DAL CHAND Vs. NATHU LAL

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit brought by the plaintiffs who have now become the zamindars of the village under an auction purchase, for dispossession of the defendants and for recovery of possession and damages. The plaintiffs held a money decree against the previous zamindar and got the village attached on 19 February 1926. The attachment was presumably effected under Order 21, Rule 54, by which the judgment-debtor was prohibited from transferring or charging the property in any way. Certain lands were in the possession of tenants against whom ejectment proceedings in the revenue Court were taken by the then zamindar, resulting in their ejectment in May 1926. These tenants were paying Rs. 93 rent for the tenancy. On 27 July 1926 the zamindar whose village had been attached let in the defendants as tenants of those lands, on a rent of Rs. 20. He put them in as tenants under a written lease for one year, for which he had taken a nazarana of Rs. 500. The new Tenancy Act came into force in September 1926, under which ordinarily non-occupancy tenants became statutory tenants. The plaintiffs case was that the defendants possession was wrongful and that they were trespassers liable to be ejected by the civil Court. The defendants set up the lease granted by the zamindar, which was challenged by the plaintiffs on the ground that it was not genuine, and, in the alternative, that it was fraudulent and therefore not binding on the plaintiffs. Both the Courts below dismissed the plaintiffs suit holding that inasmuch as the defendants had become statutory tenants the civil Court could not entertain the suit. On appeal a learned Judge of this Court has come to the conclusion that on the admitted facts of this case the transaction of lease was a fraudulent transaction intended to defraud the probable auction purchaser. The circumstance that on receipt of Rs. 500 the rent was reduced from Rs. 93 to Rs. 20 was very significant, and so was the circumstance that the new legislation was expected to become law soon, under which non- occupancy tenants would become statutory tenants. It is also clear that if the agreement to pay only Rs. 20 as rent were upheld, then there could, under Section 50 of the new Tenancy Act, be no enhancement, except to the extent of Rs. 1-4-0 of the existing rent. Having regard to all these circumstances the learned Judge of this Court came to the conclusion that the parties entered into, this transaction with a view to defraud the present plaintiffs, who became purchasers afterwards. We must accept this conclusion.

(2.) The learned Judge has, however, set aside the decree of the lower Courts and sent the case back to those Courts for disposal according, to law. We think it necessary to make the legal position clear. The grant of lands to tenants in the ordinary course of management cannot be prohibited. The mere fact that the zamindar's estate is under attachment would not take away his authority to grant lands to tenants in the ordinary course of the management of the zamindary, so long as the interest in the estate has not passed on to auction purchasers. Such agricultural leases would not ordinarily be transfers of interest prohibited by 0.21, Rule 54, Civil P.C. It would be unfair to hold that once a share in a village has been attached the judgment-debtor must allow all lands in the village to remain vacant and should not let them to tenants because such letting may entail the consequence of their be-coming statutory tenants. The mere fact, that by operation of law tenants immediately become statutory tenants would not prevent zamindars from letting out lands and realising their rents from tenants, even though the estate itself is under attachment. On the other hand such a power cannot be allowed to be exercised so as to defraud the just rights of attaching creditors. We are therefore of the opinion that so far as the letting of the lands by the previous zamindar to the present defendants is concerned, it was valid and the defendant became lawful tenants of the lands and therefore under the new Tenancy Act subsequently became statutory tenants. But the contract of lease, particularly the terms under which they were liable to pay only a nominal rent of Rs. 20, was undoubtedly fraudulent, and inasmuch as it was intended to defraud the present plaintiffs, they are not bound by the terms of the lease.

(3.) The civil Court has jurisdiction to (grant a declaration that a certain document which exists was obtained fraudulently and is therefore not binding on a person whose rights it purports to affect; but the civil Court would not have jurisdiction to treat a person who is lawfully a tenant as a trespasser and order his ejectment when such a suit is barred from the cognizance of the civil Court under Section 230, Tenancy Act. The proper course for us to adopt therefore is to declare that the lease dated 22 July, 1926, which was granted by Sheo Prasad to the defendants, was fraudulent and is not binding on the plaintiffs at all, but that the defendants by having been let into possession of the tenancies, between agricultural tenants and therefore statutory tenants cannot be ejected by the civil Court. We may also mention that when the contract for the payment of Rs. 20 as rent has been set aside by us, the case is really one where persons have been admitted to occupation of land without any rent being fixed, so that there would be a liability to pay adequate rent under Section 45, Tenancy Act, which can be determined by the revenue Court which will also fix the proper rent. We accordingly allow this appeal, and setting aside the decrees of all the Courts grant the following declaration to the plaintiffs: The terms of the lease dated 22nd July 1926 are void as against the plaintiffs and in no way binding upon them; in particular they are not bound by the condition that Rs. 20 would be the rent payable. But we dismiss the claim for ejectment as the defendants are agricultural tenants.