MAHANT DAYALPURI Vs. NARAYAN DUTT

JUDGEMENT

(1.) I do not see my way to interfere in this case. The first point on which the plaintiff relies, namely, that he is entitled to resumption under Section 154 of the Tenancy Act turns to my mind upon a pure question of fact. That question has been determined against him by both the Courts below. The question that remains is, inasmuch as the suit is alternatively for assessment of rent, whether he brings himself within Section 15b of the Tenancy Act. Undoubtedly if he brought himself within Section 156 he would be entitled to assessment of rent. That question depends upon whether the defendants satisfy the conditions of Section 158. As to this point I feel considerable difficulty. The facts are not in dispute. They are clearly set out in the judgments of both the Courts below. The question, I think, really turns upon whether, under the peculiar circumstances of this case, this land can be properly said to have been held by two successors of the original grantee within the meaning of Section 158. The first Court which is the Revenue Court held that it could. The lower Appellate Court obviously entertained considerable doubt as to whether in the circumstances of this particular case there having been survivorship in the joint Hindu family, that could be said to come within the expression succession." I think it is the duty of a Court of Law, specially in a matter which is after all more a matter of settlement and revenue than strict law in the sense of determination of rights of litigants or redress of wrongs, to take a broad and liberal view, if it is possible. I am quite conscious that, inasmuch as it was thought necessary to come to this Court to get a decision that the word successor" included a transferee, in affirming the decision of the lower Appellate Court I am putting upon that word a meaning which may be regarded as elastic, if not extravagant. But it is to be borne in mind that this is legislation, which at any rate was intended to deal with all persons in the same position, under the same circumstances and with the same results, that is to say, to put them on the same footing. In the absence of any language appropriate to the position and nature of survivorship in the case of a joint Hindu family, the result of holding otherwise would be practically to strike these provisions out of an Act of Parliament so far as Hindu joint families are concerned. I quote an observation from the judgment of the Court below: If a survivor is not held to be a successor it is difficult to see how there can ever be two survivors to the original grantee in the case of a Hindu." I agree with that observation and, therefore, hold with some hesitation that the construction put upon the section by the-lower Appellate Court is justified and is a correct construction. If it is wrong, the plaintiff s remedy is clearly for assessment of rent under Section 156 and I should have had to send the case back for that assessment to be made. Similarly holding as I do that the case is covered by Section 158, I should have had to send the case back, apparently in accordance with decided cases to which I have been referred, to the District Judge to determine the revenue. But as has been pointed out by Dr. Sunder Lal on behalf of the respondents, the assessment which has already been made has been adopted by the Assistant Collector who decided this case in the first instance; all, therefore, which is left for me to do is to affirm the decision of the Assistant Collector and to dismiss this appeal with costs.

(2.) I may just refer to the point which Dr. Sunder Lal argued with considerable force, apparently not realizing that there were decisions against him by one Judge if not by two. Whatever view I may have been inclined to take upon this question (and there seem to me many questions in this difficult Act of Parliament about which it is possible to bold two different opinions with great confidence within five minutes of one another) I am prepared to follow, if not absolutely bound by, the decision of Mr. Justice Banerji, which by implication was adopted by the learned Chief Justice in Sunder Singh v. Collector of Shahjalianpur 11 Ind. Cas. 514 : 8 A.L.J. 539 : 33 A. 553. A similar decision appears to have been given by my brother Banerji in answer to a reference from the Board of Revenue in the year 1907. It must, therefore, be taken to be the law in this Court, until those authorities are overruled, that an appeal in such a case as this lies to the District Judge. The appeal is, therefore, dismissed with costs.