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TMI Blog1931 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been decided that plaintiffs are the owners in possession of 4 bighas and 12 biswas, this decision is final between the parties and it is binding upon them. 5. Paragraph 5 stated: A case has also been fought between the parties in the revenue Court which ordered that these plaintiffs are the owners of the property in dispute. 6. Now the history of the case which we shall have to set out in some detail, suggests that what the plaintiffs really meant by these pleadings was that they were the owners of 3/4ths (thus wrongly described in the judgments) of a fixed rate tenancy, while the defendants were the owners of the remaining l/4th, that the plaintiffs and the defendants were not joint tenants of the whole fixed rate tenancy, but owned entirely separately from each other their own shares, and that therefore the defendants in interfering with the plaintiffs' collection of their own shares of the rents due by the subtenants were acting as trespassers. 7. The defendants pleaded that the rights of the plaintiffs or their predecessors-in-title to fixed rate tenancy in three-quarters had ceased as long ago as 25th June 1912, as a result of the ejectment suit brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent suit which was instituted on 2nd September 1927. The plaintiffs say that defendants 1 and 2 denied the rights of the plaintiffs in June 1925, and date their cause of action from that denial, and also from 4th April 1923, when the last of the rent suits was decided against them in appeal. The trial Court dismissed the suit with costs. The lower appellate Court gave the plaintiffs the declaration asked for and is silent as to injunction. The defendants now appeal. Two main questions arise. First, whether Act 3 of 1926, Section 99, applies to ejectments or obstruction to possession occurring before 7th September 1926. Secondly what is the exact form of the issue which a Court has to determine when considering the question of its jurisdiction in the light of Section 99, Act 3 of 1926. In reference to the first question, whether Act 3 of 1926, Section 99 is applicable at all to an ejectment or obstruction to possession occurring before 7th'Soptember 1926 it has been held by two Judges of this Court in Abdul Halkim v. Mukarram Ali AIR1930All158 : that Section 99 can apply only to a disposseion which took place after 7th September 1926. 12. It is true that the learned Judges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction must literally determine the truth or otherwise of such allegations. The issue that it has to frame in order to determine questions of jurisdiction is not whether the defendant is a landholder, tenant etc., but whether the defendant is claiming as a landholder, tenant etc. in the words of Section 99. But we have it on the authority of the same Full Bench decision that the word claiming cannot be held to mean merely pleading a claim. The issue therefore which the Court has to determine is in effect whether the defendant is claiming as a landholder, tenant etc., and whether there is a reasonable substance in that claim. We think corroboration of our view that this was what was intended by the learned Judges is to be found in the passage at the bottom of p. 512 where they say: It has been said that the object of the legislature was to attract to the revenue Courts all suits in which any question of tenancy rights is involved. We may accept this, but we may also insist that the question must be a real one and not merely a litigious allegation. If there is a real question the plaintiff will be aware of it, and he will either set it out in his plaint and have it tried by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of their holding, and they have also possibly been ejected. The Act does not say that the ejectment should have been before the Act came into force. It of course implies that they should have been ejected or prevented from obtaining possession,, before the suit is filed. The expression. ' otherwise than in accordance with the provisions of this Act, to my mind does not mean that even if they had been ejected in accordance with the provisions of the previous Tenancy Act, they have been conferred a right under Section 99. A statutory right conferred by a new Act may even be made a foundation of defence to the plea of res judicata. If the plaintiffs were ejected unlawfully before the new Act, they are persons who have been ejected otherwise than in accordance with the provisions of this Act. Surely it cannot be said that in such a case they have been ejected in accordance with the provisions of this-Act. If the plaintiffs fulfil the requirements of the section and bring themselves within its scope, there appears to be no reason why they cannot avail themselves of a new enabling section which has come into force before the-suit is actually filed. 