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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 4 of 155)
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The Hon. T. Conlan, Mr. G. T. Spankie, and Mr. Amir-ud-din for 1889

the respondents. DEC. 5.

The case came for hearing bsfora Edge, G.J., and Brodhurst, J., who

passed the following order : FULL

" We refer this case to the Full Bench of five Judges, so far only as BENCH,

the question of the jurisdiction of the Givil Court is concerned. "

At the hearing before the Full Bench, Mr. G. T. Spankie, on behalf 13 * 17
of the appellants, withdrew the second and third prayers contained in the

plaint ; and the case was argued solely on the question whether the suit 10 A - W ' N -

was maintainable in a Oivil Court as a suit for a declaration that the land ( 189 ) 28S<
in dispute was the plaintiffs' sir land.


EDGE, C. J. In this case the plaintiffs are zamindars of a mahal,
and the defendants were admittedly tenants of the plaintiffs. I say
admittedly, because there is no question here of suing a trespasser. The
plaintiffs said that the defendants were their tenants, and the defendants
admitted that they were tenants of the plaintiffs. The only question be-
tween the parties was whether the'defendants were, as the plaintiffs said
they were, the shikmi tenants of the plaintiffs or the occupancy tenants
of the plaintiffs as the defendants alleged that they were. The question
arose on the revenue side. On that side it was decided in three different
appeals, ending with the Board of Revenue, that the defendants were
occupancy tenants of the plaintiffs. It is not material whether that point
was ever decided on the Revenue side or not : the question is, can this suit
be maintained in a Civil Court '? This suit which the plaintiffs have
brought, is in fact one the object of which is to get a declaration that the
defendants are not the occupancy tenants of the plaintiffs, but merely
their shikmi tenants, and, as leading up to that end, it is asked as part of
their prayer that it should be declared that the land which is cultivated by
the defendants is the sir of the plaintiffs. I say that that it is purely an
[21] incidental part of the prayer in this suit, because the suit really
turned on the question of the status of the defendants as tenants ; the
question of sir land or not is merely a matter incidental. The lower ap-
pellate Court on appeal went at great length into the evidence relating to
the land in question from the date of the settlement of 1840, and came to
the conclusion that the defendants were no' occupancy tenants, but shikmi
tenants. In fact the only point which the lower appellate Court did try
was the real point in dispute between the parties in the case, and that was,
what was the status of the defendants. The case came in second appeal
before my brother Brodhurst and myself. It was contended before us, as
has baen contended here to-day, that the suit is not one which is cogniz-
able by the Civil Court, and that it is a suit, if maintainable at all, for the
Revenue Court, and is not maintainable in the Civil Court.

It is quite clear to my mind that the effect of s. 95, cl. (a), and s. 10
of the Rent Act [XII of 1881] is to deprive the Civil Court of jurisdiction
to take cognizance of any suit the object of which is to declare, as between
the zamindars and tenants, the status of the tenants. Under s. 10 of the
Rent Act, the Collector is the person who has to decide whether a tenant
is a tenant at fixed rate or an ex-proprietary tenant or an occupancy
tenant, or whether ho is some other kind of tenant who has got no right
of occupancy, and under s. 95 of the Rant Act, that question is tied up
to the Revenue side, and a Civil Court has got no jurisdiction in the
matter. Mr. Spankie when the case came on to-day informed us on



1889 behalf of bis clients, the plaintiffs in the suit, that he abandoned that part
DEC. 5. of the prayer in the plaint which asked for a declaration that the entry in

the Kevenue record be set aside, and that part of the prayer which asked

FULL f or a declaration that the defendants were shikmis and not occupancy
BENCH, tenants. What remains then after such an abandonment? There

rTT" remains of the prayer really the incidental and tail end ; an incidental

' portion which could only be of importance where the plaintiffs were

10 AWN try i ng to obtain one or other of the declarations, the prayer for which

' ' ' [22] Mr. Spankie has abandoned. I do not think that in a case between

'a landlord and a tenant the landlord can come into the Civil Court and

can ask for a declaration that the land is his Sir, if the defendant is in

occupation of it ; because the only object of having such declaration

would be to get the Court in a roundabout way to say that the defendant

was not the occupancy tenant of the landlord. Further, I very much

doubt whether such an emasculated prayer as Mr. Spankie has put before

us here is one which could be brought under s. 42 of the Specific Belief

Act. The legal character of the plaintiffs as landlords is not denied ;

what are then their rights which they want a declaration in respect of ?

