Supreme Court: Respondents did not hand over the possession of lands to appellants despite the Civil Court’s decree and thus, appellant filed a suit for mesne profits before the Revenue Court claiming Rs. 5249 whereas, the Revenue Court granted only Rs. 435-15-0 in view of the limitation imposed under Section 233(2) of the U.P. Tenancy Act, 1939 (‘the Act’). The 4-Judges Bench of Mehr Chand Mahajan, S.R. Das, Vivian Bose* and Ghulam Hasan, JJ., held that Sections 290 and 291 of the Act had no application to cases which were only cognizable by the Civil Courts but were wrongly instituted in a Revenue Court. The Supreme Court opined that if applicability of Section 290 of the Act was sought then it must be conceded that suit was cognizable by the Revenue Court.
Background
Appellant filed an appeal in a suit for a co-sharer’s profits in 78.7 acres of land, situated in Village Pohriya in Gorakhpur District. In 1913, the Thakurs, Respondents 6 to 9, sold 2 acres share to the Tewaris, Respondents 1 to 5. In 1914, the Thakurs mortgaged their 14 acres to the Tewaris by way of usufructuary mortgage and during the time the Tewaris were in possession, they ejected tenants from time to time and obtained 78.7 acres from them. On 14-06-1932, the Thakurs executed a second mortgage in favour of Appellant 1, a Sugar Mill Company. Appellant 1 redeemed the first mortgage, as it was entitled to do, and thus stepped into the shoes of the first mortgagee. In this capacity, Appellant 1 claimed 14 acres interest in the 78.7 acres which the Tewaris had obtained, and as the Tewaris did not acknowledge Appellant 1’s right, Appellant 1 was obliged to sue for joint possession and mesne profits. The suit was filed in 1933 and the claim was decreed in 1936. Appellant was then given formal possession under Order 21 Rule 35 of the Civil Procedure Code, 1908. The mesne profits were ascertained in due course and a decree followed on 19-08-1938 for the profits of the Fasli years 1341 to 1344.
Despite the Civil Court’s decree, respondents refused to hand over any mesne profits in the succeeding years. Thus, appellant brought the present suit for profits for the Fasli years 1345 to 1347. The suit purported to be under Section 231 of the Act and so was filed in the Revenue Court. Appellant claimed Rs. 5249, but the court decreed only Rs. 435-15.0 with Rs 49-0-3 for interest and dismissed the rest of the claim because of the limitations imposed by Section 233(2) of the Act. Appellant thereafter appealed to the Allahabad High Court (‘High Court’) but failed.
Analysis, Law, and Decision
The Supreme Court noted appellant’s submission that if this was a suit under Section 231 of the Act, then the decisions of the Courts below were right, as Section 233(2) of the Act was called into operation and the computation made by the Trial Court on that basis was unassailable, but appellant contended that this was not a suit under Section 231 of the Act at all and that it was wrong to call it so. The Supreme Court further noted appellant’s submission that the present case was for mesne profits, and it should have been instituted in and tried by a Civil Court and not a Revenue Court and that the High Court should have exercised the powers conferred on it by Section 290 of the Act and treated the suit as if it had been instituted in the right court, namely, Civil Court, and on that basis should have decreed the whole claim free from the limitations imposed by Section 233(2) of the Act.
The Supreme Court opined that Section 290 of the Act did not help appellant on the issue of jurisdiction. The Supreme Court relied on Section 290 of the Act and held that Sections 290 and 291 of the Act had no application to cases which were only cognizable by the Civil Courts but were wrongly instituted in a Revenue Court.
The Supreme Court further opined that if appellant sought the application of Section 290 of the Act, then he was bound to concede that the suit was of a nature cognizable by a Revenue Court, and that in this case meant that the suit was one under Section 231 of the Act. If the suit was under Section 231 of the Act, then Section 233(2) of the Act was at once attracted and the decision of the Courts below was right. On the other hand, if appellant’s case was, that this was a suit of a civil nature with which the Revenue Courts were not concerned, his proper course was to seek the return of the plaint for presentation to the proper court and as he did not do that in the Courts below and even in the Supreme Court insisted on the application of Section 290 of the Act, thus this Court could not in the particular circumstances of this case permit him to adopt that course at this late stage. The Supreme Court thus dismissed the appeal with costs.
[Punjab Sugar Mill Company Ltd. v. Lachman Prasad Tewari, (1952) 2 SCC 443, decided on 12-11-1952]
*Judgment authored by: Justice Vivian Bose
Ed. Note: U.P. Tenancy Act, 1939
Section 290 of the U.P. Tenancy Act, 1939 (‘the Act’) states that when in a suit instituted in a Civil or Revenue Court, an appeal lies to the District Judge or to the High Court, an objection that the suit was instituted in the wrong court shall not be entertained by the Appellate Court unless such objection was taken in the court of first instance; and the Appellate Court shall dispose of the appeal as if the suit had been instituted in the right court. Section 291 of the Act states the procedure that needs to be followed if an objection was raised under Section 290 of the Act.
Advocates who appeared in this case :
For the Appellants: Gopinath Kunzru, Senior Advocate (Jindra Lal, Advocate, with him)
For the Respondents: M.C. Setalvad, Attorney General for India (G.C. Mathur, Advocate, with him)
