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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 94 of 155)
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to the clause which applied in the casa. The next case to which
we were referred was the case reported in the note to the case of
Bhikhan Khan v. Ratan Kuar (3). It was a suit by a co-sharer, nob
apparently against the lambardar, but against a person who had intermed-
dled by dealing with the profits of the mahal. The case in my judgment
depended on some of the clauses of the Rent Act then in force, and has,
so far as I can see, no bearing upon the construction to be pub on s. 93,
clause (a), Act No. XII of 1881. I next come to a case which was much
pressed upon us, namely, Ahmad-ud-din Khan v. Majlis Eai (4) in which
it was decided that a suit by the heirs of deceased co-sharer against the
heirs of a deceased lambardar for money claimed as profits due bo the
deceased co- sharer by the deceased lambardar was a suit which was cog-
nizable by the Civil Court and not by the Court of Revenue. Now that deci-
sion turned upon clause (h), a. 93 of Act No. XVIII of 1873, in which the
word introduced into Acb No. XII of 1881, namely, " recorded" was not
to be found. I may say that I am of opinion that the co-sharer mentioned
in clause (h) of s, 93 of Acb No. XVIILof 1873 meant recorded co-sharar.

I entirely agree with the decision that a suit by a person who was
the heir of a recorded co-sharer, but was himself not a recorded [401]
co-sharer, did not lie in the Courts of Revenue for profits. That case,
as most of the others, turned upon the special wording of clauses which
do not apply to the suit in the present case. There were one or two
other authorities referred to in the course of the argument to which I do
not think it necessary to refer in my judgment, as they have no direcb
bearing on the question before us, and as I think that the answer to the
reference is really to be ascertained by the plain construction of clause
(a), s. 93, Act No. XII of 1881. I would accordingly answer the question
by saying that the suit in question is one not cognizable by the Civil
Courts and is cognisable by the Courts of Revenue only.

TYRRELL, J. I entirely concur with the learned Chief Justice.

KNOX, J. The question put to us for answer is whether the Revenue
Courts have jurisdiction in suits for arrears of rent which may have fallen
due during the lifetime of a deceased tenant and which may be claimed
by the landlord from the persons who have succeeded as tenants by
inheritance, and not by survivorship The question does not in terms
refer to the fact that it is a question which has arisen out of a suit brought

(1) N.W.P.H.C.B. 1870, p, 54,
(3) 1 A, 512,

(2) 3 A, W.N, (1883) 172.
(4) 5 A. 438,




1* All 403

by a landlord against a tenant with right of occupancy, or rather the
successor to such tenant, but it is evident from the reference, and it is
with regard to such case alone that I make the answer, and my answer
would be that the Revenue Courts alone have jurisdiction. It is beyond
all doubt that s. 93 of Act No. XII of 1881 confers upon Courts of Revenue
the jurisdiction to take cognizance of any dispute or matter which may
arise batween the landlord and tenant having a right of ocaupancy when
such a matter relates to arrears of rent, and I do not think that I am
forcing the language of the Act at all when I understand from it that the
Act confers, jurisdiction over all disputes relating to matters of rent
between persons who at the time when the suit is brought are holding
towards each other the position of landlord and tenant. It follows from
this that the jurisdiction of the Civil Courts is prima facie and in terms
excluded from taking cognizance of such suit. Now this being so, is there
anything as contained in s. 93 or elsewhere in the Act to take such a
suit as this which has [402] been made the subject of this question out
of the revenue jurisdiction ? I can find no such provision.

It has, however, been contended that the successor by inheritance to
a deceased tenant, whose tenure was of the class referred to in and con-
templated by s. 8 of Act No. XII of 1881, is not the tenant of the land-
lord so far as arrears which accrued due from his predecessor in interest
are concerned, and it is then contended that the Revenue Courts are
deprived of jurisdiction. It seems to me that to concede such a construc-
tion of the language contained in s. 93 is in effect to place a limit upon
language which is in terms very wide and a limit which was not contem-
plated or intended by the Legislature. The claim of a landlord for arrears
of rent brought in this form can only, and must always, be a suit for
arrears of rent against whomsoever it may be brought. The person sued
as defendant may indeed plead in answer that he is not the tenant
of the plaintiff and has never attorned to him, and if it be so found
the jurisdiction of Revenue Courts fails. But if the pleadings dis-
close that the defendants had succeeded to the position of the tenant by
the time the suit has been brought and had accepted the liability of the
tenant to the plaintiff as landlord, the question must sbill remain whether
the defendants had accepted the liability to arrears of rent which accrued
du before his tenure commenced. But on such pleadings in my opinion
the suit will still be a suit for arrears of rent, and being such a suit no
Court other than a Court of Revenue can take congnizance of ib. It will be
in fact for the Revenue Court, and the Revenue Court alone, to determine
whether the defendant before us is or is not liable for the sum claimed as
arrears of rent.

