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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 93 of 155)
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possession of his holding from a trespasser proceed upon the principle that
the tenant's right is immoveable property and mast be treated as such for
purposes of procedure."

I have quoted these long passages from my long judgment for no
reason other than that of showing the principle upon which my judgment
proceeds, namely, the appreciation of what the Legislature intended by
the right called occupancy tenure. The judgment unhappily was


A VII 78

14 All. 390







li A, 381

12 A.W.N.
(1893) 113.

a dissentient judgment, as this one is, but I still adhere to the views I then
expressed in oonneotion with, not the recognition, but the creation of the
right of occupancy. It is a matter of the history of legislation to'which
I as a Judge can refer, namely, that it was the policy of Govern-
ment at the time expressed by its legislative enactment of 1859, soon
after the troubles of 1857, that persons who were in possession of the
land must not be easily ousted, that difficulties must be placed in
[390] the power of landlords and zemindars for procuring the ouster, and
therefore, not with the consent, not with the desire, but indeed against
the wishes of the zemindars, namely, landlords, the Act No. X of 1859
was passed conferring the right, whether created by custom or by dint of
twelve years' possession. The right thus created was a right intended to
devolve like land. It was not intended to vest like land. The object of
the Legislature was simply to keep a certain class of population which
cultivates certain parts of the land on the soil. It is not for me to say
whether the policy was right or wrong, but it is clear from the history of
legislation that this was the object of the Legislature. Therefore two
consequences followed ; one was the conferring of the right, and the
other was to disable a party who held such right from being able to trans-
fer it, though he might wish to do so as much as he could. The agricul-
tural population of India is a population which has not enough advance-
ment of mind to understand its own interest?, and it is obvious to me,
reading through the whole history of the legislation, that it was intended
that no man by his want of prudence, being an agriculturist, should cease
to be the tenant of the land by transferring it. This is clear from s. 9 of
Ac* No. XII of 1881.

Now this being the nature of the right:, the exact question before me
becomes simple, and it is this : is the misbehaviour or imprudence or
extravagance of an occupancy tenant to be any reason for the ouster of
his son or any other person upon whom the tenure would devolve within
the meaning of s. 9 of the Kent Act ? So far as I am concernedj I have
absolutely no doubt that such was not the intention of the Legislature.
When an occupancy tenant who cannot be turned out by the landlord at
his will, and in the way of turning him out difficulties and use of forma-
lities required by the enactment are placed, chooses to misbehave and to
die before paying up the rent due from him, his sins do not fall upon hia
son or his heirs, because, although the tenancy is an occupancy tenure and
devolves like land, yet an occupancy tenure in this country was created
to prevent such contingencies. It was so created [39 1] because, unhappily,
the agricultural population of India has not yet advanced enough to under-
stand its own interests, otherwise there is no reason either of legislative
or other consideration which would take away from a man the power of
conveying his own rights such as those in an occupancy tenure. We know
that in England a lease-holder can convey land, and the assignee takes
subject to all the conditions of the lease, subject to all the impediments
and legal liabilities which the lease was subject to.

But such is not the case in regard to occupancy tenures, and any
questions which arise in regard to covenants running with the land, as
they are called, do not apply to this right because it does not devolve like
any other land. The right is personal to the man, namely, the present
defendant. He derives it by reason of certain qualifications which are
required by the law, namely, by reason of their being father and son, but the
fact that this qualification is required by the statutory rights does nob
create any privity of land between himself and his father qua a tenant.




14 All. 393

The tenancy is free to devolve upon him by dint of the statute,
because if the statute meant to render him liable, the word used would
have been inherit and not devolve as it is in 9. 9 of the Bent Act.

Bat this is nob, in my opinion, the intention of the Legislature, and
I hold that upon the death of an occupancy tenant those who succeed him
in the tenure have no privity with the deceased tenant, but that they
derive a right independently for themselves by reason of being qualified
for the statutory right which s. 9 of the Rant Act contemplates. It follows
therefore that no covenants made by the predecessor in the occupancy
tenure and no obligations incurred by him can fall upon his successor.

