Authored By : Harry Lushington Stephen, Nalini RanjanChatterjee, Mullick

Harry Lushington Stephen, J.

1. This is a reference under sec. 113 of the Code from theMunsif of Darjeeling. In a suit before him the Plaintiff alleged that he hadbeen ousted from the possession of land by the Defendant, who purported to behis landlord. He therefore sought relief under sec. 9 of the Specific ReliefAct. Act X of 1859 is in force in the district where the cause of action aroseand in view of sec. 23 (6) of that Act the Munsif refers to us the questionwhether the tenant is precluded from bringing a suit under the Specific ReliefAct. Sc. 23 of Act X of 1859 as far as we are concerned with it is as follows:"(6) all suits to recover the occupancy or possession of any land fromwhich a tenant has been illegally ejected by the person entitled to receiverent for the same shall be cognizable by the Collectors of Land Revenue andshall be instituted and tried under the provisions of this Act and shall not becognizable in any other Court or by any other officer, or in any othermanner."

2. Sec. 9 of the Specific Relief Act provides that "ifany person is dispossessed without his consent of immoveable property otherwisethan in due course of law he may, by suit recover possession thereof."

3. If a man is illegally ejected under the former section itseems to me that it necessarily follows that he is dispossessed under thelatter. Also I see no reason for confining the illegality mentioned in Act X tosomething which is illegal by reason of noncompliance with the provisions ofthat Act as it is suggested we should,

4. I am therefore of opinion that the effect of these twoenactments when read together is that the Specific Relief Act confers a rightof action of a general nature, which is subject to the particular exceptionprovided by section 23 (6) of the Rent Act. The Plaintiffs case as set out inhis claim comes within the terms of the last-named enactment, if the Defendantis entitled to receive rent from him. The question referred to us assumes thatthis is so. Consequently in my opinion the Plaintiff is not entitled to bring asuit under the Specific Relief Act.

5. The result of this is that the answer to the Court belowis that the Plaintiff is not entitled to bring this suit under the SpecificRelief Act. As at present advised we are of opinion that the question ofrelationship of landlord and tenant is open to argument before the lowerAppellate Court.

Nalini Ranjan Chatterjee, J.

6. This is a reference by the Munsif of Darje ling undersec. 113 of the Code of Civil Procedure in a suit instituted in his Court underthe provisions of sec. 9 of the Specific Relief Act, and the question submittedfor opinion is whether "owing to the relationship of landlord and tenantexisting between the parties, the tenant is precluded from bringing a suit forspecific relief under sec. 9 of that Ac, which is in force in this district,and cannot he do so in spite of the provisions laid down in Rent Act X of 1859,sec. 23 (6) of which lays down that all suits between landlord and tenant arecognizable by the Collector and by that Court alone."

7. No evidence has yet been taken in the case, but the questionwhether sec. 23, cl. (6) of Act X of 1859 bars the suit, carmine only if therewas relation of landlord and tenant between the parties before the Plaintiffwas ejected. If there was none, that section would have no operation at all ina case coming under that section. The questions whether the tenancy had come toan end at the time of the ejectment and whether the landlord had a light toeject must be decided after evidence is taken, and cannot be assumed.

8. The Plaintiff, as stated by the Munsif in the reference,alleged forcible dispossession and not illegal ejectment, and the questionfor consideration is whether a suit by a tenant who has been forciblydispossessed comes within cl. (6) of sec. 23 of Act X of 1859.

