G.A.S. Shanmuga Nadar vs P.S.P. Kandaswami Nadar

Cornish, J.—The question raised in this Revision Petition is whether the suit is a suit by a landlord against a tenant to recover possession

within Section 7, Clause (xi)(cc)of the Court-Fees Act. If it is, the Munsif has jurisdiction to try the suit. But if it is suit governed by Section 7,

Clause (v), the suit is beyond the Munsiff''s jurisdiction. The plaintiff from Marakaiyar under a registered sale deed; that the defendant''s tenancy

had been terminated by Marakaiyar; and that defendant was holding over in spite of that termination of his tenancy and of the plaintiff''s notice to

him to quit possession; and the plaintiff prayed that possession of the land be given to him. On the face of the plaint the plaintiff was claiming to be

the assignee of the reversion from the defendant''s lessor, Marakaiyar. If the assignment is valid it follows that the plaintiff is invested with all the

rights of his assignor in respect of the tenancy; Section 109, Transfer of Property Act. The relief for which he prays is that as such assignee he may

recover possession from the defendant who persists in holding over.

It is clear from the plaint and this alone is the test of the nature of the suit - that the suit purports to be brought within Section, Clause (xi)(cc).

But it has been strongly contended that the particular clause only contemplates a suit where the plaintiff''s title as landlord cannot be denied by the

defendant, and that it has no application to a case, such as the present, where, the plaintiff being the assignee of the original lessor, the defendant is

not estopped from denying his title. I think the fallacy of this argument is that it would make the character of the plaintiff''s suit dependant on the

defence set up in the written statement, and to so hold would be contrary to principle. The character of the plaintiff''s suit must be determined by

his plaint. A plaintiff is dominus litis. He may frame his suit as he pleases. Whether he has a good right of action is another matter, which will be

decided at the trial. But a right to bring an action and a right of action are not, as was pointed out by Lord Esher in Attorney-General v. Lord

Sudeley (1896) L.R. 1 Q.B. 354 the same thing:

What is called a ''right of action'' is not the power of bringing an action. Anybody can bring an action, though he has no right at all. The meaning of

the phrase is, that the person has a right or claim before the action which is determined by the action to be a valid right or claim.

If the plaintiff in the present suit is unable to establish his claim under the alleged assignment his suit will fail and have to be dismissed. But at the

present stage all that can be determined is that on the face of the plaint his claim is as a landlord to recover possession of land from a tenant who is

holding over.

Much reliance was placed by the petitioner''s learned Advocate on Govinda Ram Agarwalla v. Dulu Pada Dutt 32 C.W.N. 1113. But the actual

decision in that case was that a tenant who continued in possession after notice to quit was a trespasser, and accordingly a suit to recover

possession would not come within Section 7, Clause (xi)(cc). But the Court disapproved of this view in Govind Kumar Sen v. Mohini Mohan Sen

ILR (1929) 57 Cal. 349 where it was observed that it would be disastrous if the law was that a landlord would have to bring a suit for declaration

of title and possession whenever the tenant refused to vacate. If a plaintiff chooses to sue for a declaration of his title as landlord and to recover

possession the suit will come within Section 7, Clause (v). See Ramalinga Mudali v. Ramaswamy Aiyar (1928) 29 L.W. 760. But this is not the

kind of suit instituted by the plaintiff in the present case. In my judgment the plaintiff''s suit falls within Section 7, Clause (xi)(cc) and this Revision

Petition must be dismissed with costs.