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damages and a claim for establishment of title may not be combined with
a claim based on the first paragraph of s. 9 of Act No. I of 1877. As to
the claim for damages we are of opinion that the decree below is right.
The crops were sown by a person in possession and who had been in
possession for many years. The defendant illegally turned that man out
of possession, illegally, in the sense that he did not employ the assistance
of a Oivil Court or a Court of revenue, but seized and dealt with the crop
as if it was his own. The result is that, so far as the decree i merely
for possession, the decree of the first Court must stand, as there is no
appeal from that decree allowed by law. So far as the decree is one for
damages, no case is made out here for our setting it aside, but, so far as it
may be treated as a decree establishing the plaintiff's title, we set it aside
and we dismiss the plaintiff's suit ao far as it is a suit asking for the estab-
lishment of title. There will be no costs allowed to either side in this Court.
To the above extent, i.e., on the question of title, the appeal is allowed.

Decree modified.



966



YII] TARAPAT OJHA V. BAM RATAN KUAR IS All. 388

ISA 387 P B ) = 13 A W.N. (1893) 164.

[387] FULL BENCH. JUNES.

Before Sir John Edge, Kt , Chief Justice, Mr. Justice Tyrrell, FULL

Mr. Justice Knox, Mr Justice Blair, Mr. Justice Burkitt and

Mr. Justice Aikman. tJEKCH.

- 15 A. 387

TARAPAT OJHA AND OTHERS (Defendants] v. EAMEATAN KUAR

Also oTHhHs (Plaintiffs).* [S.h June, 1893.] 13 A - W > N

MQQO\ \R&

Act XII of '881, s. 93, 95 els. <m ani n) Landlord and tenant Jurisdictkn Civil
and Rrvtnue Courts.



No suit will lie against a landlord in a Civil Court for the wrongful disposses-
. sion of a tenant f mtn a h Iding to which Act No. XII of 1881 applies.

Where a plaint in a Civil Court alleges facts which, if true, would show that
the dispute or matter involved in the suit was one to which s. 93 or s. 95 of Act
XII of 1881 would apply, ihe plaint should be. rejected under cl. (c) of s. 54 of
the Code of Civil Procedure, or possibly in some cases returned under s. 57 of
the same Code.

The plaintiff-! alleging themselves to be occupancy-tenants and to have been
wrongfully dispossessed by their landlords, who had made a lease of the land in
suit, aued the landlords and the lessees of such landlords for recovery of posses-
sion and for daungf-. Weld that such suit was exclusively crgnizable by a
Court of Revmut . Shimthu Narain Singh v. Bachcha (1) approved.

[Affirmed, 18 A. 270= 16 A.W.N. 59 ; R., 10 O.C. 23 (27) ; D., 19 A. 452 (454) ]

THIS was a rf fatence to a Full Bench of the whole Court made by a
Bench consisting of E igr, C. J., and Aikman, J. The facts of the case
wero as follows :

In this case the plaintiff, who were cultivators, residents of a village
in the Ballia district, brought this suit in the Court of the Subordinate
Judge against the zemindars of the village and the zemindars' lessees to
recover possession of certain land upon the following allegations : -That
the land in suit, which was situated in a dayara, was their ancestral culbi-
vatory holding : that it had at one time become submerged by the river,
but had re-appeareri in 128? F.; that after its re-appearance, at the time of
the recent settlement, the defendants, second party, in collusion with the
patwari, got possession of the land and took a lease of it from the defen-
dants, first party, and obtained mutation of names in their favour. The
plaintiffs nrayed for possession of the land in suit, for damages and costs.

[388] Both ssts of defendants filed written statements in which they
denied all the allegations of the plaintiffs, and further pleaded to the
jurisdiction of the Civil Court to entertain the suit.

The Court of first; instance held that as the relation of zemindar and
tenant was not admitted by the parties to exist between them, the juris-
diction of the Civil Court was not ousted : and it proceeded to try the suit
On the merits and decreed the plaintiffs' claim.