I am fortified in this view by the history of the past legislation on the
question of landlord and tenant. So far as I can discover, from the earliest
times in which the question has been made the matter of legislation by
the Englith Government, all matters in dispute touching arrears of rent
between landlords and tenants were removed from the ordinary jurisdiction
of Civil Courts and made the subject, of speoial enactment. There was indeed
one [403] attempt made, and only one, so far as I can find, to place suits
of this kind on the same footing as ordinary civil suits. It was in Regu-
lation XVII of 1793, and the only preference given to suits of this nature
was that they were invariably to be heard and determined prior to any
suits of other kinds which might be then pending before the Courts, It
was, however, found that this expedient was of no practical value where
the object was to provide speedy remedy. Regulation XLV of 1795 in its




14 A. 381

'F.B.) =
12 A.W.N.
(1892) 143.

A VII-79


14 All. 404






14 I. 381

(1892) 143.

preamble states that there had been found in the Kegulations as they then
existed defects tending to screen oppression and dishonesty on the
one hand, and to discourage moderation and good faith on the other, and it
was essential to the prosperity of the country and the punctual collection of
the public revenue that landholders and farmers of land should have the
means of speedy remedy for recovery of rent, special powers were sanctioned
by law which enabled landholders to recover rent without the delay and
expense necessarily attending a law process for the recovery of every arrear.
This expedient, however.failed also, and Regulation VIII of 1831 was placed
upon the statute book which expressly provided that sumofary claims
connected with arrears of rent should be preferred in the first instance to
Collectors of Land Revenue. After several intermediate Regulations
bearing upon the subject and with the same end in view, Act No X of
1859 was enacted. Act No. X. of 1859 was not an Act curtailing the
powers of Collectors, but as its preamble shows, ib was specifically
enacted to extend the jurisdiction to Collectors in connection with the
demands of rent and other questions connected with the same, and thus
we come to an end of what was known as the summary jurisdiction and
summary rights. Act No. X of 1859 and the Acts which follow it are
Acts providing elaborate and special machinery for the trial of rent suits
amongst other matters. Act No. X of 1859, so far as the provisions
contained in it for recovery of arrears of rent are concerned, and they will
be found in s. 23 oj the Act, will be found to differ in no material way
from Act No. XVIII of 1873, which is described as an Act for theconsoli-
dation and amendment of the law relating to recovery of rent. Act
No. XII of 1881, which is the enactment at present in force, is described
[404] as an Act to amend the law relating to recovery of rent. But I
find nothing in any of these Acts which encourages the view that the
ample and express jurisdiction which was conferred upon Collectors of
Land Revenue by Act No. X of 1859 has been in any way curtailed or
restricted. The object of all the legislation was over and over again de-
scribed in the Regulation as being the promotion of peaceful and equitable
relations between the superior and inferior classes of agricultural popula-
tion and the supply of prompt remedies for the differences which would
otherwise impede the punctual realization of the land revenue. Moreover
it seems to me that the view I have taken is consistent with the view
which was taken, both in these Provinces and in Lower Bengal, when
Act No. X of 1859 was for many years in force, Both the Calcutta
High Court and this Court appear to have entertained no doubt as to
the jurisdiction of the Revenue Courts to determine suits relating to
arrears of rent, even in cases where the plaintiff might not be the then
landlord, but an assignee of or holding some similar position from
the landlord. Thus I find that in 1865 the Calcutta High Court
in the case of Ashootosh Ghuckerbutty v. Baneemadhub Mookerjee (1)
held that the Revenue Court had jurisdiction, even when the
defendants pleaded that the claim was not one for rent but for money due
upon contract, and therefore beyond the cognizance of the Revenue Court.
The case was one in which the defendant had covenanted in his kabuliat
to become liable for certain outstanding rents due before be had taken
the lease. Then there is the case of Benod Behary Mookhopadhya v.
Beer Narain Boy id the same volume, page 46, in which that Court held
that the Revenue Court had jurisdiction where a rent decree had been

(1) Revenue, Civil and Ciimnal Reporter, Vol. I, p. '26.



