LALLU YESHWANT SINGH versus RAO JAGDISH SINGH & ORS.

LALLU YESHW ANT SINGH

RAO JAGDISH SINGH & ORS.

Nowmber 29, 1967

[J. c. SHAH AND s. M. SJKRI, JJ.]

Gwa/it>f Reve1111e Laws-Ryotwari Land-GG/rdakhilk<ir lenarlls de· faulling in paymenl ·of rent-Landlord whether can eject !heni forcibly witi1Qu1 process of law--QanoO'll Mal s. 326 and Qanoon Ryotwari ss. 82. 137, 163-Effect of. .. .

Certain tenants of ryotwari land in Gwalior district filed suit under s. 326 of the Qanoon Mal alleging dispossession by the landlords and praying for restoration of possession. On behalf of the defendants· it was urged that by not paying land revenue the plaintiffs' rights had been extinguished under s. 82 of the Qanoon Ryotwari. The Revenue authori· ties decreed the suit on the view that even when Jand revenue was not paid the landlord could not take possession v.ithout recourse to suit undor s. 137 Qanoon Ryotwari. · The High Court_ however allowed the landlords' petition under Art. 217 of the Constitution holding that it was not obligatory on the landlord to resort to Court in order to eject defaulting lessee, and that in proceeding under s. 163 of Qanoon R_yotwari it was not snfficie·nt to determine the question of de facto posses.sion alone but it was also necessary to enquire as to \\'hethe-r this possession was or was not wrong. The appellant, V.'ho was one of the tenants came to this Court.

Held : (i) Under s. 82(3) Qanoon Ryotwari, the right of Khatedar is extinguished if the khatedar keeps in arrears the land revenue of his khata but there is no automatic extinguishment of his right because the proviso to s. 137 of the Qanoon Ryo1wari enables the Collector to accept arrears if the khatedar is good payer (khush-dehanda) and there are special reasons beyond his control for not paying land revenue. The proviso would become dead Jetter if in every case when there are arrears of land revenue the landlord could take possession forcibly with· out trying to recover the land revenue under s. 137. [207 E-Gl

Further s. 163 of Qanoon Ryot/wari clearly provides for suits of the nature described in s. 326 of Qanoon /\fa!. Section 326 is ''ei'Y similar to s. 9 of the Specific Relief Act 1877, and the words 'disturbed unlaw· fully· in s. 326 mean "disturbed not in due course of law". Otherwjse. there is no reason why shorter period of limitation and sun1mary pro-cedure is provide.d in s. 326 \vhile s. 325 provides longer period of three ve.ars 'for suit for possession. ·The word ·trespass' in s .. 326 would include i·orcible entry and dispossession by the landlord. [207 G-208A]

(ii) Under s. 9 of the Specific Relief Act the question of title i., irrcle-\'ant in suit under that section. Section 326 Of Qanoon Jl.,fa/ read with s. 163 of Qanoon Ryotwarl being similar to that section must l>o similarly interpreted. [208B]

Mid11{1.pur .Zamindary Company Limited v. Naresh Narayan Roy, 51 I.A. 293, K. K. Verma v. Naraindas C. Malkani. I.L.R. [1954} Born. 950, Yar Mo/Janunad v. Lakshmi Das, I.L.R. [1958) 2 All. 394, Wa/i

[ 1968] 2 S.C. R.

Ahmud Khan '· Ayodlaa K111rd11, (1891) l.L.R. 13 All. 537, State of West Bcngu/ v. /Jirendrr. Nath Bas1111ia, A.1.R. 11955) Cal. 601. Hi//aya Suhhaya Hegde v. Naraycmappl' Timmayc. ( 1911) 13 B.L.R. 1200, I. :lu hin Raghushet \', n11aji ParaJ!irom, [ 1881) I.L.R. 5 Born. 387. Ba11du v. Naba, [ 1890] I.LR. 15 Born. 238 aad Dadabhai Narsidas v. The S11b-Col/ector of Broach, 7 Born. H. C. Rep. 82 ACJ, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 145 of 1965. Appeal by special leave from the judgment and order dated September 24, 1956 of Madhya Pradesh (Now Madhya Pradesh) High Court at Gwalior in Civil Misc. Application No. 91 of 1955.

N. S. !Jindra, P. W. Sahasrabudde and A. G. Ratnaryarkht, for the appellant

Ramesh11·ar Nath and Mahinder Narain, for respondents Nos. Nos. I to 3.