9. Act X of 1859 provides for ejectment of tenants incertain cases. Sec. 21 says that a raiyat is liable to be ejected for arrearsof rent, but adds that no raiyat having a right of occupancy or holding under apattah the term of which has not expired, shall be ejected otherwise than inexecution of a decree or order under the provisions of the Act. There aresimilar provisions with respect to farmers and temporary leaseholders in sec.22 Then comes sec. 23 which lays down that certain classes of suits mentionedin the several clauses of that section shall be cognizable by the CollectorsCourt, and not by any other Court. Cl. (5) mentions suits to eject any raiyator cancel any lease on account of the non-payment of arrears of rent, or onaccount of a breach of the conditions of any contract, by which a raiyat may beliable to ejectment, or a lease may be liable to be cancelled, and cl. (6)mentions suits to recover the occupancy or possession of any land, farm ortenure from which a raiyat, fanner or tenant has been illegally ejected by theperson entitled to receive rents for the same. Sec. 25 provides that if anyzemindar or other person in receipt of rent requires assistance to eject anycultivator not having a right of occupancy or to eject any farmer or othertenant holding only for a limited period after the determination of his leaseor tenancy, or to enforce any attachment or ejectment expressly authorised byany Regulation or Act, he shall make application to the Collector and theCollector shall proceed thereupon to enquire into the case, and pass orders inthe manner provided for suits under the Act. In will appear from the aboveprovisions that there are cases in which a landlord may have a right to eject.But he may not pursue that right in a legal manner and I think, it is only suchcases that are contemned by sec. 23, cl. (6). The team ejectment has aspecial signification between landlords and tenants and is not the same thingas dispossession. The word ejected in cl. (6) of sec. 23 must be taken tohave been used in the same sense in which it is used in cl. (5) of that sectionwhich provides for suits by landlords to eject tenants, and in sec. 25 whichprovides for applications to the Collector for assistance to eject tenants. TheAct itself draws a distinction between ejectment and dispossession. Theword dispossess is used in sec. 28 of the Act which provides forapplications to the Collector by proprietors who may desire to dispossessgrantees of invalid revenue-free land, i.e., who are not tenants.

10. Suits for recovery of possession by tenants illegallyejected are a well-known class of suits, and sec. 7, cl. XI (e) of the CourtFees Act provides that in a suit to recover the occupancy of land from which atenant has been illegally ejected by the landlord, the Court-fee payable is theamount of fee payable on the rent for the preceding year. In the case of SundarMal v. Jessie Caroline 16 C.L.J. 875 (1912), the learned Judges with referenceto the above clause of the Court Fees Act observed : "The clause does notdescribe the suit as one for recovery of possession by a tenant who has beendispossessed by his landlord : the suit mentioned is one for recovery ofoccupancy of land from which the tenant has been illegally ejected by thelandlord, that is ejected nominally in conformity with, but in reality incontravention of, the provisions of the rent law for ejectment of tenants bylandlords. When we look to the sub-clauses which precede and follow the sub-cl.(e), it becomes fairly obvious that the Legislature had most probably in viewsuits of the description mentioned in sec. 23, cl. (6) of Act X of 1859; and itis worthy of note that sec. 139 of the Chotanagpore Tenancy Act of 1908 alsorefers to suits of the same class; these suits are triable exclusively byRevenue Courts." In the case of Khettia Nath Ghattak v. Peru Bauri 15C.W.N. 837 (1911), it was held that sec. 139, cl. (5) of the ChotanagporeTenancy Act (VI of 1908 B.C.), was no bar to a tenant dispossessed by alandlord instituting a suit under sec. 9 of the Specific Relief Act, forrecovery of possession. The decision, no doubt, proceeded on the ground thatcl. (5) of that section only barred applications and not suits. But thequestion whether a case of forcible dispossession (as distinguished from a caseof illegal ejectment) is barred by sec. 139, was not necessary to be raised,and does not appear to have been raised, before the learned Judges in thatcase, and it was sufficient, for the purposes of that case, to say that it was onlyapplications, and not suits, that were barred by the provisions of sec. 139 ofthat Act.

11. The case of Janardan Achatjee v. Haradhan Acharjee 9W.R. 513 (1868) was heard by a Full Bench consisting of Peacock, C.J., SetonKarr, L S. Jackson, Phear and Macpherson, JJ., and Sir Barnes Peacock, C.J., indelivering the judgment of the Full Bench said with reference to the scope of asuit under sec. 23 (6) of Act X of 1859: "In suits under cl. (6), sec. 23,Act X of 1859, it is necessary to determine whether the Plaintiff has beenillegally ejected which involves the question whether the tenancy was at an endor not. If after the expiration of a tenancy, a zemindar wishes to obtainpossession without resorting to a Court of law, he may apply under sec. 25, forthe assistance of the Collector, who will thereupon summarily enquire into thecase and if he finds that the tenancy is at an end will render assistance inturning the tenant out. If, however, the zemindar acts of his own authority andwithout the intervention of a Court of law, or of the Collector, he comeswithin sec. 15 of Act XIV of 1859, and if the raiyat sue him in the Civil Courtwithin six months, he will be entitled to recover possession without referenceto the title of the zemindar to eject him. If, however, he sue in theCollectors Court under sec. 23 the question is open, as to whether the tenancywas at an end or not : and if at an end, he must fail in his suit,"