All. 406

purchased from the landlord, and the purchaser of the decree found it
necessary to continue the litigation in the Rent Court. There is a case in
which the Sadr Diwani Adalat of these Provinces in 1865, namely, in
the case of Hossain Ali Beg v. Ashruff Ali Beg (1), held that a sharer in
possession of his share at the tima of his suit may claim in the Revenue
Court the profits [405] of his share for a previous period during which he
was not in possession. There are other cases to the same effect, but I
only quote these by way of analogy. For these reasons I agree in the
answer given by the learned Chief Justice.

STRAIGHT, J. I only wish to say this, that though my mind is not
wholly without douot, I am not so satisfied as to the correctness of the
contrary view as to justify me in differing from the majority.

14 . 405 (F.B.) = 12 A.W.N. (1892) 108.


Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight, Mr. Justice
Tyrrell, Mr. Justice Mahmood and Mr. Justice Knox.

(1) N. W. P. 8. D. A. R. 1865, p. 221.

(3) 12 C. L.R. 479.

(5) 6 W. R C.R. 116.

(7) 3 Agra 358.

(9) 6 B. L. R. App. 114.
(11) 6 A. 344.
(13) 4 A. 291.
(15) 8 A. 54.

(2) 10 M.I.A. 340.

(4) 3 A. 175.

(6) 7 W. R. C R. 428.

(8) N. W. P. H. G. R. 1870, p. 284.
(10) 3 A. 770.
(12) 11 A. 164.
(14) 4 A. 414.




14 A. 381

(F.B.)= f
12 A.W.N.
(1892) 143,

ALI ABBAS AND ANOTHER (Plaintiffs) v. KALKA PRASAD (Defendant).*

[16th March, 1892.]

Regulition No. XVII of 1806, ss. 1 and 8 Mortgage by conditional sale Foreclosure
Pre emption, suit for Limitation Act XV of 1877 {Indian Limitation Act),
sch. ii, art. 120.

Where a mortgage by conditional sale had been duly foreclosed in accordance
with the procedure laid down in ss. 7 and 8 of Regulation XVII of 1806 and at
the expiration of the year of grace a portion of the mortgage money remained
unpaid : h->ld in a suit for pre-emption of the mortgaged property that the title
of the conditional vendee became absolute on the expiration of the year of grace,
and that the plaintiff's right of pre-emption accrued and limitation began
to run against him from the expiration of such year of grace Forbes v.
Ameeroonissa Begum (2), distinguished: Raisuddin Chowdhry v. Khodu Nnoaz
Ghowdry (3) ; Jaikaran Bai v. Qartga Dhari Rai '4i ; Moonsh e Syud Amrer
Ali Bhibo Soondurfe Debia (5) ; Mohunt ajoodhya Pcoree v. Sohun Lai t6| ;
J'orackhun S-ngh v. Eookum Singh (7) ; Buddree Doss v. Durga Perthad (8) ;
Mussamat Tara Kunwar v. Mangrt Meea (9) ; Hazari Ram v. Shankar Dial (10) ;
Tawakkul Rai v. Lachman Rai ill) ; and Ajaib Nath v- Malhura Prasad (12) ;
referred to. Prag Chaubey v. Bhijan Chauihri (13) ; and Rasik Lai v. Gajraj
Singh (14) ; and Udit Singh v. Padarath Stngh (15) overruled.

[Appr., 24 A. 17 (P C.) = 28 I. A. 248 = 5 C.W.N. 388 = 3 Bom. L.R. 707 = 8 Bar. P.O.
J. 133; 3 O.G. 184 (187)5113 PR. 1901 = 120 P.L R. 1901 ; R., 10 O.C 374;
26 P. R. 1902 = 26 P.L R. 1902 ; 103 P.R. 189J ; Expl., 20 A. 315 (318) (P.B.).
D., 20 A. 358.]

THIS was a reference made to the Full Bench by Tyrrell and Knox,
JJ. The facts of the case sufficiently appear from the order of reference,
which is as follows :

[406] TYRRELL and KNOX, JJ. This appeal has arisen out of a pre-
emption suit brought by the appellant against the respondents. There
are two appellants, the father and a minor son. At the time the suit was-

* Reference in Second Appeal, No. 749 of 1889.