20. No doubt a substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been that even a rival tenant could obtain adequate relief from the revenue Court by impleading the landholder also, and therefore the old Section 167 applied to his case. There was certainly no bar to his impleading the rival tenant in a suit under the old Section 95. He might also have impleaded the landholder in a suit under Section 79 by treating the possession of a person claiming through the landholder as the constructive possession of the landholder. Similarly, it was held in a number of rulings that if a tenant was prevented from obtaining possession, he was not dispossessed. Here again a different view was possible. Might it not be that the legislature has merely disapproved of these rulings? On this view the new Act in no way curtails the period of limitation or alters the forum. 26. Again, the only question before a civil Court is one of jurisdiction. The further question, what period of limitation would apply if the suit were filed in a revenue Court is not at all before us. Whatever we may say would be a mere obiter dictum and would not be binding on the revenue Courts. Revisions and appeals arising out of suits under Section 99 would lie exclusively to reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cosharers are landholders. For a person to be a landholder it was not necessary under Section 3 (5) of the old Tenancy Act that the whole rent should be payable to him. But the majority of my learned brethren think that the question does not arise because it is now found that the defendants are cotenants, and they therefore must have ejected the plaintiffs in the capacity of co-tenants and not zamindars. As it is not disputed that Section 99 of the new Act would now cover the case of dispossession by some of the landholders only, the question has lost its importance. I need not therefore consider the position under the old Section 79 at any length. 30. The fear of a curtailment of the period of limitation or of the taking away of any vested right does not apply to a declaratory suit under Section 121, as no period of limitation is fixed for such a suit. Such a suit is clearly cognizable by the revenue Court only, even though the denial of title took place before the Act came into force. 31. It follows that if the plaintiff alleges that he is in possession and claiming the declaration against the landholder or persons claiming through him, but, in the alternative, asks fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t fixed rate of a holding comprising six bighas odd of land. The tenancy at fixed rate being transferable under the law, Badal Lonia made a simple mortgage of about 3/4ths of this holding in favour of Bishunath on 28th October 1903. Several years later, on 20th July 1911, he sold the remaining area of his holding to Sumran Singh, the father of defendants 1 and 2, who are the appellants before us. Bishunath Singh brought a suit on his mortgage, and made Sumran a party to the suit, along with the mortgagor, Badal. Bishunath obtained an ex parte decree for sale on 9th May 1912. In due course the decree was executed, the property mortgaged was sold and was purchased by Bishunath Singh himself, who got delivery of possession on 14th October 1915. In the meanwhile, Samran, who was a co-sharer in the village, took steps to have Badal ejected, and took delivery of possession as against Badal on 25th June 1912. To these ejectment proceedings Bishunath was no party, and the lower appellate Court has found that the ejectment proceedings were fraudulent and held behind the back of Bishunath Singh in order to injure him. Bishunath Singh's name was recorded in the revenue papers by an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the suit was cognizable by the civil Court. 38. In appeal the question is whether the suit was cognizable by the civil Court, The argument of the appellants is that the suit is between co-tenants, and therefore falls within the purview of Section 99, Tenancy Act of 1926, and that being the-case, Section 230, Tenancy Act of 1926, barred the jurisdiction of the civil Court. 39. There can be no doubt that a suit between rival tenants falls within the purview of Section 99, inasmuch as it is a suit by a tenant against a person claiming through the landholder. It was held by a Rull Bench of throe Judges in the case of Sahdeo v. Btuihai AIR1929All571 that a suit between co-tenants falls within the purview of Section 99, Tenancy Act of 1926 The words claiming through in Clause (b), Section 99, mean, holding a derivative title from the landholder. The idea is that where a suit is against a landholder or a person who pretends to be a land-holder, having a right to eject the plaintiff, or where the] suit is against a person holding a derivative title from such landholder or person claiming as above, the suit should be governed by Section 99, Tenancy Act of 1926. Claiming throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances rendering it inevitable that we should take the other view, we are to presume that an Act is prospective and not retrospective. 45. At p. 330 appear the following observations: It is a well recognized rule that statutes should be interpreted, if possible, so as to respect vested rights. 46. Again: In the absence of anything in an Act to show that it is to have a retrospective effect, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time that Act is passed. 