreted by the learned Munsif as considerably modifying the pleas taken in the plaint. It has been read to us in detail, and I think the learned Munsif was substantially right in so regarding it. Undoubtedly the plaintiff Dauru Nath was anxious to hedge as far as possible and to evade the attempts made by the Court while he was under examination to tie him down to definite pleadings of fact on certain points. In substance, however, he did admit that Musammat Sundar obtained actual possession in 1885, on the death of Baldeo Das, and that she was in possession for 24 years until her death. He went on to explain that he himself and the other plaintiffs really managed Musammat Sundar s affairs for her and claimed to have been in joint cultivation with her of the land in suit. He said that the Court might regard his position with respect to this cultivation as that of a servant or as that of a partner; but I have no doubt he did intend to plead that he was sharing in the cultivation of the holding at the time of Musammat Sundar s death, within the meaning of Section 22 of the Agra Tenancy Act. The learned Munsif proceeded to fix a number of issues, of which he decided only two. The first of these was, "whether Musammat Sundar held the disputed plot in village Danpur as an occupancy tenant or as an absolute owner." The frame of the issue is, I think, justified by the fact that the plaintiff Dauru Nath in his statement before the Court had admitted Musammat Sundar s possession and had practically abandoned the plea put forward in the plaint that Musammat Sundar had never been in possession at all. On the issue thus framed the learned Munsif, after an elaborate discussion of the evidence and of the law which he considered applicable to the facts of the case, recorded a finding that the land held by Musammat Sundar was her occupancy holding and succession to the same was governed by the provisions of the Tenancy Act. This finding in itself was not conclusive against the plaintiffs unless and until the Court had gone on to determine the question of their alleged sharing in the cultivation of the holding at the time of Musammat Sundar s death. This the learned Munsif did not do, but he proceeded to take up another issue stated by him in the following terms: "Whether the suit is cognizable in the Civil Court." The issue is not very happily framed. The suit as brought was based upon a claim of proprietary right, and was undoubtedly cognizable in the Civil Court. Nevertheless it is sufficiently clear what the learned Munsif meant by this issue and what he has actually found in respect of it. If Musammat Sundar was an occupancy tenant of the land in suit the plaintiffs, supposing that they proved their case so as to give them a right to succession under Section 22 of the Tenancy Act, would have to prove that they were joint in cultivation with this lady at the time of her death. They were subsequently ejected by the defendant zemindar. They were, therefore, in the position of tenants ejected by the landholder otherwise than in accordance with the provisions of the Tenancy Act. That ejectment would give them a right of suit for recovery of possession and for compensation under Section 79 of the same Act, and inasmuch as they possessed that right of suit, the provisions of Section 167 of the Tenancy Act (read with reference to Section 79 aforesaid and serial number 30 in group (c) of the suits specified in the 4th Schedule to the same Act) would debar the plaintiffs from bringing a suit for recovery of possession in the Civil Court. This is what the learned Munsif obviously intended to find and has in substance found; and he dismissed the plaintiffs suit accordingly. The latter appealed, and I shall have a few remarks to make presently regarding the position taken up by them in the memorandum of appeal. At present what I wish to notice is that in the interval between the filing of the appeal and its determination, there had been a decision by this Court in Second Appeal No. 1456 of 1918, decided on the 17th of July 1914. This decision was laid before the lower Appellate Court and obviously determined the result of the appeal in that Court. It was another suit from the same village and the present defendant-appellant as proprietor of the village was a party to it. The other parties were different, and it has never been suggested that the decision had in any way the effect of res judicata upon the present litigation. It was, however, a decision respecting a plot of land held on substantially the same tenure as the land in dispute in the present case. The point for determination, however, was not quite the same in the suit which resulted in Second Appeal No. 1456 of 1913. The holder of the land had mortgaged it. The mortgagee brought a suit upon his mortgage. obtained a decree, brought the mortgagors rights to sale and purchased them himself. While these proceedings were going on the mortgagor relinquished his rights, whatever they might be in favour of the proprietor of the village. On the strength of this relinquishment the proprietor succeeded in obtaining possession. The suit was by the mortgagee auction-purchaser for recovery of possession. The point which the Court had to determine was whether the rights of the mortgagor in the property in suit, whatever those rights might be, were or were not transferable. In that case the finding of the lower Appellate Court had been that the mortgagor s rights were those of an occupancy tenant and were not transferable. In appeal this finding was treated by this Court as a mixed question of law and of