The defendants appealed, taking the same objection to the jurisdiction
of the Civil Court as they had taken in the Court of first instance.

The District Judge taking the view of the question of jurisdiction
which had been held by the Court below, after referring issues to the
lower Court on the subject of the time when the land became submerged

* Second Appeal, No. 1262 of 1889, from a decree of P. W. Fox, Esq., Additional
District Judge of Ghazipur, dated the llth April 1889, modifying a decree of Byed
Akbar Husain, Subordinate Judge of Ghazipur, dated the 1st September 1888.

(1) 2 A. 200.

967



15 All. 389



INDIAN DECISIONS, NEW SERIES



[Yol.



1893

JUNE 6.

FULL
BENCH.

A 38?

(F.B.I =
13A.W.N.
(1893. 164.



and the subsequent entries in the Eavenue papers, ultimately confirmed
the decree of the lower Court.

The defendants, first party, then appealed to the High Court.

Munshi Jwala Prasad, Mr. J. Simeon and Munshi Madho Prasad,
for the appellants.

Mr. T. Gonlan and Pandit Sundar Lai, for the respondents.

The judgment of the Courb (Edge, C. J., Tyrrell, Knox, Blair,
Burkitt and Aikman, JJ.) was delivered by EDGE, C. J.

JUDGMENT.

The suit in which this appeal has arisen was brought by the plain-
tiffs in the Court of the Subordinate Judge of Ghazipur for possession of
a cultivatory holding, for cancellation of a Settlement order, for invalida-
tion of a lease granted by the first six defendants to the second set of
defendants, and for damages against the second set of defendants for
wrongful dispossession. The plaintiffs allege that they were occupancy-
tenants of the first set of defendants and that they had been wrongfully
dispossessed by the defendants, and that the second set of defendants
claimed title, as alleged lessees under the first set of defendants. The
first Court gave the plaintiff a decree for possession and for a por-
tion of the damages claimed. The second Court in appeal confirm-
ed the decree for possession but dismissed the claim for damages.
The defendants have appealed. [389] The question raised in appeal
by the defendants is as to whether the Civil Court had jurisdiction to
entertain the suit in respect of any portion of the claim. The question
was referred to the Full Bench. The contention on behalf of the defen-
dants is based upon s. 95, els. (ra) and (n) of Act No. XII of 1881. A
large number of authorities have been cited in the course of the argument
commencing with Raghobar Misser v. Sital (1) ; Abdul Aziz v. Wall
Khan (2) ; Shimbu Narain Singh v. Bachcha (3) ; Muhammad Abu Jafar
v. Wali Mnhammad (4); Sukhdatk Misr v. Karim Chaudhri (5> ; Antu
v. Ghulam Muhammad Elian '6) ; Ganga Ram v. Beni Ram (7) ; the
Maharaja of Benares v. Angan (8) ; Sheodish Narain Singh v. Rameshar
Dial (9) ; Hari Das v. Gopi Rai (10) ; Mahosh Rai v. Ghundar Rai (11).
We do not think it necessary to discuss at length in our judgment those
cases. There has been a tendency on the part of certain Judges to hold
in casea similar to the present case that unless the relationship of land-
lord and tenant is admitted on the pleadings between a plaintiff and
defendant in a suit the Civil Court must necessarily have jurisdiction.
On the other hand, other Judges have held that where the real dispute or
matter between the parties was one in respect of which a suit under s. 93
of Act No. XII of 1881 might be brought or on which an application
under s. 95 of that Act might be made and the plaintiff alleged in his
plaint that the relationship of landlord and tenant or of tenant and land-
lord existed between him and the defendant, the jurisdiction of the Civil
Court was ousted and the matter was one solely within the jurisdiction of a
Court of Eevenue. We may say, without going through those authorities,
that we agree with the judgment of Turner, J., and Pearson, J., in the case
of Shimbhii Narain Singh v. Bachcha (3). Applying s. 95 of Act No. XII



(1) N W.P.H.C.B. 1875, 228.
(4) 3 A. 81.
(7) 7 A. 14P.
(10) 6 A.W.N. (1886) 137.