14 All. 407






14 A. 405.

2 A.W.N.
(1892) 108.

brought; Syed Ali Abbas, the father, was a recorded co-sharer in the mahal
to which the contested property belongs. The second appellant, his
minor son, Ghulam Haidar, who is joined with him in the suit, is said to
have obtained the property now in controversy by gift from the other
plaintiff pendente lite.' The defendant, respondent, is the conditional
vendee from a co-sharer of the plaintiff under a deed of conditional sale
executed in favour of his (the defendant's) father, Khushhali, on the 12bh
of August, 1872. Under the terms of that, deed the respondent, or rather
his father, was put in possession of the i^.id the subject of the condi-
tional sale. On the 4th of August, 1873, this vendee applied under
Regulation XVII of 1806, s. 8, for a notice of foreclosure against his
conditional vendor. On the 27th of August, 1874, the year of grace
contemplated by the above section expired, but the conditional vendee
took no steps to obtain ao order of foreclosure in the terms of the last
paragraph of s. 8 of the Regulation until the 17th of February, 1885, upon
which date he moved the District Judge of Allahabad to give him an order
in the terms of s. 8 of Regulation XVII of 1806. On the 9Sh of March,,
the District Judge of Allahabad, having found that notice had been
duly issued under the Regulation to the vendor, and that the year of
grace had expired on the 27th of August, 1874, without any payment
by the vendor to the vendee, gave to the conditional vendee the fore-
closure order he sought for. The conditional vendee, for reasons which
are not disclosed, although he had possession of the property, brought
a suit, apparently to mature and establish his title against hia vendor,
on the 26th of March, 1885, that is to say, a few weeks after he
had obtained the foreclosure order, and on the 16t;b of May, 1885, he
obtained a decree. The appellant here claiming to pre-empts fcho property
which was the subject-matter of the conditional sale, instituted the pre-
sent suit on the 9th of September, 1886. It is conceded on both sides that
the limitation of art. 120 of sch. ii of Act No. XV of 1877 is applicable
to this case.

[407] The question therefore arises whether or not this suit has
been brought within six years of the date when the right to bring the
suit accrued. The suit is based on a provision in the wajib-ul-arz to the
effect that " co-sharers have a right to pre-empt in cases of sale by a co-
sharer. When did the sale in question take place ? Should it ba deemed
to have taken place on the 27th of August, 1874, when the year of grace
expired, or on the 9fch of March, 1885, when the District Judge gave a
foreclosure order under s. 8 of Regulation XVII of 1806, or on the 16th
of May, 1885, when the vendee's title was perfected by a final decree made
in the suit in that behalf between himself and his vendor ?

Both the Courts below have defeated the pre-emptor upon the ground
of limitation, holding that time ran against him from the 27th of August,
1874. Mr. Sundar Lai on behalf of the appellant contends here that
no complete, absolute or full title was vested in the conditional vendee in
respect of the property in suit prior to the 16bh of May, 1885, when he
obtained a decree in the controversial suit for declaration of his right as abso-
lute vendee from the Civil Couri. In support of his contention Mr. Sundar
Lai relied upon the ruling of this Court in Prag Ghoubey v. Bhajan
Chawdhri (I), where it was held by the late Mr. Justice Oldfield that the
terminus a quo for a suit of the character of the suit now before us is to be
found in the date of the decree which declared the completeness and maturity

(1) 4 A. 291.



14 All. 409

of the title of the conditional vendee, and not from the date of the expiry of
twelve months from the date of the notice issued by the District Court in
its ministerial capacity under the Regulation, or from the date of the fore-
closure order made by the District Judge. Mr. Sundar Lai also relied upon
the ruling in Udit Singh v. Padarat Singh (1), and we understand that he
was in a position to refer to some few other authorities in the same direc-
tion. But as we intimated to him that we mean to refer the question in
issue to a Full Bench, he preferred to reserve them for the present.

[408] In support of the respondent's case Mr. Bam Prasad cited the
following authorities : Taioakkul Rai v. Lachman Rai (2) ; Ashik All v.
Mothura Kandu (3) ; Hazari Ram v. Shankir Dial (4) ; Buddree Doss v.
Durga, Pershad (5) ; Jeorakhun Singh v. Hookum Singh (6) ; Digambur
Misser v. Ram Lai Roy (7) ; Moonshee Syud Ameer Ali v. Bhabo Soonduree
Debia (8) ; Mohunt Ajoodhya Pooree v. Sohun Lai (9) ; Musammat Tara
Kunwar v. Mangri Meea (10).

Mr. Ram Prasad tells us explicitly that he relies upon the date of
the 27rh of August, 1874, as the terminus a, quo for this suit, and he
contends that a suit for pre-emption brought more than six years after that
date is barred by limitation. He does not rely upon the foreclosure order,
and rightly in our opinion : for it is pretty obvious that although pro-,
ceedings under s. 8 of Regulation XVII of 1806 had been set on foot in
1873, yet when the application was made in March, 1885, and the
foreclosure order was given in the same month by the District Judge,
under s. 8 of the said Regulation, the order was made without jurisdic-
tion ; for the Regiution in question had been repealed in its entirety
by Acs No. IV of 1882, and under the Fall Bench ruling of this
Court in Ganga Sahai v. Kishin Sahai (11) it was incompetent to the
District Judge to use the procedure of the repealed Regulation. The
only course open to the conditional veadee in those proceedings was
to have adopted the procedure of the Transfer of Property Act in
order to obtain the relief he wanted ; and we may observe that the
suit which he brought in the year 1885 was noli a suit which he could
have brought under the Transfer of Property Act, nor was the decree
given to him a decree which could properly be made in a suit brought
under the Transfer of Property Act.