fact. The learned Judges who disposed of the appeal set forth in their judgment a statement of what were represented to them as being admitted facts with regard to the previous history of the land in suit. From those facts they drew an inference, as a point of law, that the rights of the mortgagor in the land then in question were proprietary rights, that the payments which the mortgagor had admittedly been making to the proprietor of the village could not properly be described as "rent" within the meaning of the definition in Section 4, Clause (3), of the Tenancy Act, and that consequently there was no question of the existence, of tenancy, but the rights of the mortgagor being proprietary rights were transferable. On these findings the plaintiff s suit was decreed. In the present case the learned Subordinate Judge has accepted this decision as a ruling laying down principles on which he was bound to act. He does not seem to have considered whether the recital of admitted facts in the decision of this Court to which he was referred as a ruling did or did not agree with the facts alleged by the parties and proved by the evidence in the present case. He did, however, give a brief recital of certain facts regarding the previous history of the land in suit, which is correct enough as far as it goes. On these facts he recorded a finding in the following terms: That Param Sukh and Baldeo, &c, were not occupancy or non-occupancy tenants of the disputed plot but that they were owners thereof. The so-called rent which they have been paying is in reality the Government revenue and cesses." He went on to say that even if those persons be supposed not owners of this land, they could not be said to belong to any of the classes of tenants specified in Section 6 of the Tenancy-Act. He found that they were something more than tenants," and that their rights were transferable as well as heritable. On these findings he held that the suit was not barred by Section 167 of the Tenancy Act but was maintainable in the Civil Court as brought. He was of opinion, however, that there remained other issues which ought to be tried out before the suit could either be decreed or dismissed. He accordingly treated it as having been dismissed by the Court of first instance upon a preliminary point and remanded it to that Court under Order XLI, Rule 23, of the Code of Civil Procedure, for decision on the merits. The defendant comes to this Court in appeal against this order of remand.

(2.) Two comments may be made at once on the finding of the learned Subordinate Judge. The first is that a finding to the effect that the rights of Param Sukh and Baldeo in the land in suit were proprietary rights was scarcely open to the learned Subordinate Judge in appeal. I have carefully considered the memorandum of appeal presented to that Court by the plaintiffs and it seems clear to me that the claim of proprietary rights was abandoned and was not intended to be pressed in the Court of first appeal. In the first paragraph the plaintiffs stated their case to be that Baldeo Das had held transferable rights of occupancy" in the land in dispute. In the second paragraph it is pleaded that Musammat Sundar was not a mere tenant under Act II of 1901, the aforesaid land has nothing to do with Act II of 1901." There is nothing else in the memorandum of appeal to modify the position here taken up. The finding, therefore, which was really open to the lower Appellate Court was the alternative finding that the plaintiffs are something more than, tenants, and this finding is based upon a certain finding of fact and an inference drawn therefrom. The finding of fact is that the rights possessed by Param Sukh and Baldeo were transferable as well as heritable. The inference drawn therefrom is that persons possessing such rights cannot be tenants within the meaning of that word as used in what for the purposes of this case is the critical section, namely, Section 79 of the Agra Tenancy Act, It is clearly open to us, therefore, to re-consider this question of the existence or otherwise of a tenancy as a mixed question of law and of fact in the present appeal.

(3.) The other comment which may be made at once on the finding of the lower Appellate Court is that it does not warrant the further decision of the learned Subordinate Judge to the effect that the suit is not barred by Section 167 of the Tenancy Act. The finding is limited to Param Sukh and Baldeo, &c." I do not quite understand what the learned Subordinate Judge meant by &c," but it is clear that he did not consider the question of the rights of Musammat Sundar. The defendant no doubt contended that Param Sukh and Baldeo and all other holders of similar tenures in this village were nothing more than occupancy tenants, but for the purposes of this suit she raised most distinctly a further plea as to the position of Musammat Sundar. She pointed out that under no apparent principle of law could Misammat Sundar have succeeded by inheritance to the rights of Baldeo Das, the brother of her deceased husband. From this the defendant desired to contend, that the possession of Musavin at Sundar at any rate was merely permissive on the partof the zemindar and that, although she was an occupancy tenant of this land at the time of her death, she had only become so under the ordinary law in virtue of her long possession. This point was not determined by the lower Appellate Court, although it required to be determined before there could be a definite finding on the question whether the suit was or was not barred by Section 167 of the Tenancy Act.