(2) 1 A, 338.

<5> 3 A. 521.

(8) 7 A. 112.

(11) 13 A. 17.



(3) 2 A. 200.
(fi) 6 A. 110.
(9) 7 A. 188.



968



VII] TABAPAT OJHA V. BAM BATAN KUAB 15 All. 391

of 1831 to this case, we are of opinion that no suits will He against a land- 1893
lord in a Civil Court for the wrongful [390] dispossession of a tenant from a JUNE 6.
holding to which Act No. XII of 1881 applies. The wording of the first
paragraph of s. 95 is not only wide, but is clear and specific, and it excludes FULL
the jurisdiction of any Court except the Court of revenue from taking cogni- BENCH,
zance of any dispute or matter on which an application under els. (ra) or
(n) of that section might be made. That section constitutes the Court of IS * 387
Revenue, the sole Court competent to decide any such dispute or matter (F.B.) =
and consequently the order of a Court of Revenue on an application under l3 A.W.N.
els. (m } or >'n) is final and cannot be interfered with or questioned in any (1893) 161.
suit in a Civil Court. In Shimbhu Narain Singh v. Bacha (1) that point
was decided on the corresponding section of Act No. XVIII of 1873 It
was there held by Turner, J., that a Civil Court had no power to review
an order passed under cl. (n) of s. 95 of Act No. XVIII of 1873, and by
Pearson, J., that a decision on an application under cl. (n) of s. 95 of Act
No. XVIII of 1873 operated as res judicata, and was not open to re-
adjudication in a Civil suit. The Court of Revenue could not make its ordei
under cl. (n) of s. 95 of Act No. XII of 1882, without deciding whether
the tenancy alleged subsisted and whether there had been a wrongful
dispossession.

Those would not be subsidiary issues, but they would be the valid
issues to be determined by the Court of Revenue to whose exclusive
jurisdiction, as the Court of first instance in all such cases, the determin-
ation of tha dispute or matter was confined. The same observation applies
to a claim of a person alleging himself to be a tenant for damages against
a person alleged by the complainant to be his landlord for wrongful dis-
possession. That dispute or matter is confined to the exclusive jurisdic-
tion of the Courb of Revenue. Where a plaint in a Civil Court alleges
facts which, if true, would show that the dispute or matter involved in
the suit was one to which s. 93 or s. 95 of Act No. XII of 1881
applied, the plaint should be rejected under cl. (c) of s. 54 of the Code
of Civil Procedure, or possibly in some cases returned under s 57
of the same Code. In cases to which s. 93 or s. 95 of Act No. XII
of 1881 applies, a denial by a defendant that the relationship
[39 1] of landlord and tenant exists between the parties is immaterial,
except in so far as it raises an issue for the Courb of Revenue to determine.
So far therefore as this was a suit against the first set of defendants who
wore al : eged by the plaintiffs to be their landlords, the suit must be
dismissed ou the ground that the Civil Court bad no jurisdiction to enter-
tain it. Now as to the second set of defendants, there ia nothing in
s. 95, cl. (n} of Act No. XII of 1881 to limit the application for the recovery
of the occupancy of land of which a tenant has bean wrongfully dis-
possessed to an application against his landlord. Turning to 8. 210 we
find that where a tenant makes an application under cl. (n) of s. 95 of
Act No. XII of 1881 against; his landlord he may join in that application
as a defendant any person in possession of the holding who claim* title
under his landlord, whether that person was or was not a party to the
wrongful dispossession by fche landlord of the tenant. It thus appears that
in an application under cl. (n) a person may be made a defendant who was
no party to the act of wrongful dispossession, but in that case such person
can only be joined if he claims title through the landlord. Section 95 of
Act No. XVIII of 1873 and s. 95 of Act No. XII of 1881 differ essentially

(1) 2 A. 2CO.

969
A VII 122



15 All. 392



INDIAN DECISIONS. NEW SERIES



[Yol,



1893

JUNE 6.

FULL
BENCH.