12. In a suit under sec. 23, cl. (6) of Act X of 1859, thePlaintiff must show that the tenancy was not at an end, and that he had beenejected in an illegal manner. That is a suit different from a suit under sec. 9of the Specific Relief Act based upon the ground of previous possession.

13. I regret I am unable to agree in the view taken by raylearned colleagues and I am of opinion that where a tenant on beingdispossessed seeks to recover possession on the mere strength of his previouspossession, irrespective of the right of the landlord to eject him, a suit canbe maintained by him under sec. 9 of the Specific Relief Act and that sec. 23,cl. (6) of Act X of 1859 is no bar to such a suit and I would answer thereference accordingly.

Mullick, J.

14. I assume that the Munsif, who has referred this case issatisfied that the relationship of landlord and tenant exists between thePlaintiff and Defendant No. 1 and that the tenant has been illegally ejected.An attempt has been made to show on behalf of the tenant that the pleadings donot establish the relationship of landlord and tenant but I do not think we canenter in a determine ion of this point in this Court. If the relationship oflandlord and tenant does not exist then clearly sec. 23, Act X 1859, will notapply. It is next argued on behalf of the tenant that sec. 23 does not applybecause the dispossession of which the Plaintiff complains does not amount toillegal ejectment within the meaning of cl. (6), sec. 23, Act X of 1859,inasmuch as illegal ejectment in cl. (6) refers to eject men for nonpayment ofarrears of rent or on account of a breach of the conditions of the tenancy asmentioned in cl. (5). There is no authority for such a contention. I see noreason for contracting the meaning of the word ejectment and in my opinionillegal ejectment in cl. (6) means dispossession without consent otherwise thanin due course of law. Therefore a suit under sec. 9, Specific Relief Act, andalso one under cl. (6), sec. 23, Act X of 1859, would lie on the same cause ofaction. This being so, the only point necessary for determination is whether byreason of the special provisions of sec. 23, Act X of 1859, the former suit isbarred by the latter. I think the answer must be in the affirmative. In the caseof Khetha Nath Ghattak v. Peru Bauri 15 C.W.N. 387 (1911), a similar questionarose with reference to the interpretation of sees. 71 and 139 of theChotanagpore Tenancy Act (VI of 1908, B.C.) the provisions of which sectionsare founded on and are almost identical with those of sec. 25 and sec. 23respectively of Act X of 1859. It was held in that case that a suit by a tenantfor recovery of possession under sec. 9, Act I of 1877, was not barred by theterms of sec. 139, Act VI of 1908, B.C. The decision turned on the circumstancethat cl. (5), sec. 139, authorises the making of an application asdistinguished from the insertion of a suit, and the learned Judges help 1 byimplication that if the expression "suits" had been used in sec. 139a suit under the general law would have been barred by the special provisionsof the local law. Adopting this line of reasoning I think it is clear that asuit for recovery of possession by a tenant under sec. 9, Act I of 1877, isbarred by the terms of sec. 23, Act X of 1859. It is scarcely necessary toobserve that if the tenancy has been de ermined it is open to the landlordeither to proceed under sec. 25, Act X of 1859, or to rake possession proprietymotu and that in the latter event is competent to the tenant to resort to asummary suit for possession. This has been held in Janardan Achatjee v.Haradhan Achatjee 9 W.R. 518 (1868). The result is that if the relationship oflandlord and tenant exists the present suit under sec. 9 of the Specific ReliefAct which has been instituted before the Munsif must fail for want ofjurisdiction. I agree therefore with the conclusion arrived at by my learnedbrother Stephen.

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Jamla Singh vs. E.J. Kingsley and Ors. (30.07.1913 - CALHC)