However that may be, the only question now before us is whether
the limitation of art. 120 is to be calculated from the 27th of August, 1874,
when the year of grace expired, or from the data of the decree of the
16th of May, 1885. There can ba no doubt [409] that there has been
considerable conflict of opinion upon this point between different Benches
of this Court. It is well to mention here, so as to clear the ground, that
there is no question in the present case of want of notice on the pre-emp-
tor's part of the fact of the conditional sale of 1872, or of the fact that a
notice for foreclosure had been applied for and obtained, or of the fact
that the year of grace was about to expire. This is shown bylthe proceed-
ing No. 19 upon the record of this suit, dated the 19bh of August, 1874,
in which the pre-emptor intervened in the foreclosure proceeding and made
certain objections which were disposed of by the District Judge. We think




14 A. 403

(P.B.) =
12 A.W N.
(1892) 108.

(1) 8 A. 54.

(4) 3 A. 770.

(7) 14C. 761.

(10) 6.B.L.R. App, 114

(2) 6 A. 344.

(5) N.W.P.JEi.G.R. 1870, p. 284.

(81 6 W. R. C.R. 116,

(3) 5 A. 187.
(6) 3 Agra 359.
(9) 7 W.R.C.R. 428.
(11) 6 A. 262.


14 All. 410




14:&. 405

<P.B.) =


(1892) 108.

1892 ^at it is desirable that a Full Bench should determine the question whe-
MABCH 16. ther in respect of a pre-emption suit brought after the passing of Act No. IV
of 1882, in respect of a co- sharer's transfer by way of conditional sale to a
stranger of his rights in a mahal in 1872, and in respect of which fore-
closure proceedings had been initiated under Regulation XVII of 1806
the terminus a quo under s. 120 is to be found in the date of the expiry of
the year of grace in such proceedings, or in a decree in a suit brought
between the conditional vendee and the conditional vendor to establish the
former's absolute title to the subject-matter of the conditional sale.

We refer this question accordingly.

On the case coming before the Full Bench the following judgments
were pronounced.

The Hon'ble Mr. Spankie and Pandit Sundar Lai, for the appellants.

Munshi Bam Prasad, for the respondent.


EDGE, C.J. The suit out of which this appeal and reference have
arisen is one for pre-emption. On the 12th of August, 1872, the then
owner mortgaged his share by way of a mortgage by conditional sale. On
the 27th of August, 1873. a notice or parwana in accordance with s. 7 of
Regulation XVII of 1806 was duly served. On the 27th of August, 1874,
the mortgage-moneys not having been satisfied, s. 8 of that Regulation
applied. Nothing further appears to have been done till the 17th of
February, 1885, [410] when an application was made to the District
Judge to draw up an order completing the foreclosure proceedings
commenced in 1873. On the 9th of March, 1885, the District Judge made
what purported to be the order asked for. On the 26bh of March,
1885, the son of the vendee brought a suit to establish his title
as vendee under the foreclosure proceedings and the conditional
sale of 1872. That suit was contested by the mortgagor, but on
the 16th of May, 1885, the vendee obtained a decree declaring his title.
On the 9th of September, 1886, the suit for pre-emption now before us was
brought. The question referred to us is whether, admitting art. 120 of sch.
ii of the Indian Limitation Act to be applicable, the right of the pre-empt-
ing plaintiff to sue accrued on the expiration of the year of grace which
expired on the 27th of August, 1874, or when the vendee obtained his decree
clearing his title on the 16th of May, 1885. It has been contended by
Mr. Spankie for the plaintiffs-appellants that no right of suit for pre-emp-
tion accrued before the 16th of May, 1885, the contention being that accord-
ing to the judgment of their Lordships of the Privy Council in Forbes v,
Ameeroonissa Begum (1), there was in contemplation of law under the Regu-
lation no complete sale until the conditional vendee bad brought his suit for
a declaration of his absolute title and until he has obtained a decree in his
favour in that suit;. Mr. Spankie in support of that contention has relied
on the case of Rais-ud-din Chowdhry v. Khodu Netvaz Chowdhry (2) in

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 94 of 155)