ISA 387

(F.B.) =
13 A.W.N.
(1893; 164.



in these respects from cl. (6) of s. 23 of Act No. X of 1859. Clause (6)
of s. 23 of Acb No. X of 1859 gave the Collector who was the Court of
Bevenue no jurisdiction to assess compensation for the wrongful disposses-
sion, and it limited jurisdiction to order a re-delivery of possession to cases
in which the ryot, farmer or tenant had been illegally ejected by the per-
son entitled to receive rent for the land or farm In our opinion the
policy of Act No. XII of 1881 is that all questions concerning the right of a
tenant, as such, of an agricultural holding arising out of the relationship
of tenant and landlord should, except so far as an appeal to a Civil Court
is expressly allowed, be within the exclusive jurisdiction of the Courts of
Revenue, whether the dispute was between the tenant and the landholder
or between the tenant and any one claiming under the landholder. We are
consequently of opinion that the subsidiary question of damages claimed in
this suit against the second set of defendants, who are alleged by the plaintiffs
to [392] have been parties to the wrongful dispossession and to he claiming
under the plaintiff's landlords was one within s. 95 in respect of which
an application under cl. (m) of that section might be made. Ou the other
hand, where a tenant has been dispossessed by a person not claiming title
through the tenant's landlord, the tenant's remedy for possession and
damages is by suit in the Civil Court, as in such a case it might be
necessary for the tenant to prove not only his own title from the landlord,
but the landlord's title to let. For these reasons we are of opinion that the
suit as against the second set of defendants, not only for possession hut in
respectof the damages, fails on the ground of want of jurisdiction of the Civil
Court. The other relief claimed in this suit was a decree cancelling an order
of a Settlement Officer and a decree ordering a lease granted by the first set
of defendants to the second set to be invalid. A Civil Court has no juris-
diction to cancel an order of Settlement Officer by decree in a civil suit.
The validity or invalidity of the lease as against the plaintiffs would
depend on the finding of the Court of Re venue as to whether a tenancy
was subsisting between the plaintiffs and the first set of defendants. As
the appeal was referred to the Full Bench on the question of jurisdiction,
and as our decision on that question disposes of the respondents' suit,
we allow the appeal, and dismiss the suit with costs in all Courts.

Appeal decreed.



15 A. 392 = 13 A.W.N. (1893) 146.
REVISIONAL CRIMINAL.
Before Mr. Justice Aikman.



QUEEN-EMPRESS v. MATABADAL.* [13th June, 1893.]

Criminal Procedure Co3e, a. 476 Order by Magistrate j 'or prose cation under s. 195 of
the Indian Penal Coda Preliminary inquiry

When a Magistrate takes action under s. 476 of the Code of Criminal Pro-
cedure, it is not necessary to the validity of his order that he should hold a preli-
minary inquiry. Boperam Surma v. Oouri Nath DuU (Ij followed.

[P., 34 A. 267 (268)=9 A.L.J. 231 = 13 Cr. L.J. 141 = 33 Ind. Gas. 829.]

THE facts of this case sufficiently appear from the judgment of
Aikman, J.



Criminal Revision No. 279 of 1893.
(1) 20 C. 474.

970



YII] GANGA PRASAD V. NARAIN 15 All. 394

[393] Mr. J. Simeon, for the applicant. 1893

The Government Pleader (Munshi Ram Prasadj, for the Crown. JUNE 13.

