Patna High Court
Kameshwar Singh vs Chhote Lal Modi And Anr. on 23 July, 1957
Equivalent citations: AIR1958PAT80, AIR 1958 PATNA 80, ILR 36 PAT 1075
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Raj Kishore Prasad, J.
1. This is plaintiff's appeal against the decision of the Additional Subordinate Judge of Monghyr, reversing that of the Munsif, First Court, Monghyr,
2. This appeal arises out of a rent suit brought by the plaintiff-appellant for recovery of mokarrari rent against the respondents. The main dispute between the parties was regarding the rent claimed area.
3. In order to appreciate the controversy between the parties, it is necessary to state a few facts: The rent claimed rnokarrari was created by the plaintiff by virtue of registered documents in which the area mentioned was 601 bighas 18 kathas and 16 dhurs. The original mokarraridar was one Bhekhari Modi who died leaving behind his widow Mst. Par-bati Debi and two sons. In the survey record of rights, which took place in 1909, Mst. Par-bati Debi alone was recorded in the khewat in respect of 275.18 acres of land. The sons of Bhekhari Modi, who were also in existence then, were, however, not recorded. It is admitted that 275.18 acres would be equivalent to 657 bighas.
4. Before the final publication of the record of rights, a suit under Section 106 of the Bihar Tenancy Act was instituted by the landlord against Mst. Parbati Debi, for the decision that 28.96 acres of land, which was equivalent to 69 bighas and odd, had been wrongly recorded in the name of Mst. Parbati Debi in the record of rights and that this ]and belonged to the proprietor, and, as such, the survey entry regarding area was incorrect.
5. The suit was compromised between the parties, and it was decreed accordingly on compromise, according to which the landlord's right to 28.96 acres of land as claimed by hinr in the suit was conceded.
6. The defendants, however, paid rent for a very long time to the landlord in respect of 670 bighas of land, in spite of the decision in the suit under Section 106, B. T. Act. The landlord brought the present rent suit, out of which the present appeal arises, claiming 588 bighas 9 kathas 19 dhurs on the basis of the decision in the suit under Section 106 of the Bihar Tenancy Act.
7. The defendants contested the suit. The main defence was that the decision in the suit under Section 106 of the Bihar Tenancy Act remained inoperative, and, it was never given effect to, and, as such, the area claimed in the plaint was incorrect, and, the correct rent claimed area was 670 bighas. The defendants took another objection also and that was that they had been making the payment of rent by postal money order to the plaintiff which had been refused, and, as such, they were entitled to a full acquittance for the amount sent by money orders under Section 54, Clause 8(a), of the Bibar Tenancy Act.
8. The first Court decreed the plaintiff's suit after negativing the defence, but on appeal by the defendants, the Court of appeal below allowed their appeal and upheld their objections and accordingly modified the decree of the first Court. Against this decision, the plantiff has preferred the present second ap-peal, which has been referred to a Division Bench by Mr. Justice C. P. Sinba.
9. Mr. S. P. Srivastava; in support of the appeal, contended, in the first place, that in the present suit in view of the provisions of Section 109 of the Bihar Tenancy Act, the question of area could not be agitated as it had been settled by the decision in the suit under Section 106 of the Bihar Tenancy Act, previously between the parties. In support of his contention, he relied also on two Bench decisions of this Court in Banke Bihari Lal v. Ram Anugrah Chaudhuri, ILR 10 Pat 337 : (AIR 1931 Pat 215) (A) and Rameshwar Singh Bahadur v. Yumis Momin, 3 Pat LT 130 : 6 Pat LJ 588 : (AIR 1923 Pat 101) (B).
10. Section 109 of the Bihar Tenancy Act is in these terms :
"109. Bar to jurisdiction of Civil Court. --Subject to the provisions of Section 109-A, a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Sections 105 to 108 (both inclusive)."
11. From the plain language of the section itself, it is clear that the Civil Court has no jurisdiction to entertain any suit concerning any matter which has already been the subject of a suit instituted under Section 106 of the Bihar Tenancy Act. A Civil Court trying a rent suit has, therefore, no jurisdiction to decide an issue between the parties which has already been finally and definitely decided by a decision under Section 106 of the B. T. Act. The Civil Court, as such, will have no jurisdiction to pass a decree for an area in excess of the area decided in the proceeding under Section 106 of the B. T. Act, and, if it does so, it would be acting without jurisdiction in view of the provision of Section 109, B. T. Act. But in the present case Section 109 of the Act has no application at all for reasons I more than one.
12. The first reason is that the Court of appeal below has found that the decision, based on the compromise between the parties, in the suit unaer Section 106 of the Bihar Tenancy Act, which has the effect of a decree under Section 107 of the Act, was not given effect to and that it was regarded as a dead letter by the parties. This finding is supported by the receipts admittedly granted by the landlord to the defendants which shew that the defendants have been paying rent for a long time in respect of 670 bighas of land, and not in respect of 588 bighas and odd according to the decision in the suit under Section 106 of the Bihar Tenancy Act.