In laying down this rule some difficulty may arise over transferable
occupancy tenures such as those contemplated by a. 7 of the enactment.
I have no difficulty, so far as I am concerned, in explaining the incidents
that may arise in regard to that class of tenures and extending the same
principles as those upon which I [392] am dealing with this case, but the
question under that section does not arise here.

Now, how does the matter stand ? The matter is that Amar Singh,
an occupancy tenant, died, leaving, I do not know whether he left other
property, a debt due by him to the plaintiff, landlord. The debt was a
subsisting one for which remedies are apparently provided by the Eent
Act (No. XII of 1881) by the summary procedure of the Act so long
as he lived. Those remedies were never employed against him. His
crops which were liable primarily for the payment! of rent were never
distrained. No remedy such as the enactment confers was ever sought
for by the landlord, zemindar. The man died and the question is whether
upon his death his sons could be brought into the Rent Court for being
dealt with as if they were Amar Singh themselves.

I have no doubt they cannot. The enactment itself specifically deals
with remedies, and where it creates rights it is most anxious to define them.
There is not one word in the enactment to show that suits such as
those contemplated by s. 93 or s. 95 of the Rent Act are to be instituted
against the heirs or representatives or other persons other than the original
tenants. Reliance has been laid upon the last paragraph of s. 112- A of the
Rent Act, which says that " when a defendant dies and the suit is conti-
nued against his legal representative, it shall, as regards him, be deemed
to have been instituted when it was* instituted against the deceased

I am, however, relieved from the difficulty of considering this matter,
because in this case admittedly the suit was commenced after the death
of the tenant, the tenant being never a party to the suit, and the quarrel,
the subject of the reference, relates to a dispute between a man who at
one time was subject to the jurisdiction of the Rent Act and his landlord.
Notwithstanding the section, a son or other successor to an occupancy
tenant may possibly raise pleas in an action of this character as the
legal representative, upon the ground that the cause of action does not

[393] Be it as it may, the immediate question before me is whether
the Civil Court has jurisdiction in regard to the dispute as represented by
the pleadings of the parties and as it is before me. Now, in the case of
Mahadeo Singh v. Bachu Singh (1) I took some trouble to explain how
the provisions of a general enactment are to be considered as imperative
till it is shown that by special enactment the power of jurisdiction

(1) 11 A. 324.




11 A. 381


12 VW.H.
(1892) 113.

14 All. 394



1892 is taken away. The general enactment is the present Code of Civil Prooe-

MARCH 9, dure (Act No. XIV of 1882), and it can. as such, of course be abrogated

by any special enactment, but in s. 11 it says that the Civil Courts

FULL " shall have jurisdiction to try all suits of a civil nature excepting suits of

BENCH, which their cognizance is barred by any enactment for the time being in


14 A. 381 jf ow ^ere j a a max j m O f j aw w hich says that special enactments

(P.B.I* ma y abrogate the general enactments. The abrogation here which

12 A.W.N. Mr Conlan relies upon lies in s. 93 of the Kent Act (No. XII of 1881)

(1892) 143. an( j j n tbe p i n t now before me relates to clause (a) of the section, because

the first part of it is clear enough as to the ouster of jurisdiction.

The difficulty then is, is the present suit a suit for arrears of rent ?
It was contended, and, I may say, with much emphasis, by Mr. Conlan
that the word " rent " being used there is generic, that therefore it must
be taken to mean not only rent due actually by the occupancy tenant
now in possession, but also by his ancestor, so that a suit of this nature
is a suit of this character within the meaning of this section which must
be dealt with, because the occupancy tenure being under s. 9 a tenure
which devolves like land, a great-grandfather dies, a grandfather dies, a
father dies and the son is in possession, then under the enactment, as the
necessary legal result of Mr. Conlan's argument, the Bent Court has
power to deal with liabilities as to arrears of rent, to deal with questions
which may involve the administration of various estates which I have
considered for bringing out the point of law.