The only declaration would be a right to have it declared that it is their

sir land freed from the right of the defendants as occupancy tenants.

That is to decide that the defendants are not occupancy tenants, and that

is a question of tenancy, which is not one for a Civil Court, but for a

Revenue Court to decide.

Whether we look at this suit as it first came to this Court and as it
was referred to the Full Bench, or whether we look upon the suit as em-
asculated by the abandonment of the other prayers by Mr. Spankie, the
suit in either case is not maintainable in a Civil Court. I do not wish it
to be inferred that I have any doubt that a Civil Court has jurisdiction,
as between a zemindar and a trespasser, to decide whether land is sir or
not. But this is quite a different case. This is a case between persona
who are admittedly landlord and tenant. Tha real object of the suit is to
get a Civil Court to interfere with the jurisdiction of the Revenue Courts.
This case should be referred back to my brother Brodhurst and myself for
decision with an expression of opinion that the suit, as originally brought,
or in its emasculated form, is not one within the jurisdiction of the Civil

STRAIGHT, J. As I think it very desirable in this case with
regard to the question of the jurisdiction of the Civil and Revenue Courts
that the reasons for our decision should appear very clearly, I wish
to state what I understand the facts are out of which the suit now
before us has originated. It seems that in respect of the [23] land
to which it relates the defendants, so far back as the year 1862,
were recorded in the jamabandi as occupancy tenants, and that some-
where about 1288 fasli the plaintiffs first ascertained that this entry
stood in this way in the jamabandi. At or soon after that time the revi-
sion of the settlepient of this district was proceeding, and objection was
taken by the present plaintiffs to this entry in the jamabandi. That
objection was heard in the first instance by the Deputy Settlement
Collector, and he came to the conclusion that the land was, a.s claimed
by the plaintiffs, their sir land and that the defendants were in occupa-
tion of it as shikmis, and he proceeded to direct that the entires should be
amended accordingly. From that decision of bis, there was an appeal, as
by law provided, to the Settlement Officer Mr. Irvine, and he, after going
fully into the matter, upon the 13th August 1884, reversed the Deputy



Settlement Officer's decision, and held that the defendants were occu- 1889
pancy tenants and that the land to which the plaintiffs' application DEC. 5.
related was nob sir land. From his decision there was an appeal to
Commissioner, and the Commissioner upheld that view. From the FULL
Commissioner's decision there was an appeal to the Board of Eevenue BENCH,
and the Board took the same view, and accordingly in the jamabandi <a ~T~ 17
stands the names of the defendants as occupancy tenants at a particular
rate of rent. Having failed in all their proceedings in the Revenue Courts, * ' "J ~*
the plaintiffs then came into Court with the present suit, and by their '
plaint what they sought was to have it declared that the land claimed is ' '
the plaintiffs' sir ; that the defendants' allegation of adverse possession
set up by them was null and void ; that the judgment of the Revenue
Court so far as it is injurious to the plaintiffs' right be set aside and
of no effect, and that it should be decided that the defendants' possession
"is that of sub-tenants, which in no way injuriously affects their sir

To-day at the commencement of the argument of this reference,
which is concerned solely with the question of jurisdiction, Mr. Spankie
very ingeniously withdrew that portion of this plaint which in terms asked
for a declaration that the defendants were the shikmi tenants of the plain-
tiffs. For my own part it does not seem to me [24] that that with-
drawal alters the real nature and character of this suit, which, as any
one who reads the plaint carefully for a moment must feel, is nothing
more than a suit brought for the purpose of getting out of the adverse
orders passed by the Revenue Courts, and obtaining a declaration to the
effect that the land is of such a character that the defendants could not,
and cannot, be the occupancy tenants of that land. I quite agree with
what has been said that in order to oust the jurisdiction of the Civil
Courts there must be a clear declaration in the statute that the jurisdiction
of that Court is excluded. Whether 1 look upon this suit as a suit in the
nature of that to which s. 95 (a) would apply, viz., that it really involves
questions a consideration of which could be made the subject of an applica-
tion to determine the nature or class of the tenants' tenure, or whether
I regard it as of a different character and as assailing something done
by the Settlement Officer, it appears to me that it falls within a category
of cases as to which the jurisdiction of the Civil Court is specifically
and directly prohibited by law. Of course in all these cases language
can be found to put a plaint into such a shape as to make it appear
as if the suit was of a civil nature. But whether as dealing with
an application such as that which is mentioned in cl. (a), s. 95, or
making such an order as a Settlement Officer can make under s. 53
and the following sections, it must neces-arily be a part of that
officer's duty to ascertain, among other things, what was the nature of
the land in respect of which he had to declare the character of the
tenant's tenure. As I put the illustration to Mr. Spankie during the
course of the argument, so I repeat it now. Suppose a zamindar comes
into Court and seeks to eject a tenant upon the ground that he is an
occupancy tenant paying a specified rate of rent. The defendant says :
" I am not an occupancy tenant, but I am ex-proprietary tenant." Now,
for the purposes of determining whether the ejectment should be granted,
it would be the duty of the Revenue Officer to determine what
was the precise nature of the tenure. According as it was found
whether the tenant was an occupancy tenant or an ex- proprietary
tenant, so would the question of his baing an occupancy or an ex-pro-