47. I may lay emphasis on the last quotation. Again at p. 331 we have the following It seems a strong thing to hold that the legislature could have meant that a party who under a contract made prior to the Act, had as perfect a title to recover a sum of money as he had to any of his personal property, should be totally deprived of it without compensation. 48. I have quoted enough from the book to show that where an existing right is likely to be taken away by the operation of an Act, unless there is something which compels a Court to give the Act a retrospective effect, it will not give the Act that effect. 49. In the light thus thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s suit, in case of ejectment by a landholder, was therefore, before the passing of the Act of 1926, cognizable by the civil Court, and the rule of limitation applicable to such a suit was12 years, and not 6 months. Supposing that a rent-free grantee was ejected a year before the Act of 1926 came into force. When he brings his suit for recovery of his land against the landholder, he finds, if Section 99 applies, that he has to go to the revenue Court. So far there is no harm. But he finds also that his suit, by the application of Article 12, Schedule 4, Act of 1926, was already barred by time, six months prior to the promulgation of the Act of 1926. Is it a position desirable? Are we bound to hold that Section 99 has a retrospective effect, although the result of such retrospective effect would be so disastrous? 53. Again, let us take the case of a suit by a tenant against a person who claims to be a landholder, although he may not be one. Such a suit, before Section 99 came into force, was undoubtedly a suit cognizable by the civil Court, and governed by 12 years' rule of limitation. If the tenant was dispossessed by a person claiming to hold the position of a landholder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom obtaining possession took place, before the Act came into force. Supposing the plaintiff described above wants to bring his suit at once and there is no Act of 1926 in force, how will he know that he has been ejected from, or prevented from obtaining possession of his holding otherwise than in accordance with the provisions of the Act of 1926? It has been argued that the words otherwise than in accordance with the provisions of this Act mean nothing but this: otherwise than in accordance with law. If that was so, it would have been much easier and more expressive to use the latter expression than the former. By using the words this Act, I should think the legislature intended that this Section 99 should apply only where the cause of action arises after the Act has come into force. 58. Now I take up the three arguments which I have noticed above. 59. First I take up the question whether the hardship alluded to above is caused by Section 99, or by the application of the law of limitation, and whether therefore we should apply Section 99, irrespective of the consequences due to the application of the law of limitation. In my opinion, this argument is only partial, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants to show that they (the defendants) had dispossessed the plaintiffs, not in their capacity of tenants, but in their capacity of zamindars. In other words, if the defendants succeeded in showing that they were the zamindars of the fields in question, and that they had dispossessed the plaintiffs in their (defendants') capacity as zamindars, the Court would be bound to find that it was a case to which Section 79 of the Act of 1901 applied, and the suit would be thrown out on the ground that the plaintiffs came to Court on a false cause of action, which did not give the civil Court jurisdiction to try the suit. But such is not the case here. It has been found that the plaintiffs' allegation is true, namely, that they were dispossessed by their co-tenants. 64. The rule of limitation for a suit like this, in which the cause of action arose in 1923, was 12 years, and the present suit is within that time. The result is that the suit was rightly decreed by the lower appellate Court. 65. I would, for the foregoing reasons, dismiss the appeal with costs, including counsel's fees in this Court on the higher scale. Boys, J. 66. This case was referred to a Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that Sections 99 and 121 both deal with substantive rights and are not matters of adjective law. They both declare the right of the plaintiff an certain circumstances to sue. They have nothing to do with the question of venue, or any other matter of procedure; these matters are provided for by Section 230 read with Schedule 4. Nor have they even anything to do with the question of limitation. 73. To consider Section 99 first: I am of opinion that it is not applicable to any ejectment or resistance to possession, which ejectment occurred or resistance commenced before the passing of Act 3 of 1926. 