Diman Singh vs Rameshwar

Shivdayal, J.—The respondent''s suit was for declaration of pucca tenancy rights and possession on the allegations that his father Chakrapan alias Chakola was the Pukhta Dakhilkar (occupancy tenant) of survey Nos. 3136, 3137/1, 3137/2 and 3138 in village Bagpura, Pargana Morena. Chakrapan died in Samvat year 1995. At that time the plaintiff was of about two or three years and was the only heir of the deceased Chakrapan. However, taking advantage of his minority, the Patwari struck out his name in Samvat year 1996, and defendant Diman Singh, with the collusion of the Zemindar and the Patwari, dispossessed the plaintiff by wrongfully occupying the land. The plaintiff attained the age of majority on Baisakh Sudi 12, Samvat 2012 (corresponding to May 25, 1953). This suit was filed on November 4, 1954. The suit was resisted by the defendant on several grounds. A decree in favour of the Plaintiff was passed by the trial Judge and the same has been maintained by the first Appellate Court.

Shri Patankar first of all contends that the Civil Court had no jurisdiction to try the suit because under sections 325 and 326 of the Qanoon Mal Gwalior State it was only the Revenue Court which was competent to hear this suit. The argument is based on the fact that cause of action arose on July 1, 1939, when Qanoon Mal was in force. In my opinion this contention is untenable. It is the date on which a suit is instituted that the propriety of the remedy will be determined. It is true that the right to sue and get the defendant dispossessed accrued to the plaintiff, as alleged in the plaint on 1-1-1939 but the suit was instituted on 4-11-1954. On the last mentioned date sections 325 and 326 stood protants repealed by virtue of section 41 of the Zamindari Abolition Act. Provisions of Pt II of the Madhya Bharat Tenancy Act, Samvat 2007 became applicable on the abolition of Zamindari on 2-10-1951, and similar provisions of Qanoon Mal ceased to apply on and from that date In part II of the Madhya Bharat Tenancy Act fall section 91, 92 and 93. It is therefore the M.B. Tenancy Act which be came applicable and the plaintiff could have instituted a suit under that Act for the reinstatement on the ground of unlawful dispossession. As soon as I find that section 91 of the M.B. Tenancy Act is applicable, it cannot be doubted that the Civil Court has jurisdiction to entertain such a suit. I am unable to accept Shri Patankar''s argument that section 93 of that Act allows a civil suit to be instituted only after the remedy provided in sections 91 and 92 has been exhausted. There is no provision in the Tenancy Act which takes away the powers of the civil Court to try the question of title. Section 147 of the Tenancy Act does not oust the civil Court of its jurisdiction because neither section 91 or 92 nor any other section of the Tenancy Act provides a title suit. It must then be held that the civil Court had jurisdiction to try the suit.

Then it is argued by Shri Patankar that on the question of the plaintiff''s title the appellate Court did not appreciate the evidence of the parties fully. Both the Courts relied on the evidence of Totaram, Meghsingh and Murlidhar. Learned counsel strenuously emphasises those portions of their statements where they said that the plaintiff appeared in the village several years after Chakrapan''s death and claimed to be his son and that they all just believed him to be Chakrapan''s on. After carefully perusing the judgment of the appellate Court I find that this argument was considered by it and in view of the entire evidence it definitely found that the plaintiff was Chakrapan''s son. That being a concurrent finding of the two Courts below, however erroneous it may be, I cannot go into it. (Pattabhiseetaramaya, AIR 1959 S.C. 57).

It is next maintained for the defendant that because of the abolition of Zamindari and the consequential change in the law, he became a pucca tenant by virtue of section 41 of that Act and cannot now be dispossessed whatever may have been the origin and nature of his possession. To me it is quite clear from the provisions of the Madhya Bharat Zamindari Abolition Act thereinafter referred to as the Abolition Act) that there was expropriation of the Zamindari; his rights, title and interests vested in the State. It will be appropriate to say that this was a case of change of masters so far as the tenant were concerned. It was for the legislature either to determine by Statute all rights of the pre-existing tenants as well, or to recognise them. The Act does not expressly provide for abolition of tenancy rights. There are no provisions for the tenant like those contained in section 4 of the Act regarding the Zamindar. On the contrary, section 41 in terms extends recognition to the pre-existing tenants and confers on them tenancy rights vis-a-vis the new landlord (State).