1889 prietary tenant be set at rest. I asked Mr. Spankie whether a tenant,

DEO. 5, [25] against whom a Revenue Court had declared that he was not an

ex-proprietary tenant could go into the Civil Court to have it declared that

FULL he was an ex-proprietary tenant and that the land was once his sir land.

BENCH. Mr. Spankie says "Yes." I do not think he can. It seems to me

that would be inviting a Civil Court to take cognizance over a matter

ISA. 17 which is exclusively within the jurisdiction of the Rent Court. In this

(F.B.)= particular case the orders of the Settlement Officer were made in the

10 A.W.H. discharge of his duty as a Settlement Officer for the purpose of correcting
(1890) 235. fch Q jamabandi which is a portion of the record of rights, and in the course
of that duty it was his business to determine the class of the tenants'
tenure and the rate of rent payable by them. Looking at the case from
this point of view, it is in my opinion prohibited by s. 241, Land Revenue
Act, and the jurisdiction of the Civil Court is excluded in respect of such
a suit as the present. I concur in the order proposed by the learned
Chief Justice.

BRODHURST, J. I concur with the learned Chief Justice and my
brother Straight.

TYRRELL, J. I also concur with the learned Chief Justice and my
brother, Straight.

MAHMOOD, J. I also concur in the order made by the learned
Chief Justice in this case. I understand that the solitary question which
has been referred to the Full Bench in this case is whether or not, upon
the pleadings of the parties in this litigation and the frame of the suit,
and especially with reference to the prayers contained in the plaint, this
was or was not a suit cognizable by the Civil Court. To this solitary
question, which, as I said, is the one which we have to consider, I give an
answer in the negative. The relation of landlord and tenant is admitted
to exist between the parties to the suit, and the defendants-appellants
have obtained an adjudication from the Revenue Courts that they are
occupancy tenants. It is clear after having read the plaint in the suit
that the object of the suit was only of a declaratory character, especially
what the learned Chief Justice terms the emasculated plaint, which
is now before the Full Court after the withdrawal of the other [26]
reliefs by Mr. Spankie. The plaint so altered, and indeed without such
alteration, amounted to what ? It amounted to praying for setting
aside orders made by the Revenue Courts in the admitted exercise of their
jurisdiction as to the determination of the class of tenants to which this
suit in the Civil Court relates, which determination is also, as I have
already said, the object of the present litigation.

Dealing with the plaint in this manner, I have no doubt that it
was a plaint such as a Civil Court might have entertained, if it could
have entertained ib subject to the limitation contained in s. 11 of
the Civil Procedure Code itself. One of those restrictions involved
in that very section is the turning point of the answer which we
should give to the reference, viz., s. 95 of Act XII of 1881 of which
1 consider it important to consider the first paragraph, because
it is so worded as to include " any dispute or matter on which
any application of the nature mentioned in this section might be
made." And among them is cl. (a) of that -same section which says
" application to determine the nature and class of a tenant's tenure under
s. 10." Now s. 10 of the Rent Act undoubtedly contemplates applications
made by a tenant, and if the first part of s. 95 did indeed limit it to appli-
cations only by tenants for the purpose of determining the nature of their



tenure, then I should have some difficulty in holding that the general 1889
provisions of s. 11 of the Civil Procedure Code were limited. But s. 95 DEC. 5.
of the Eent Act places the matter upon a broader footing, a footing which
the learned Chief Justice has described, which might involve not only
applications such as s. 10 contemplates, but also all disputes or matters BENCH.
such as might be required to be considered by reason of the jurisdiction
which is thus exclusively given to the Revenue Court, or rather I should
call it the Eent Court. (F.B.) =

This being so, I have no doubt, and I agree with the learned ' J * <W -N<
Chief Justice in holding that it is a luatuer of no consequence what ^
the Revenue Courts have actually done in connection with the exer-
cise of jurisdiction as to the determination of the nature of the
[27] tenure which the defendants-appellants before us have in respect of
the land which forms the subject of the suit.