The Ju'1gn1cnt of the Court ''as delivered by

Sikri, J, This appc:il by special leave is dir~ctcd against the 1udgment of the High Court of Madhya Bharat in Civil Miscel-laneous Application No. 91 of 1955. read with Civil Miscella-neous AJ?plication No. 92 of 1955. filed under Art. 227 of tile Constitutton by Rao Jagdish Singh and others. By this ju'..!gmcnt the High Court accepted the applicatiom and qu:ishcd the deci-sion of the Board of Revenue and dismissed the claim of Lallu Y eshwant Singh, son of Nahar Singh, now deceased, represented by Babu Singh, appellant before us. The relevant facts for appreciating the points arising in the appeal arc as follows.

Yeshwant Singh and other sons of Lallu Nahar Singh, herein-after referred to as the plaintiffs, filed suit against Rao Jagdish Singh and 4 others (Revenue Cas.e No. 24 of 2000 S. Y.) in the Court of Tehsildar, Pargana Pichhore, District Gwalior, for the possession of some agricultural land under s. 326 of Qanoon Mal. The plaintiffs' case. in brief. was that they were gairdakhi/kar cul-tivators and that Rao Jagdish Singh, defendant No. 1, had for-cibly prevented the plaintiff> from doing cultivation and got the disputed land cultivated by defendants Nos. 2 and 3, by interfer-ing with the possession of the plaintiffs. The plaintiffs prayed that deer.cc for possession may be passed in their favour against ~II the defendants. The defendants' case, in brief, was that the village in which the land in dispute is situated is Ryotwari village und no suit could be instituted against Jagirdars under s. 326. The defendants further alleged that the plaintiffs had failed to pay revenue and their rights had been extinguished under s. 82 of Qa11'1nn Ryot\l'ari. The Tehsildar decreed the suit. The Collector on appeal upheld th,· order. The Commissioner on

further appeal also upheld the order. On revision, the Board of Revenue agreed with the Commissioner and dismissed the revi-sion.

On behalf of the appellant it is contended ( 1) that .in sutt under s. 326 Qanoon Mal, read with s. 163, Qanoon Ryotwari, plaintiff is entitled to recover possession if he is dispossessed from P.rior juridical possession, within six months of the suit, and the question of title is irrelevant in such suit; and (2) that land-lord cannot forcibly enter and drive out the tenant whose tenancy is alleged to have been extinguished.

The relevant statutory provisions are as follows :

"Qanoon Ryotwari

S. 82. The right of the pukhta Maurusi, Milkiyat and Mamuli Maurusi will under the following circumstances;

Sakitul be extinguished

( 3) When the Khatedar keeps in arrears the land revenue of his khata excepting the case where the col-lection of land revenue is ordered to be postponed; ...

S. 137. In case the land revenue for the whole year is not paid before one week of the date fixed for the last instalment the khatedar will be dealt with as follows:-

1 . By issue of process;

2. By arrest of the defaulter;

3. By attachment and sale of movable property;

4. By attachment and sale of immovable property;

5. By confiscation (Jupti) of the khata and ejectment of the defaulter;

6. By auctioning the khata;

Provided if the arrears are due against such khate-G dar who has been good payer ( khush-dehanda) and for some special reason for .some years not by his own mischief but for reason beyond his control, the Suba (Ccllector) will be entitled to accept his instalments upto three years.

S. l 63. Suits of trespass and obstruction between khatedars and between khatedars and other persons will be entertained in that Sega (Dept.) court and limi-tation which described in Section 326 of Qanoon Mal Riyasat Gwalior Samvat 1983 and Sections 326,

327, 328, 330, 331, 332, 333, 334 and 335 so far as they arc applicable or appendices of the Qanoon Mal >hall apply as may be applicable to the suits under 'cction 326 of the said Act.