74. In the first place it does not apply to any ejectment, etc., which has been effected otherwise than in accordance with the provisions of this Act.'' These words are ambiguous. Literally read, they clearly suggest that the Act is only intended to be applicable to circumstances occurring after the commencement of the Act, for a person could not be ejected or prevented from obtaining possession in accordance with the provisions of this Act before the Act came into force. On the other hand, to read the Act thus literally would mean to hold, in the first place, that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration immediately after the time of its being passed, the hardship would have been so great that we might have inferred an intention on the part of the legislature not to give it a retrospective operation, but when we see that it contains a provision suspending its operation for six weeks, that must be taken as an intimation that the legislature has provided that as the period of time within which proceedings respecting antecedent damages or injuries might be taken before the proper tribunal....'A certain time was allowed before the Act was to come into operation, and that removes all difficulty. 79. Now in the present case the hardship caused by holding the Act to be in the sense we are now considering retroactive is manifest, and in the Act itself there is no period of grace allowed to suggest that it was intended to be so retroactive. The Act came into force within seven days (i.e. the necessary period for printing and notifying in the Gazette) from the date of the Governor-General's assent. 80. As to Section 121 it has been established before us that on the pleadings as eventually settled this must be regarded as not merely a suit for a declaration but a suit als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly applied to a suit by a tenant against his landholder. The plaintiff's case was that the defendants ejected him as co-tenants and not as landholders, and the Court below has found this to be correct. The period of limitation was 12 years. We may take the cause of action to have accrued on 4th April 1923 when the plaintiff's rent suit was dismissed by the appellate Court. It is clear therefore that the plaintiff had a vested right of suit on 6th September 1926. Did he lose that right on 7th September 1926 when the new Act came into force? 88. Now it is a well recognized rule that statutes should be interpreted, if possible, so as to respect vested rights : Craies on Statute Law, Edn. 3, p. 330. Many cases might be cited to show that Courts have refused to allow statutes to have retrospective effect, although their language seemed to imply that such was the intention of the legislature, because, if the statutes had been so construed, vested rights would have been defeated. 89. The Gaming Act, 1922 repealed Section 2, Gaming Act, 1835 (which made money paid to the holder of securities given for consideration arising out of certain gaming transactions recoverable from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ink it may be fairly held to indicate that it is not intended to apply to cases where the cause of action arose before 7th September 1926. 97. Section 99 provides for a suit by a tenant. . . . ejected from or prevented from obtaining possession of his holding.... otherwise than in accordance with the provisions of this Act. I lay stress on the last words. This Act means of course the Act of 1926. Now take the case of a tenant ejected in 1923. It was obviously impossible at the time of the ejectment to determine whether he was, or not, ejected in accordance with the Act of 1926. Section 99 clearly could not apply to such a case unless we amplify the phrase so as to mean otherwise than in accordance with the provisions of this Act, if this Act had been in force at the time of the ejectment. 98. But this is very far fetched. I think the language of the section shows that it was only intended to apply to cases where the cause of action arose after the Act of 1926 came into force. It is only in such cases that it is possible to decide whether the dispossession was, or was not, in accordance with the provisions of the Act of 1926. 99. I hold therefore both upon the general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right in favour of anybody; but simply prescribes that a suit of that nature has to be filed within that particular period and, if it is not so filed, the remedy is lost, although the right remains. That the right remains and is not extinguished is clear by the fact that, if a new enactment is passed and prescribes a longer period of limitation, the suer would be entitled to avail himself of that extended period of limitation and obtain redress. I wish, however to make it clear that the law of limitation is not always a purely adjective law, inasmuch as in certain cases it provides for the creation of rights by prescription, and the corresponding extinction of rights (Section 28, Lim. Act of] 1908), and if those rights have vested in individuals under one law of limitation, they cannot be divested by the introduction of a new law of limitation or by an amendment in the law. It is only when the retrospective application of a statute of limitation would destroy vested rights that it is not to be 'construed retrospectively; otherwise the ordinary rule is that rules of limitation are rules of procedure and no one has a vested right in any period of limitation. 104. The suit, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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