There is one more point in the matter, and it is this. If the word
" rent " did mean as Mr. Conlan argued it meant, I should [394] have
consented to his contention. But it cannot be that, because the word
" rent " is not to be understood in the English sense of rent nor is it the
same as " rent charge," which again is a most complicated term of the
English law, but it must be understood as rent within the meaning of the
Eent Act. To understand what "rent" means and what maybe the
meaning within the meaning of the statute, we must consider the several
remedies provided by law for recovery of rent. In regard to this matter I
may perforce refer 'to the ruling in Waris Ali v. Muhammad Ismail (1),
where I had the misfortune of differing with Mr. Justice Oldfield in regard
to the meaning of the word " fent." There it was actually contended
and actually held by my learned colleague that mimickry was rent within
the meaning of the enactment, and that because it was rent, therefore, all
the rules applicable to the recovery of rent were applicable to that case. I
have in this case also the misfortune of differing from my learned brethren.

This being the difficulty which arises over the question as to the
definition of rent, we may refer to the provisions of clause (2) of s. 3 of
this somewhat loosely drafted enactment. There rent is defined in the
following words :

" Bent ' means whatever is to be paid, delivered or rendered b3 7 a
tenant on account of his holding, use or occupation of land."

Now this being so, I have been unable to conceive upon what ground
it can be held that the word " rent " as used in clause (a) of s. 93 of the
Bent Act can be understood in any sense other than that in the definition.
Now what is rent is rent due by the tenant and not by his heirs, on
account of his holding, not on account of his heirs' holding, use or occupa-
tion of land. Similarly the suit contemplated by s. 93 (a) is a suit which

(1) 8 A. 552.



All. 396

can be against the tenant himself and not against his heirs, and indeed
this is the principle of the ratio upon which the Full Bench of this Court
proceeded in Ahmad-ud-din Khan v. Majlis Rai (1), over a cognate

Now I havesaid enough to show that for the purpose of maintaining
an action under s. 93 (a) of the Bent Act (No. XII of 1881) [398] it is
not a suit for rent, because for purposes of the enactment the defendants
were not the occupancy tenants, of the land during the period for which
the rent is claimed. Amar Singh's Heath may or may not render his
estate liable for payment of what was due from him by reason of the
occupancy tenure, but it is a question which is not excluded from the
cognizance of the Oivil Courts of Judicature, because it is a question which
may involve the administration of the estate, and is a question which the
Bent Act does not contemplate should be committed to the summary trial
of the Bent Court.

This being so, I respectfully think that the cause and dispute as
represented in this cvse was a cause which did not fall within the purview
of clause (a) of s. 93 of the Bant Act, and there was no abrogation of the
general jurisdiction of the Civil Court, and that therefore the cause lay
where it should have lain under the general law and procedure in a Court
which can deal with the administration of estates and which can deal
with questions of equities arising in the case.

My answer to the question therefore is that Mr. Sabonadiere was
right in the opinion that he had no jurisdiction as a revenue officer to
entertain the suit, and that Mr. La Touche, the Collector who differed
from him, was wrong in holding that it was a suit capable of being
entertained by the Bant Court. Tbis is my answer to the reference.

EDGE, C. J. This is a reference under s. 205 of Act No. XII of
1881 made by Mr. Sabonadiere as the presiding officer of the Court of
Bevenue in which the suit to which the reference relates was pending.
The reference was forwarded to the Court through the medium of the
Collector. The question which we have to determine here is, can a suit
for arrears of rent ba brought by the landlord against the person upon
whom the right of occupancy has devolved, the arrears having accrued
during the lifetime of the prior occupancy tenant? The answer to the
question in my opinion depends upon the construction of s. 93, clause (a)
of Act [396] No. XII of 1881. The section, so far as it bears upon the
question before us, is as follows :

"Except in the way of appeal, as hereinafter provided* no Courts other
than Courts of Bevenue shall take cognizance of any dispute or matter in
which any suit of the nature mentioned in this section might be brought
and such suit shall be heard and determined in the said Courts of Bevenue
in the manner provided in this Act, and not otherwise; (a) suits for arrears
of rent, or, where rent is payable in kind, for the money equivalent of rent,
on account of land or an account of any rights of pasturage, forest rights,
fisheries or the like."