Qanoon Mal

S. 325. If any person claiming to be in rosscssion nl any agricultuml land desires his name to be entered tn Revenue papers and papers of Patwari. '.hen the Patwari, if in case of actual physical possession enter hb name in accordance with procedure in Khasra and other papers and inform the Malguzar; in case of not being in possession, the cultivator not in .possession shall have the right to file within three years of th.~ date of dispossession suit regular in Court of Tehsil on stamp paper, which may become payable on annual income of "Lagan" according to Scale in Schedule No. 4 pres-cribed. ·

S. 326. ( 1) Cases in respect of the return of poscs-sion which has been disturbed unlawfully (Beja Tor Par) or for prevention of obstruction about agricul-tural lan<ls, thrashing grounds, (Khaliyan) road. forest. grass-pastures, gardens, trees, wells, irrigation and tank' between Maluuzars and cultivators or between culti-vators will be entertained in the summary jurisdiction of the Pargana revenue Court or in the Tappa courts within six ( 6) months and in case of proof of trespass or obstruction, possession and damages will be awarded against the defendant and if the court thinks lit it may also take bonds, quantum whereof will be decided in view of the nature of the trespass or obstruc-~ion.

( 3) Suits beyond this duration will be entertained ;is per section 325 of the Qanoon Mal in the regular jurisdiction."

The Board of Revenue was of the view that in case land reve-nue remains in arrears, the right of tenant get~ extinguished under s. 82 of the Qmwon Ryotwari, but nevertheless the posses-sion of the tenant whose right has been so extinguished i~ not put to an end automatically, and the tenant must be legally dis-possessed. The Board observed :

"Th is is general principle of law that no act can be done by the strength of one's own hands but help of the law should be takel" and the procedure which is

pre~cribed for that act must be acted upon. In this case the petitioner has not obeyed any .Jaw regarding the dis-possession of the opponent after the plaintiff lost his right and he himself went there and took possession."

"tbe Board was further of the view that action for dispossession should have been taken according to s. 13 7 of Qanoon Ryotwari, extracted above. ·

The High· Court, however, came to the conclusion that it was not obligatory on the defe'ldant to have filed suit under s. 137 of Qanoon Ryotwari. The High Court felt that the proviso to s. 137, which enabled the Collector to accept arrears for three years, did not militate against such construction. The High Court was also of the view that under the general Jaw applicable to lessor and lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee. Th.e High Court in~reted s. 163 of Qanoo11 Ryotwari to mean that in pro-ceeding under that section it is not sufficient to det.ermine the question of de-facto possession alone but it is also necessary to · enquire as to whether this possession is or is not wrongful.It seems to us that on true interpretation of the statutory provisions, extracted above, the Board of Revenue came to the correct conclusion. Under s. 82(3) Qanoon Ryo1wari, the right of Khatedar is extinguished if the khatedar keeps in arrears the land revenue of· his khata but there is no automatic extinguish-ment pf his right because s. 137 of Qanoon Ryotwari enables the Collector to accept arrears if the khatedar is good payer ( khush-dehanda) and there are special reasons beyond his control. for not paying the land revenue. The existence of the proviso in-stead of assisting the landlord's contentions assists the tenant's case because if the reasoning of the High Court is accepted to be correct, the proviso would become dead-letter for in every case where there are arrears of land revenue, the landlord would take possession forcibly without trying to recover land revenue under s. 137. Further, s. 163 of Qanoon Ryotwari _clearly provides for suits of the nature described in s. 326 of Qanoon Mal.. Woon we tum to s. 326. it is very similar to s. 9 of the Specific Relief Act, 1877 and it seems to us that the words "distlij'bed unlawfully" in s. 326 mean "disturbed not in due course of Jaw." Otherwise, there is no reason why shorter period of limitation and sum-mary procedure is provided in s. 326 whIJe s. 325 provides longer period of three yea" for suit for possessiol).

Some stress was laid on the· words "in case of proof of tres-H pass" in s. 326 by the leameJ counsel for the respondent. According to him, landlord does not commit trespass when he forcibly enit'rs on land in the possession of tenant whose tenancy

has expired. In our view. in the contel\t, the word ··1rcspa%" here would include forcible entry and dispossession hy the land-lord.

··1rcspa%"

Reference was made to number of English authorities in this behalf but 11 is not neces' 3ry to deal with them because the Jaw in India on this subject is difforent. Under s. 9 of the Specific Relief Act it is well-settled that question of title is irrelevant in suit under that section. As the structure of s. 326 of Qanoon Mal, read with s. 163 of Qa110011 R,votwari, is similar to s. 9 of lhe Specific Relief Act, there is no reason why s. 326 should be interpreted differently.