JUDGMENT. R 77i-

AlKMAN, J. The applicant in this case was convicted by the Joint SIGNAL
Magistrate of Allahabad of an offence punishable under s. 193 of the Indian CRIMINAL-.
Pena/ Code aud sentenced to four months' rigorou? imprisonment, which
conviction and sentence wera upheld in appeal by the Sessions Judge. He * s A. 392 =
applies to this Court for revision. The first ground in the application is 131.W.N.'
that there was no sanction for the prosecution under s. 195 of the Code (1893) 146.
of- Criminal Procedure. This was a case which was instituted under the
provisions of s. 476 of the Code of Criminal Procedure by the Magistrate
before whom the alleged offence was committed, and, this being so, s. 195
of the Code does not apply. Even had sanction been necessary, this
would have afforded no ground for interference, as it is not -shown
that the want of sanction occasioned any failure of justice. iSee
s. 537 of the Code of Criminal Procedure). The next ground in the applica-
tion is that the conviction is bad, inasmuch as no inquiry was held by the
Magistrate under s. 476. I entirely concur with the opinion expressed
by the Calcutta High Court in a recent case, Baperam Surma v. Gouri
Nath Duit (1), to the effect that it is not necessary for the validity of an
order under 3. 476 that there should be a preliminary inquiry. The
petitioner was convicted of having made on oath two contradictory and
irreconcilable statements. It is objected in the third ground of the
application that thera is no evidence on the record to show which of the
two statements was false. It is unnecessary that there should be any
such evidence. Ifc is now settled law that there may be a conviction in
the alternative without any such evidence. The contention that the
sentence is too severe is without force. I am of opinion that the applicant
deserves the punishment he got. The application is rejected.

Application rejected.



15 A. 394 = 13 A.W.N. (1893) 145.

[394] REVISIONAL CKIMINAL.

Before Mr. Justice Aikman.



GANGA PRASAD (Applicant) v. NARIAN AND OTHERS.
(Opposite parties) * [13tb June, 1893.]

Criminal Prcc'dure Cole, ss, 145,146 " Tangible immoveable property " Standing
crops Attachment Civil and Revenue Courts Jurisdic'iin.

Standing crops are " tangible imcnoveable property" within the meaning of
s. 145 of the Code of Criminal Procedure. Cheda Lai v. Mul Chmi (2) and
Madayyav. Yenkaia (3), followed.

8 146 of the Code of Criminal Procedure does not give jurisdiction to pass an
order of attachment in a dispute between parties whose rights regarding suob
dispute would have to be determined by a Revenue Court.

[R., 14 C.L.J. 515 = 16 C W.N. 510 (547) ; 11 Ind. Gas- 729.]

THIS was a reference under s. 438 of the Code of Criminal Procedure
made by the Sessions Judge of Azamgarh moving the High Court to revise
an order under s. 146 of tha said Code passed by a first class Magistrate of

* Criminal Revision No, 310 of 1893.
(1) 20 0, 474. (2) 14 A. 30. . 3) 11 M, 193.

971



15 All. 395



INDIAN DECISIONS, NEW SERIES



[Vol.



1893

JUNE 13.

EEVI-
SIONAL

CRIMINAL,

IS A 894 =
13 A.W N.
(1893) 143.



the Azamgarh district. The facts of the case sufficiently appear from the
Judgment of Aikman, J.

JUDGMENT.