The legislature did not leave it to the sweet will of the executive to drive them away. No doubt the scope and extent of some of their rights were enlarged, some curtailed. But it is conspicuous that these modifications in the tenancy rights concerned only to the relationship which existed between the Zamindar and the tenant on 1-10-1951. I am unable to find any provision either in the Zamindari Abolition Act or in the Madhya Bharat Land Revenue and Tenancy Act (hereinafter called the Tenancy Act, which became applicable on 2-10-1951 to the tenants in the new set up) which in any way affects the rights and liabilities between a tenant and a tenant or between a tenant and a stranger. On (the above premises it must be held that if a tenant had a right on 1-10-51 against another tenant or a stranger to be reinstated in possession that right was not taken away by change of law on 2 10-51.

Section 41 of the Zamindari Abolition Act cannot be interpreted to mean that the recognition was given to every person whoever was in actual occupation of the land on 1-10-51. If actual occupation were the crux, it would lead to absurdity in a case where the tenant was forcibly thrown out of the holding on 1-10-1951, at a time when he could not go to the Court on that every day fir reinstatement and invoke the benefit of section 47 of the Abolition Act (which applies to pending cases) And on 2-10-1951 he would be refused the relief just because he was not in occupation on 1-10-1951. It then comes to this that where a tenant had a subsisting right on 1-10-51 to be reinstated, that relief cannot be denied to him merely because of the change of law.

Shri Patankar relied on Daryav Singh Vs. Pyarelal, 1960 JLJ 927. In my opinion that case has no application here. That is a decision on the peculiar facts of that case. Daryavsingh held certain lands as a Gair Kanooni Kastkar prior to the passing of the Zamindari Abolition Act. He was ejected from the holding (sic) his proprietors under sections 318 and 319 of the Quanoon Mal. The proprietors in read of cultivating the land himself for which purpose he had obtained the ejectment let out the holding to Pyarelal, a new tenant. In such a case 319 (A) of the Quanoon Mal gave to the previous tenant a right to he reinstated. However, Daryavsingh instituted a suit for reinstatement on 6-10-1951. But prior to that date, the M.B. Zamindari Abolition Act had come into force on 2-10-1951. The learned Judges constituting the Division Bench held that the possession of the subsequent tenant was lawful, although a right vested in the petitioner to be reinstated. It was pointed out that there was a clear distinction between possession which was illegal in the sense of its being contrary to the specific prohibition of law, and possession which is liable to be deprived of because of a superior right recognised by law. Evidently Daryav Singh''s case was of a "superior right recognised by law". I cannot agree with Shri Dixit that I should refer the question to a larger Bench for reconsideration of the question, because the learned Judges themselves observed that they were not considering a case of a tenant who had been thrown out by force or fraud. In the present case the defendant was a trespasser, as shown below. He did not state either in the written statement or in his deposition to the Court how and when he entered the land Here the plaintiff was dispossessed by the appellant on the death of the plaintiff''s father when the plaintiff was a minor and at a time when the Quanoon Mal was in force.