In Midnapur Zamindary Company Limited v. Nareslz Nara-yan Roy ( [1]), the Privy Council observed :

"Jn India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through Coun."

lo K. K. Verma v. Narai11das C. Malkani('). Chagla. C.J., stated that the law in India was essentially different from the law in England. He observed : "Under the Indian Jaw the possession of tenant who has ceased to be tenant is protected by law. Althougl. he may not have right to continue in may not have right to continue in to continue in continue in pos~­sion after the termination of the tenancy his possession

"Under the Indian Jaw the possession of tenant who has ceased to be tenant is protected by law. Althougl. he may not have right to continue in may not have right to continue in to continue in continue in pos~­sion after the termination of the tenancy his possession is juridical and that possession is protected by statute. Under s. <; of the Specific Relief Act tenant who has ceased to be tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but trespasser who has been thrown out of possession cannot go to Court und.~r s: 9 and claim possess;'Jn against the true owner."

In Yar Molu:mmad v. Lakshmi Das('), the Full Bench of the Allahabad High Court observed :

"No question of title either of the plaintiff or of the defendant can be raised or gone into in that case (under s. 9 of the Specific Relief Act). The plaintiff will be entitled to succec:l without proving any title on which he can fall back upon and the defendant cannot suc-ceed even though he may be in position to establish the best of all titles. The restoration of possession in such suit is, however, always subject to regular

(I) SI lA.293 nt 299.

(2) I.LR. (1954] Born. 9S0at!IS7.

(3) I.LR. )1958) 2 All. 394 nl 4C4.

title suit and the person who has cne real title or even the better tilh\ cannot, ·therefore, be prejudiced in any way by decree. in such suit. It will always oe open to him to establish his title in regular suit and to recover back possdsion." ·

The High Court further observed :

"Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess persori in actual possession without having recourse to court. No person can be allowed to become judge in his own cause. As-observed by Edge, C.J., in Wali Ahfed Khan v. Avodhya Kundu(') :

"The object of the section was to drive the person who wanted to eject person into the proper court and to prevent them from going with high hand and ejecting such persons."

Our attention was invited to the decision of the Calcutta High Court in State of West Bengal v. Birendra Nath Basunia([2]). In that case the High Court refused to issue an order under Art. 226 of the Constitution prohibiting the Government froni. forcibly taking possession of lands which had been validly resumed by Government. We are not concerned with that question here. But we do not agree with the conclusion of the High Court that lessor is entitled in India to use force to throw out his lessee.

In Hillaya Subbaya Hegde v. Narayanappa Timmaya([8 ]) it was observed :

"No doubt, the true owner of property is entitled to retain possession, even though he has obtained it from trespasser by force or other unlawful means : Lillu bin Raghushet v. Annaji Parashram(') and Bandu v. Naba(')."

We are unable to' appreciate how this decision assists the respon-dent. It was not suit under s. 9 of the Specific Relief Act. In Lillu bin Raghushet v. Annaji Parashram(•), it was recognised that "if there is breach of the peace in attempting 'to take pos-session, that 31fords ground for criminal prosecution, and, i r the attempt is successful, for sumrn<:ry _suit also for restoration to possession under section 9 of the Specific Relief Act I of 1877 -Dadabral N(lrsida5 v. The Sub-Collector of Broach."(") In Bandu v. Naba([0]) it was observed by Sargent, C.J., as follows :

"(I) [t891] l.L.R. 13 AU. 537-556. (Zl A.IR. 1955 Cal. 601. t3~ (19ll) 13 B.L.R. 1200. (4) [1881] I.LR. 5 Born. 387-391. (5) [1890] l.L.R. 15,Bom. 238. (6) 7 Bom. H.C. Rep. 82 A.C.J.

:.:10 SUPREME COURT REPORTS.

. "The Indian Legislature has, however, ~rovided .for the summary removal of any one who dispossesses another, whether peaceably or otherwise than by due course of law; but subject to such provision there is. no reason for holding that the rightful owner so dispos-sessing the other is trespasser, and may not rely for the support of his possession on the title vested in him, as he clearly may do by English law .. This would also appear to be the view taken by West, J., in Lillu v. Annaji(') .". · ·

. In our opinion, the law on this point has been correctly stated . by the Privy Council, by Chagla, C.J;;· and by the Full Bench of.· llf '.he Allahabad High Court, !11 the cases cited above.

· · !'.or the aforesaid reasons i.ve hold that the High Court erred ·.·in quashing the order of the Board of Revenue. The appeal is accordingly allowed with costs, judgment of the High Court set aside ·and the ·order of. the Board of Revenue restored.__ _

Appeal allowed. ·

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(I) [1881J l.L.R. 5 Bom. 387-391.