Now it is to be observed that according to the plain reading of the
section no suit of the nature of a suit for arrears of rent on account of
land can be brought in any Court other than the Court of Bevenue. There
is absolutely no limitation placed upon the wording of section other
than the limitation which is to be found in s. 1 of the Act, which limita-
tion does not apply in this case. In my judgment the answer to the

(1) 5 A. 438.




114. 881

12 A.W.N,
(1892) 118,


1892 question merely depends on the question of facts, was or was not the suit
MARCH 9. which was before Mr. Sabonadiere a suit for arrears of rent on account of
~ land ? It certainly, according to the plain understanding of the English
PULL language, with which there is nothing inconsistent in Act No. XII of
BENCH. IS81, was a suit for arrears of rent on account of land, that is, a suit
If jp38l in which the plaintiff sought a decree for arrears of rent which he alleged
(F B.)= io De ^ ue to D ^ m on accoun t f land. There is nothing in the section, so
12 A.W.N ' ar aa i* 5 re ^ a ^ es ko suits for arrears of rent to indicate that the section
(1898) 113. a PPl' 68 on ly where the person suing was the parson who was the land-
holder or landlord at the time when the rent became due, nor is there any-
thing in the section to indicate that the person to be sued in a suit for
arrears of rent must necessarily be the person who occupied the position
of tenant at the time when the rent, the arrears of which are sued for,
became due. According to the plain English of the section it applies to all
suits in which it is sought to recover arrears of rent on aooount of land,
that is to say, to all suibs of rent in [397] respect of holdings to which
Act No. XII of 1881 applies. I would be content, so far as I am concern-
ed, to rest my judgment in this case on the plain reading of the section.
But several oases have been relied upon in the course of the argument as
bearing upon the question, and I think it necessary to point out here
how far, if at all, they affect the question immediately before us. I think
it is also advisable to point out. that there is in my judgment nothing in
Act No. XII of 1881 which is inconsistent with the plain construction of
clause (a) of s. 93.

The person who sues here is a landlord to whom the rent sued for
became due. The person who is being sued is the present occupancy
tenant of a holding held under the plaintiff, and is being sued in respect
of arrears of rent which accrued in the life-time of his father, the then
occupancy tenant, who died before the institution of the suit. Beferring
to s. 9 of Act No. XII of 1881, we find that a right of occupancy other
than the right of a tenant at fixed rates devolves as if it were land. In
what I shall say in this judgment it must be understood that when I refer
to a right of occupancy I refer to such a right of occupancy as devolves
under s. 9 as if it were land. Now what is such right of occupancy ? It is
a right to occupy land subject, amongst other conditions, to the condition
of paying the rent which may be payable for the time being in respect
of the land. The right of occupancy cannot be regarded as a right to
occupy the land independent of the condition for the payment of rent,
and when a right of occupancy devolves under s. 9, it appears to me that
it devolves in its integrity, that is to say, carrying with it, amongst others,
the condition as to payment of renb. The person upon whom the right
of occupancy devolves is not bound to accept the tenancy, but, if he does
accept it, he, in my opinion, must accept it subject to its burdens, and
one of those burdens is the legal liability to pay the rent which is in arrear
and a suit for which is not barred by limitation.

If such person elects not to accept the right of occupancy his liability
would be limited to that of a legal representative to [398] whom
assets had come. I think it would be correct to say that the condition
to pay rent due and in atrear, which was part of the contract of occu-
pancy followed the land and affected the person upon whom the right of
occupancy devolved and who accepted the position of an occupancy
tenant in succession. It is obvious to my mind that the Bent Act contem-
plates that a landlord shall have a remedy by way of ejectment in case of
non-payment of rent by his tenant where the tenant is an occupancy