AlKMAN, J. In this case there was a dispute between a landholder
and certain tenants. The landholder asserted that he had ejected the
tenants from certain fields and that the crops growing in certain of the
fields had been shown by him. The tenant?, on bhe other hand, denied
that they had been ejected, and claimed the crops as grown by them. The
landholder applied to the Criminal Court to have the tenants bound over
to keep the peace. The Magistrate before whom the case came took no
action underChapter VIII of the Code of Criminal Procedure, but, consider-
ing that the case was one of a dispute as to immoveable property, and being
unable to satisfy himself us to which of the parties was in possession of
the property, attached the crops on the land under the provisions of s.146
of the Code of Criminal Procedure. The learned Sessions Judge, being of
opinion that the Magistrate's order was illegal, has reported the case to this
Court, The Sessions Judge considers that the Magistrate's order dealing with
the standing crops-is illegal, inasmuch as, in his opinion, a standing crop is
not immoveable property. I do not consider that the view of the learned
Sessions Judge in this respect is correct. In order to give the Magistrate
jurisdiction under s. 145 he must be satisfied of the existence of a dispute
[395] likely to cause a breach of the peace " concerning any tangible im-
moveable property or the boundaries thereof." The expression " tangible
immoveable property " has taken the place of the words "any land or any
houses, water, fisharies, crops or other produce of land," which occurred
in the corresponding section, viz., 530 of the Code of 1872. It is clear
that under that Code the Magistrate could interfere in a dispute regarding
crops. I do not think that the substitution of the expression "tangible
immoveable property" in the present Code has taken away the right of
interference as regards standing crops. The Code of Criminal Procedure
contains no definition of the words "immoveable property," but these
words have been defined in s. 2, cl. (5) 6 of the General Clauses Act (No.
I of 1868) ; and that definition has been held both by this High Court
and the Madras High Court to include standing crops. (Sea I.L.R , 14
All. 30 and I.L.B., (11 Mad. 193). There was nothing there-
fore in the fact of part of the property regarding which the dispute
existed, being standing crops, to deprive the Magistrate of juris-
diction. The learned Sessions Judge further points out that the
Magistrate omitted to make the order in writing which is required
by the first paragraph of s. 145 of the Code of Criminal Procedure.
I consider that this defect in the Magistrate's procedure might have been
got over by reference to the provisions of s 537. There is a more serious
defect in the Magistrate's proceedings, and that is, that there is no-hing
on the record to show that he was satisfied that a dispu'e existed likely
to cause a breach of the peace. He must be satisfied of the existence of
such a dispute before he can take action under s. 145. I am, moreover,
doubtful as to whether the Magistrate could, in this case, take action
under s. 146. That section runs as follows : " If the Magistrate decides
that none of the parties is then in such possession, or is unable to satisfy
himself as to which of them is then in such possession, of the subject of
dispute, he may attach it until a competent Civil Court has determined
the rights of the parties thereto, or the persons entitled to possession
thereof." Thip, as .has been stated, was a case of dispute between a
landholder and his tenants and such a dispute [396] would have to be



YII] LIAQAT ALI V. KARIM-UN-NISSA 15 All. 397

determined, nob by a Civil, bat by a Ravenue Court. The Code in 1893
other places, as, for instance, in B. 476 distinguishes between Oivil and JUNE IS.
Revenue Courts, and as only a Civil Court is mentioned in s. 146, I am of
opinion that that section does not give jurisdiction to pass an order of RKYI-
attachment in a dispute between parties whose rights would 4ave to be SIGNAL
determined by a Eevenue Court. CRIMINAL

For the above reasons I quash the order of the Magistrate, dated, the
28fch of March, 1893. If the Magistrate is of opinion that there is any IS A. 394 =
probability of a breach of the peaca, he ought to exercise the preventive 13 A.W.N.
jurisdiction with which he is invested by Chapter VIII of the Criminal (1893) 14&.
Procedure Code.



5 A. 396 = 13 A.W.N. (1893) 167.

APPELLATE CIVIL.
Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Burkitt.



LIAQAT ALI AND OTHERS (Defendants] v. KARIM-UN-NISSA AND OTHERS

(Plaintiffs)* [20th June, 1893.]
Muhammadan Law Legitimacy Acknowledgment.

Hdd that a Muhammadan could not by acknowledging him as his son
render legitimate a child whose mother at the time of his birth be cnuld not; have
married by reason of her being the wife of another man. Muhammad Alluhndad
Khan v. Muhammad Junail Klian (1), followed.

[P,, 34 B. Ill <114; = 11 Born. L B. 1117 = 4 Ind. G*s. 951 ; 7 Ind. Gas. 820 (837) ; 27
C. 801 ; R M 190 P.L.U. 1903 ; D., 9 C.W.N. 352.]

THE facts of this case are sufficiently stated in the judgment of the
Court.

Mr. Amir-ud-din, for the appellants,

Mr. Abdul Majid, for the respondents.
JUDGMENT.

EDGE, C. J., and BURKITT, J. The suit in which this second appeal
has arisen was brought by Musammat Karim-un-oissa and her two
daughters, Musammat Rahiman and Musammat Aziman, against the
widow of Muhammad Ali, deceased, and his surviving [397] legitimate
children, to obtain a decree for possession of certain shares in immoveable
property, which immoveable property had belonged to Muhammad Ali. The



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 142 of 155)