An argument was endeavoured to be built up by Shri Patankar on the assumption that the plaintiff having gone away from the village with his mother, the holding could be entrusted (supurdgi) to another person by the Zamindar, by virtue of section 324 of the Quanoon Mal, and that on the expiry of three years the plaintiff''s rights extinguished u/s 258 (3) of the Quanoon Mal. In the first place, no such assumption can be made in the absence of pleadings nor is there any proof of all this. Secondly, it is difficult to apply section 324 to a minor. In the present case, evidence indicates that the plaintiff was a lad of two or three years when his mother took him to another village. This cannot be called abandonment envisages a conscious act by a person who is capable of relinquishing his rights. If at all, by stretch of argument, the provisions of section 324 can be applied against the plaintiff, the starting, point for the purposes of section 258 (3) would be the date when he attained the age of eightee. Shri Patankar lays some stress on entry in. Khasra Samvat 2001 where the appellant''s name is entered in the column of Kashtkar (tenant). It appears to me that ''Khasra'' is the annual village paper which must show in respect of each holding as to who is in occupation of it. There was no column in the prescribed form of Khasra where the names of trespassers or of those persons who arrogated to themselves the status of tenants could be entered. The Patwari might have entered the appellants name in that column because he was actually occupying the holding in that year. The only presumption which arises from the entry is that he was in occupation of that holding, but no more. It cannot he extended to say that he was a tenant or Surpurdgidar u/s 324. The appellant produced no Patta from the Zamindar, nor did he produce the Zamindar in evidence, nor did he produce Syaha entries of any year to show that he was paying Lagan to the Zamindar. No proceedings were taken u/s 316 of the Quanoon Mal by the Zamindar. Even if the right of the petitioner was extinguished u/s 258 it was only vis-a-vis the Zamindar and not a third person. In the absence of defendant''s pleading or proof that he was introduced on the land by the Zamindar as tenant or Supurdgidar, no such presumption can be made in his favour. In fact there is not an lot a of evidence to find that case which Shri Patankar tried to construct in this second appeal. Learned counsel relying on Catholic Vs. Catholic, AIR 1954 SC 526 and AIR 1946 59 (Privy Council) urges that even if the defendant did not plead a specific case it was for the plaintiff to establish his own case otherwise he could not succeed. All that has been laid down is that the plaintiff must establish his own title and cannot take advantage of the defendant''s failure to establish his. I do not see how the defendant can avail himself of that proposition here. As soon as it is established that the plaintiff is the son of Chakrapan and that his right subsisted on the date of the suit, it is undoubtedly for the defendant to prove a better title. That he could do only by pleading a definite case to show how the plaintiff''s right extinguished and he (defendant) acquired or prescribed a title for himself.

The only possible conclusion is that the appellant was a trespasser, having entered into the land by force. That being so, the plaintiff had a right of reinstatement against him and that right was subsisting on 1-10-1951 Daryavsingh''s case does not, there fore, apply here.

This brings me to the question of limitation. I am unable to accept Shri Patankar''s argument that the period of limitation for this suit would be three years u/s 326 or 325 of the Quanoon Mal. This argument was good if the plaintiff had acquired the age of majority at a time when the Quanoon Mal was applicable Statute of limitation is an the live law. It is lex fori; that law would apply which was in force on the date of the suit. If the plaintiff attained the age of majority after 2-10-1951 his right to sue for reinstatement could be enforced only under the Madhya Bharat Tenancy Act. The remedy which existed under the Quanoon Mal could not be invoked because Part II of the. Tenancy Act became applicable on 2-10-1951. That being so, limitation would be governed by the Madhya Bharat Tenancy Act and the Limitation Act. Obviously Article 142 or 144 applies. This suit was instituted on 4-11-54. By virtue of Sections 6 and 8 of Limitation Act, the plaintiff''s suit was within time only if it was instituted within three years of his attaining majority. To put it differently, he must establish that he was born on or after 4-11-33. The trial Judge and the first appellate Court have both re order a concurrent finding of fact that Chakrapani was born towards the end of Samvat year, 1990. That conclusion is based on the evidence that Chakrapan died in Samvat year 1993 and that the plaintiff was at that time of two and a half or three years. It also seems to have weighed with the Court that the plaintiff averred a definite date of his birth while the defendant did not allege any other. Both sides led evidence on the is us and the Courts below were entitled to reach any finding. The finding is one of fact and it cannot be said that there is no evidence to support it. In second appeal I cannot re-weigh the evidence but have to accept the finding of fact.

This appeal is dismissed with costs.