But what is important for me to state is that I also concur with the
learned Chief Justice in that part of his judgment in which he referred to
the provisions of's. 42 of the Specific Relief Act (I of 1877) as limiting,
restricting or formulating the jurisdiction of the Civil Courts for the pur-
pose of passing declaratory decrees in which no consequential relief was
prayed for. It is clear that the object of the suit was of a wholly decla-
ratory character. It did not pray for any consequential relief, even in the
shape of the ouster of the defendants, and obviously because no such
ouster could be claimed after the declaration by the Revenue Court as to
the defendants-appellants being the occupancy tenants of the land. There
could be no such claim of ouster upon the ground that the defendants
were trespassers, because the case admittedly is one between landlord and
tenant. That being so, it seems to me that, irrespective of anything in
the Rent Act, s. 95, cl. (a), and s. 10 of the same enactment, the case in
its present simple form could not be maintained.

Now this is the way in which I have dealt with the reference, and
I wish to make no further observation beyond pointing out that the
interpretation which I have placed upon ol. (a), s. 95 of the Rent Act,
and s. 10 of that enactment, as implying that all disputes between parties
to a litigation in which the relation of landlord and tenant is not only not
denied but actually admitted, as in this case, must be dealt with by the
Revenue Court under that enactment, is borne out by the preamble of
that statute to the exact terms of which I wish to call attention. I am
satisfied therefore that this was a suit not cognizable by a Civil Court,
and I agree in the order which the learned Chief Justice has made.




13QO ISA. 28 = 10 A W.N. (1890)216.



Before Mr. Justice Mahmood and Mr. Justice Young.


(Defendants) * [24bh June, 1890.]

! Mortgage Hypothecation Charge Lien Transfer of interest in immoveable properly

10 A. W.N. Construction of document Words" Ark " " Mustagh> aq " Power of sale in

(1890) 216. default Bona fide purchaser for value Without notice Rights of purchaser at sale in

exfcution of money decree Act IV of 1882 (Transfer of Property Act), ss.40, 58 (6),

69, 100.

In January 1883 a decree was obtained upon a bond executed in October 1875,
whereby certain immoveable property was made security for a loan, the transac-
tion being described not by the word "rehan" or mortgage, but by the words
" arh " and " mustaghraq" . The instrument contained no express covenant for
sale of the property in default of payment, but it contained a covenant prohibit-
ing alienation until payment. and a stipulation that, in the e*ventof the property
specified being destroyed or proving insufficient to satisfy the debt, the obligee
might realize the amount from the obligor's person and other property. The
decree directed the sale of the property as in the terms of an ordinary decree for
the sale of mortgaged property. In 1885, before any steps bad been taken in exe-
cution of the decree, the same property was sold in execution of a simple money-
decree against the obligor, and the purchaser obtained possession. It was found
as a fact that at the time of the sale, tho bond of October 1875, and the decree
thereon of January 1833, were not notified, but through no fault of the obligee
decree-holder, and that tho purchaser was a bonafide transferee for value without
notice of the bond and decree.

Held that the words "arh"An&"mustaghrag" used in the bond implied a power
of sale in default and denoted a mortgage without possession : that the transac-
tion, though entered into prior to the passing of the Transfer of Property Act (IV
of 1682), must be regarded as amounting to a simple mortgage as defined in
s. 58 {&) of that Act, and not as merely creating a obarge as defined in s. 100 ;
and that consequently the rights of the obligee must prevail over those of the
subsequent bona Jiie purchaser for value without notice of the bond and the
decree thereon.

Held also by Mahmood, J., that the title of the judgment-debtor at the time
of the sale in 1885 in execution of the simple money-decree was subject to the
mortgage-decree of January 1883, and the purchaser at that sale, could acquire
no higher title than the judgment-debtor possessed, and was equally bound by
the terms of the decree of January 1883, in respect of tbe property which he had
purchased, and could not prevent the property being sold under that decree ex-
cept by paying up the decretal money. Unnoooorna [29] Dossee v. Nufur
Poddar (1) and Rajah Enaytt Hosein v. Oridhari Lai ('21 referred to.