A decision of a Court in order to be bind-ing upon the parties to it must be alive and, as such, a subsisting and effective decision, and not a decision which has been given a go-bye by the parties themselves and which has never been acted upon and which, with the consent of the parties themselves, has been treated as ineffective and, which has, therefore, remained inoperative. In these circumstances, the decision in the suit under Section 106 of the Bihar Tenancy Act has rightly been not given effect to.
13. The second reason why the decision in the suit under Section 106, B. T. Act, is not binding on the defendants is that the suit was only against Mst. Parbati Debi, obviously because she alone was recorded, although at the time of the suit the two sons of Bhekari, namely, Chhotelal Modi, defendant No. 1, and Thakur Prasad Modi, father of defendant No. 3, were also alive.
In such circumstances, it cannot be said that the above decision would be binding on the son and grandson of Bhekhari, who are the defendants in the suit. The Court of appeal below, therefore, has rightly held that as the defendants were not parties to that suit, the decision therein was not binding against them because they claimed not through Mst. Parbati Debi but from Bhekari whose heirs and legal representatives they are.
14. There is still another reason why Section 106 (sic -- Section 109(?)) of the Bihar Tenancy Act will have no application to the present case. Section 109 of the Act bars the jurisdiction of a Civil Court to entertain any application or suit concerning any matter which has already been the subject of an application made or suit instituted or proceedings taken under Sections 105 to 108 of the Bihar Tenancy Act.
Here there is no question of any suit having been instituted in respect of any matter which was the subject-matter of the suit under Section 106 of the Bihar Tenancy Act. Here the defendants have taken a defence that the decision in the suit under Section 106 of the Bihar Tenancy Act, relied upon by the plaintiff, was ineffective and not binding on the defendants, and, as such, the plea in defence obviously will not be barred under Section 109 of the Act.
Section 109, B. T. Act, though it prohibits a Court from entertaining suits or applications which have formed the subject-matter of a suit under Section 106, B. T. Act, does not prohibit a Court from entertaining a defence which may be at variance with the decision of revenue offi-cers under Section 106, B. T. Act. This view is sup-ported by the Bench decision of this Court in ILR 10 Pat 337 : (AIR 1931 Pat 215) (A), relied upon by the appellant, James, J., who delivered the judgment of the Court in this case and with whom Jwala Prasad, J., agreed, observed.
"Section 109 of the Bengal Tenancy Act may not in express terms prohibit a Civil Court from entertaining a deience which is at variance with a decision under Section 106; but it is clear from the provisions of Section 107(1) of the Bengal Tenancy Act, read with Section 11 of the Civil Procedure Code, that a Court trying a rent suit has no jurisdiction to decide an issue between the parties which has already been finally and definitely decided by a decision under Section 106 of the Bengal Tenancy Act."
I respectfully agree to the above observation of their Lordships, which, in my opinion, bring out the true meaning of Section 109 of the Act. In this view also, Section 109 cannot bar the plea of the defendants that the rent claimed area was incorrect.
15. The case of Banke Bihari Lal, just mentioned, is of no assistance to the appellant. In that appeal, there was no question of the decision in the suit under Section 106 of the Bihar Tenancy Act having not been given effect to and as such having remained inoperative between the parties.
In that case, in spite of the decision under Section 106, B. T. Act, subsequently a decree at variance with it was passed by the Civil Court for Bhaoli rent in respect of certain areas. The question, which came up for consideration, in a subsequent rent suit, was, whether the previous rent decree was a valid decree notwithstanding that it was at variance with the previous decision under Section 106, B. T. Act. James, J., observed that :
"In these circumstances I consider that while the decrees of 1924 ought to be regarded as valid decrees so far as the liability of the parties during the years then in suit are concerned, the decision that bhaoli rent is payable only in respect of certain areas cannot be treated as res judicata to determine the areas for which such rent shall be payable in subsequent years, in defiance of the provisions of Section 107 of the Bengal Tenancy Act."
In these circumstances, that case cannot apply to the present case.
16. The other case of 3 Pat LT 130 : 6 Pat LJ 588 : (AIR 1923 Pat 101) (B), relied upon by the appellant also does not help him. There also there was no question as to the decision in the suit under Section 106 of the Bihar Tenancy Act remaining inoperative.
17. In both the cases relied upon by the appellant, the decision under Section 106, B. T. Act, was operative and subsisting, and still it was ignored. In these circumstances, Section 109, B. T. Act, was held to be a bar.
18. For the above reasons, in my judgment, the decision of the Court of appeal below that the area mentioned in the plaint is not the correct area, and that the area claim-gd by the defendants is the correct rent claimed area, must, therefore, be affirmed.
19. Mr. Srivastava next contended that the Court of appeal below is wrong in applying Section 54 (3a) of the Bihar Tenancy Act to the present case inasmuch as Sub-s. (3a) of Section 54 does not apply to mokarrari rent, because there is no mention of any tenure in that sub-section, In my opinion, this contention is not well founded, and, it cannot be sustained on the language of Section 54 itself.
