Allahabad High Court
Sham Das vs Bahadur Singh And Anr. on 9 December, 1920
Equivalent citations: 60IND. CAS.831A, AIR 1921 ALLAHABAD 196
JUDGMENT
1. It appears that Hanuman Pershad was the zemindar of the village of Bamni. Sham Das, alleging himself to be the rent-free grantee of certain plots situate in that village, sued one Shibban for the recovery of rent describing him as a sub tenant. The latter pleaded that he was the tenant of Hanuman Prasad, the zemindar and had in good faith paid the amount to him on the 1st of July 1916. The Bent Court allowed the plea in defense and dismissed the claim of Sham Das. Thereupon the latter brought the suit, out of which this appeal has arisen, for the recovery of Rs. 37 principal and interest, the amount of the rent realised by Hanuman Prasad. Hanuman Prasad died before the institution of the suit. It was brought against his legal representatives. Sham Das alleged in his plaint that he was rent-free grantee of the plots of which rent had been realised by Hanuman Prasad and that he (Sham Das) had been possession for a number of years and had acquired proprietary rights in the said plots. He, therefore, prayed that he should be declared the proprietor of those plots and the defendants should be declared to have no rights to realise rents in respect of those plots, and as such proprietor, he (Sham Dass) prayed for the recovery of Rs. 30 the principal amount realised from Shibban by Hanuman Prasad and R9. 7 for interest. The defendants resisted the suit by denying the allegations made in the plaint. They denied that the plaintiff was a rent-free grantee or that by lapse of time he had acquired proprietary interest in the plots in question. They pleaded that their father had rightly realised the rent from Shibban. The learned Munsif, after carefully considering the pleading and evidence in the case, came to the conclusion that he could not give a declaration to the plaintiff as to his having become a proprietor of the plots in question. Such a declaration the learned Munsif held could only be made by a Revenue Court. He, however, found on the evidence that the plaintiff was a rent-free grantee of the plots in dispute and the rent had been wrongfully realised by Hanuman Prasad. He held that as such rent-free grantee Sham Das was entitled to recover the rent from his subtenant Shibban. The claim was accordingly decreed. The defendants preferred an appeal and the learned Direct Judge reversed the decree of the first Court on the ground that the suit of the plaintiff was not maintainable in a Civil Court. The other points raised in the case were not decided by the learned District Judge.
2. In second appeal before us the decree of the learned District Judge is challenged. It is contended that, though the plaintiff had asked for something which could not be granted by a Civil Court, the decree of the Munsif was, nevertheless, correct in as much as the plaintiff was awarded the right to recover the rent which had been wrongfully realised by the zemindar. The Court of first instance, no doubt, found that the plaintiff was a rent free grantee but that finding was merely ancillary to the principal relief relating to the recovery of money wrongfully realised by the zemindar. On behalf of the respondents it is urged that the present suit is not maintainable in a Civil Court, The principal relief that the plaintiff seeks by his plaint is that he should declared proprietor of the plots in question. The relief granted to him by the first Court that he is a rent free grantee is no doubt a lesser relief, but even such a relief cannot be granted by a Civil Court. The learned Vakil for the respondents relies on the provisions of Chapter X, Act II of 1901, in support of his argument and on two rulings in Nannhu v. Thakurji Maharaj 46 Ind. Cas. 764 : 16 A.L.J. 881 : 41 A. 37 and Baldeo Singh v. Mardan Singh 6 Ind. Cas. 425 : 7 A.L.J. 818. We do not think that the cases relied upon by the learned Vakil for the respondents or Chapter X, Act II of 1901, have any application to the present case. The plaintiff was really suing to recover the rent which, according to him, had been wrongly realised by the zemindar Hanuman Prasad. His rent suit was dismissed under Section 198. In Clause (2) of the said section the only remedy open to the plaintiff was to go to a Civil Court and get a declaration that he was the person entitled to recover rent. In order to determine the question whether the plaintiff was entitled to recover rent from Shibban it was necessary for the learned Mnnsif to decide his status in relation to the plots in question. The conduct of the Zemindar in realising the rent from the sub-tenant virtually amounted to the dispossession of the plaintiff. If the latter had to bring a suit for possession he would have had to go to a Civil Court. This view is borne out by the case of Gobind Rai v. Banwari Lal 58 Ind. Cas. 594 : 18 A.L.J. 388 : 2 U.P.L.R. (A.) 93 : 42 A. 412. It is true that in the present case the plaintiff does not formally seek to recover possession of the plots of which rent was taken wrongfully by Hanuman Prasad but, practically, the present suit is to recover possession of the said plots by establishing his title to recover rent from Shibban. We think that the claim of the plaintiff in the form in which it was decreed by the learned Munsif is maintainable in a Civil Court. We, therefore, set aside the decree of the lower Appeal Court and remand the case under Order XLT, Rule 23, to it for disposal according to law. The costs in this Court including fees on the higher scale will abide the event.