Per M*hmood, J. The power of sale mentioned in s. 58 (6) of the Transfer of
Property Act is not a power in the mortgagee to bring the mortgaged property
to sale independently of a Court The observations on this point of Muttusami
Aiyyar.J.. in Rangaswami v. Mutlu Kumaroppa (3), or Bird wood and Jardine.JJ.,
in Khemji Bhaqvandas v. Rama (4) and of Petheram, C.J., in Sheoralan Kuar
v. Mahipal Kuar (5), dissented from.

The nature of simple mortg*gf>, hypothecation, charge and lien discussed.

Aliba v. Nanu 6), Martin v. Pursram It, Raj Conmer Ram Gopal Narain Singh
v. Bam Dutt Ghnwdhrv 8), Moti Ram v. Vitai '9 , Oopil Pandey v. Parsotam
Das (10), Shib Lai v. Ganqa Pm.sad (11), Gtrdhar Ran hoddas v. Bakamachund
Revachand (12), So'ihaguhand Gulabchand v. Baichand (13i, Narain Purshotain
v. Dolatram Virchand (14;, and Durga Prasadv. Shambhu Nath (15), referred

Second Appeal No. 868 of 1888 from a decree of H F. Evans, Esq , District Judge
of Aligarh, dated 13tb February 1888. confirming a decree of Babu Abinash Chander
Eanarji, Subordinate Judge of Aligarh, dated the 6th MUy 1887.

(1) 21 W.R. 148. (2) 12 M I.A. 366. (3) 10 M. 509. (4) 10 B. 519.

(5) 7 A. 258. (6) 9 M. 218. (7) 2 Agra 124. (R) 13 W.R. (F.B.) 82.

(9) 13 B. 90. (10) 5 A. 121. (11) 6 A. 551, (12) 8 B.H.C.B. 75.

(13) 6 B. 193. (14) 6 B. 538. (15) 8 A. 86.




13 All. 31

App., 14 A.W.N. 57 (58); R , 330.985 (993) = 4 C.L.J. 219 (2251 ; 330.1133 (1152) =
4 C L.J. 121=10 C.W.N. 1010 ; 35 C. 837 (844) = 7 C.L.J. 492 = 12 C.W N. 849 ;
30 M. 426 = 11 C.W.N. 1005 (P.O.) =6 C.L.J. 379 = 4 A.L J. 625 = 17 M.L.J. 444
= 2 M.L.T. 333 = 9 Bom. L.R. 104 ; 5 A. L.J. 723 <724) = A.W.N. (1908) 277; 12
C.P.L.R. 26 (30) ; 9 Ind. Gas. 828 (829) ; 19 Ind. Gas. 658 (659; ; 19 lad. Gas.
661 (662).]

THE facts of this case wera as follows. On the 18th October 1875,
one Baldeo Das alias Bal Kishen executed in favour of Nathu Ram a deed
in the following terms :

" I Balkishen, son of Megraj, caste Bakkal Bara Sevi, resident of
muhalla Bahi Kila, one of the quarters of the town of Kol, do declare that
I have borrowed in cash Bs. 500, half of which is Rs. 250, from Nathu
Ram, son of Bindaban, caste Bakkal Bara Sevi, resident of mauzaMarwar,
pargana Hasangarh, in the district of Aligarh, and have brought the same
to my use. I promise in writing that the same shall be paid on demand
to Nathu Rim aforesaid with interest at the rate of annas 14 per cent,
without any objection or excuse. If I fail .to pay interest for six months,
interest will be paid also on the interest overdue at the rate of annas 14
per cent. Until repayment of the aforesaid sum I shall not transfer to any
one else in anyway a pucka built shop belonging to me situated in Bazaar
Kalan in the town of Kol and bounded on the east by the shop of Rup
Ram Bakkal, on the west by the [30] shop of Hugam Chand and'Roshan
Lai, on the south by the door of the shop and the road, and on the north
by the house of Nur Muhammad Shaikh, owbich I have hypothecated (arh
mustaghraq) in this bond. Should I do so. the act would be invalid. If
by mischance the property hypothecated (shai mustaghaqa) should by some
unforeseen accident be destroyed or should prove insufficient to satisfy the
bond debt, the obligee aforesaid shall be at liberty to realize the amount
of this bond from my other property and person. I. shall have no objection
to this. I have written these presents in the shape of a hypothecation
bond that they may serve as evidence and be of use when needed."

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 4 of 155)