14 All. 899

tenant. But in order to exercise the right of ejectment, which in such a
case could only be done under Act No. XII of 1881, it would be necessary
for the landlord to first obtain a decree for the rent in arrear. The decree
which would enable the landlord to apply for ejectment is a decree for rent
in arrear passed by a Court of Revenue and not by a Oivil Court. Conse-
quently, if the landlord in the present case was compelled to bring his
suit in the Oivil Court and has not. got his right of suit in the Court of
Revenue for the rent which became due in the life-time of the deceased
occupancy tenant, and which is still in arrear, he might lose those arrears
by reason of there being no assets and yet never could obtain under the pro-
sent condition of the law, a decree for the rent so in arrear, upon which he
could apply to the Court of Revenue to ejeot the occupancy tenant in pos-
session upon whom the righb of occupancy has devolved under a. 9 of the
Act. In such a case, and if the law is as it has been contended it is, the
landlord might be left without any remedy. He could neither obtain pay-
ment of the rent due by the deceased occupancy-tenant and in arrear at
his death, nor obtain possession of the land which was held on the condi-
tion that the rent payable for it should bj paid. To my mind those con-
siderations suggest that it was clearly the intention of the Legislature, as
indeed they expressed it, that all suits for arrears of rent should be enter-
tainable by the Courts of Revenue, and by the Courts of Revenue only,
no matter who might be the parties to those suits. It was suggested in
the course of the argument that if a suit for arrears of rent against the legal
representative of a deceased occupancy tenant was entertainable in a Court
of Ravenue it might be necessary for that Courb to enter into an inquiry
[399] as to the assets and as to ether matters which a Civil Court would
be the more suitable tribunal to deal with. But s. 112-A contemplates
the carrying on of a suit on the death of the tenant and the carrying on
of the suit by making his legal representative a party to the suit as
defendant. Further, s. 161 of Act No. XII of 1881 obviously means that
where a decree under the Act has been obtained and the judgment-debtor
has died before execution, his heir or other representative may be made
a party for the purpose of enabling the judgment-creditor to execute
his decree, so that in either of these two cases it is possible that a
Courb of Revenue might have to consider the very matters which, ib
is suggested, can only properly be considered and dealt with in a
Civil Court. Shortly, in my opinion, according to the Act, the occu-
pancy tenant in possession who has accepted the occupancy holding is
liable to be sued for arrears of rent not barred by limitation which
accrued in the lifetime of the parson from whom the right of occupancy
has devolved upon him. I shall now shortly refer to some of the
principal cases which were cited before us in the argument. The first
case to which I shall refer is Jyeperkash v.Shewpurshad (1). In that case
as the law then stood it was held that an assignee of rent could only sue
to rocover the rent which had been assigned to him by bringing his suit
in the Court of Revenue, and that the Civil Court could not entertain such
a suit. That is in accordance with the principle which, in my judgment,
underlies Act No. XII of 1881, namely, that all suits of the nature of suits
for arrears of rent must be brought in the Court of Revenue and in the
Court of Revenue only. In the case of Mata Deen}Doobey v. Chundee De&n
Doobey (2) the plaintiffs, who were recorded proprietors of a share,
sued after their father died, under Act No. XIV of 1863, to recover

(1) N.W.P k 8,D.A. R, 1861, Vol. I, p. 230, (2) N.W.P.H.C. B. 1874, p, 118.






J * 1.-881


14 All. 400



1892 profits which had accrued before their father's death. Sir Roberb
MARCH 9. Stuart, G. J., and Spankie, J., differed ; Stuart, G. J,, holding that
the suit was maintainable in the Civil Court only, Spankie, J., holding
FULL that the suit was maintainable in the Court of Revenue only. In the
BENCH case ^ Mata Deen v. Ohundee [4001 Deen (1), it was decided that a
_ ' lambardar was not chargeable in the Court of Revenue in respect of pro-
14 A. 381 fits which had become due and payable at a time prior to his appointment,
(F.?.)= although he succeeded his father in the office. The case apparently turned
12 A. W.N on the wording of a clause in Act No. XIV of 1863 which related to suits
(1892) 243. by or against lambardars. In the case of Wazir Muhammad v. Amanat
Khan (2) it was held that the heirs of a deceased lambardar could not sue
to recover in respect of revenue paid by the lambardar. The decision
turned on the wording of clause (g) of s. 93 of Act No. XII of 1881, which
apparently relates solely to suits by a lambardar himself and not by his
heirs. It was in my opinion a perfectly right decision having regard

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 93 of 155)