20. Section 54, with its Sub-sections (1), (2) and (3a), with which we are concerned, is in these terms :
''54. Time and place of payment of rent. --
(1) Every tenant or the mortgagee of his holding or tenure or of a portion of his holding or tenure shall pay each instalment of rent before sunset of the day on which it falls due.
(2) The payment shall, except in cases where a tenant or the mortgagee of his holding or tenure or of a portion of his holding or tenure is allowed under this Act to deposit his rent, be made at the landlord's village-office, or at such other convenient place as may be appointed in that behalf by the landlord or by postal money order :
Provided that if payment of rent or a por-tion of rent by postal money order is accepted, an entry in the postal money order shall not be evidence of the area of the holding, the amount of rent payable or of the existence of the relationship of landlord and tenant or the mortgagee of his holding or tenure or of a portion of his holding or tenure between the persons who are described aa such in the postal money order form.
xxxxx 3(a) Where rent or a portion of rent is nomitted by postal money order, an entry in the postal money order form as to the amount of rent remitted shall operate as an acquittance for the amount of rent so remitted in the same manner and to the same extent as if the amount of rent had been received by the landlord."
21. Sub-section (3a) has to be read along with Sub-sections (1) and (2) of Section 54. It is true Sub-section (3a) does not make any mention either of any holding or a tenure, which words occur both in Sub-section (1) and Sub-section (2). Sub-section (1) provides that a tenant of a holding or a tenure shall pay each instalment of rent before sunset of the day on which it falls due.
Sub-section (2) provides that it is open to such a tenant of a holding or a tenure even to make the payment by postal money order. Reading, therefore, Sub-section (1) and Sub-section (2) of Section 54 together, it is clear enough that the rent of tenure also can be remitted even by postal money order by the tenure-holder concerned. What would be the consequence of remittance of such a rent by postal money order is provided in the proviso to Sub-section (2) and in Sub-section (3a).
The proviso to Sub-section (2) provides that if payment of rent or a portion of it by postal money order is accepted, then in such a case an entry in the postal money order shall not be evidence either of the area of the holding or the amount of rent payable or of the existence of the relationship of landlord and tenant between the persons who are described as such in the postal money order. Sub-section (3a) provides that an entry in the postal money order form as to the amount of rent remitted shall operate as an acquittance for the amount of rent so remitted in the same manner and to the same extent as if the amount of rent had been received by the landlord.
Reading, therefore, Sub-section (2) and Sub-section (3a) together, it is plain that although the entry in the postal money order shall not be evidence of the amount of rent payable for the holding or the tenure, still it shall operate as an acquittance for the amount so remitted, and, the tenant of the holding or the tenure-holder will be entitled to get a deduction of the amount remitted by money order from the claim of the plaintiff if that has not been done by the plaintiff himself. There is, therefore, no doubt that Sub-section (3a) of Section 54 will apply to a mokarrari tenure also.
22. Mr. Srivastava, then contended that the amount remitted shall operate as an acquittance only if the postal money order is accepted by the landlord and not when it is refused by him, because proviso to Sub-section (2) mentions that the consequences postulated by it will ensue only when the payment of rent by postal money order is accepted. Mr. Srivastava, therefore, contended that the consequence envisaged by Sub-section (3a) will also come into operation only when the payment of rent by postal money order is accepted, but not when it is refused. I cannot accept this argument as correct.
If the payment of rent by postal money order is accepted as provided in Sub-section (2), there is no question of the amount so accepted operating as acquittance for it, because the landlord having accepted the payment is bound to give deduction for it in his claim. But what would be the effect if payment of rent sent by postal money order is not accepted by the landlord is provided in Sub-section (3a).
The Legislature has obviously, for the benefit of the tenant, enacted Sub-section (3a) and. provided therein that even if the payment of rent by postal money order is refused by the landlord, he is to be punished to this extent only that the amount sent by postal money order and refused by the landlord shall operate as an acquittance for the amount of rent so remitted in the manner and to the same extent aa if the amount of rent had been received by the landlord.
23. The words 'as if the amount of rent had been received by the landlord' are clear manifestation of the intention of the Legislature, and they supply the clue to the true meaning of Sub-section (33), in Section 54, of the Act. These words clearly indicate that Sub-section (3a) contemplates the case of refusal of the postal money order, sent by the tenant, by the landlord : otherwise Sub-section (3a) would have been redundant because Sub-section (2) is already there which provides for a case of acceptance of the postal money order by the landlord. That reading of the matter is, I think the plain reading of Sub-section (3a) of Section 54 of the Act--
24. In my opinion, therefore, from the above scheme of Section 54, it is absolutely clear that Sub-section (3a) will come into play only when the payment of rent by postal money order sent by the tenure-holder or the tenant of the holding has been refused by the landlord, and not otherwise. In this view of the true construction of Sub-section (3a) of Section 54 of the Bihar Tenancy Act, is my opinion, there is no sub-stance in the contention of Mr. Srivastava, and, accordingly, it is rejected.
25. For the reasons given above, I hold that there is no merit in the appeal, which is, accordingly, dismissed with costs.
Ramaswami, C.J.
26. I agree.