Lallu Yeshwant Singh Vs. Rao Jagdish
Singh & Ors  INSC 283 (29 November 1967)
29/11/1967 SIKRI, S.M.
CITATION: 1968 AIR 620 1968 SCR (2) 203
CITATOR INFO :
E&D 1974 SC 104 (5,13,25) E 1975 SC 280
(5,7) R 1989 SC2097 (9) RF 1991 SC 885 (29)
Gwalior Revenue Laws--Ryotwari
Land--Gairdakhilkar tenants defaulting in payment of rent--Landlord whether can
eject them forcibly without process of law--Qanoon Mal s.
326 and Qanoon Ryotwari ss. 82. 137.
Certain tenants of ryotwari land in Gwalior
district filed a suit under 's. 326 of the Qanoon Mal alleging dispossession by
the landlords and praying for restoration of possession. On behalf of the
defendants it was urged that by not paying land revenue the plaintiffs' rights
had been ,extinguished under s.' 82 of the Qanoon Ryotwari. The Revenue
authorities decreed the suit on the view that even when land revenue was not
paid the landlord could not take possession without recourse to a suit under s.
Ryotwari. The High Court however allowed
landlords' petition under Art. 227 of the Constitution holding that it was not
obligatory on the landlord to resort to Court in order to eject a defaulting
lessee, and that in a proceeding under s. 163 of Qanoon Ryotwari it was not
sufficient to determine the question of de facto possession alone but it was
also necessary to enquire as to whether' this possession was or was not wrong.
The appellant, who was one of the tenants came to this Court.
Held: (i) Under s. 82(3) Qanoon Ryotwari, the
right of a Khatedar extinguished if the khatedar keeps in arrears the land
revenue of his khata but there is no automatic extinguishment of his right
because the proviso to s. 137 of the Qanoon Ryotwari enables the Collector to
accept arrears if the khatedar is a good payer (khush-dehanda) and there are
special reasons beyond his control for not paying land revenue. The proviso
would become a dead letter if in every case when there are arrears of land
revenue the landlord could take possession forcibly without trying to recover
the land revenue under s. 137. [207 E-G] Further s. 163 of Qanoon Ryotiwari
clearly provides for suits of the nature described in s. 326 of Qanoon Mat.
Section 326 is very similar 10 s. 9 of the Specific
Relief Act 1877, and the words 'disturbed unlawfully'. in s. 326 mean
"disturbed not in due course of law". Otherwise. there is no reason
why a shorter period of limitation and summary procedure is provided in s. 326
while s. 325 provides a longer period of three years for a suit for possession.
The word 'trespass' in s. 326 would include forcible entry and dispoSsession by
the landlord. [207 G-208A] (ii) Under s. 9 of the Specific Relief Act the
question of title is irrelevant under that section. Section 326 of Qanoon Mal
read with Qanoon Ryotwari being similar to that section must be similarly
interpreted. [208B] Midnapur Zamindary Company Limited v. Naresh Narayan Roy,
5t I.A. 293, K.K. Verma v. Naraindas C. Malkani. I.L.R.
 Born. 950, Yar Mohammad v. Lakshmi
 2 All. 394. Wali 204 Ahmad Khan v.
Ayodhya Kundu,  I.L.R. 13 All. 537, State of West Bengal v. Birendra Nath
 Cal. 601, Hillaya Subbaya Hegde v.
Narayanappa Timmaya, (1911) 13 B.L.R. 1200, Lillu bin Raghushet v. Annaji
Parashram,.  I.L.R. 5 Bom. 387, Bandu v. Naba,  I.L.R. 15 Bom. 238
and Dadabhai Narsidas v. The Sub-Collector of Broach. 7 Bom. H.C. Rep. 82 ACJ,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 145 of 1965.
Appeal by special leave fro.m the judgment
and order dated September 24, 1956 of Madhya Pradesh (Now Madhya Pradesh) High
Court at Gwalior in Civil Misc. Application No. 91 of 1955.
N.S. Bindra, P.W. Sahasrabudde and A.G.
Ratnaparkhi, for the appellant.
Rameshwar Nath and Mahinder Narain, for
respondents Nos. Nos. 1 to 3.
The Judgment of the Court was 'delivered by
Sikri, J. This appeal by special leave is directed against the judgment of the
High Court of Madhya Bharat in Civil Miscellaneous Application No,. 91 of 1955,
read with Civil Miscellaneous Application No. 92 of 1955, filed under Art. 227
of the Constitution by Rao Jagdish Singh and others. By this judgment the High
Court accepted the applications and quashed the decision of the Board of
Revenue and dismissed the claim of Lallu Yeshwant Singh, son of Nahar Singh,
now deceased, represented by Babu Singh, appellant before us. The relevant
facts for appreciating the points arising in the appeal are as follows.
Yeshwant Singh and other sons of Lallu Nahar
Singh, hereinafter referred to as the plaintiffs, filed a suit against Rao
Jagdish Singh and 4 others (Revenue Case No. 24 of 2000 S.Y.) in the Court of
Tehsildar, Pargana Pichhore, District Gwalior, for the possession of some
agricultural land under s. 326 of Qanoon Mal. The plaintiffs' case, in brief,
was that they were gairdakhilkar cultivators and that Rao Jagdish Singh,
defendant No. 1, had forcibly prevented the plaintiffs from doing cultivation
and got the disputed land cultivated by defendants Nos. 2 and 3, by interfering
with the possession of the plaintiffs. The plaintiffs prayed that a decree for
possession may be passed in their favour against all the defendants. The
defendants' case, in brief, was that the village in which the land in dispute is
situated is Ryotwari village and no suit could be instituted against Jagirdars
under s. 326. The defendants further alleged that the plaintiffs had failed to
pay revenue and their rights had been extinguished under s. 82 of Qanoon
Ryotwari. The Tehsildar decreed the suit. The Collector on appeal upheld the
order. The Commissioner on 205 further appeal also upheld the order. On
revision, the Board of Revenue agreed with the Commissioner and dismissed' the
On behalf of the appellant it is contended (1
) that in a suit under s. 326 Qanoon Mal, read with s. 163, Qanoon Ryotwari, a
plaintiff is entitled to recover _possession if he is dispossessed from prior
juridical possession, within six months of the suit, and the question of title
is irrelevant in such a suit; and (2) that a landlord cannot forcibly enter and
drive out the tenant whose tenancy is alleged to have been extinguished.
The relevant statutory provisions are as
"Qanoon Ryotwari S. 82. The right of the
pukhta Maurusi, Sakitul Milkiyat and Mamuli Maurusi will be extinguished under
the following circumstances;
(3) When the Khatedar keeps in arrears the
]and revenue of his khata excepting the case where the collection of land
revenue is ordered to be postponed;...
S. 137. In case the land revenue for the whole
year is not paid before one week of the date fixed for the last instalment the
khatedar will be dealt with as follows :-- 1. By issue of process;
2. By arrest of the defaulter;
3. By attachment and sale of movable
4. By attachment and sale of immovable
5. By confiscation (Jupti) of the khata and
ejectment of the defaulter;
6. By auctioning the khata;
Provided if the arrears are due against such
khatedar who has been a good payer (khush-dehanda) and for some special reason
for some years not by his own mischief but for reason beyond his control, the
Suba (Collector) will be entitled to accept his instalments upto three years.
S.163. Suits of trespass and obstruction
'between khatedars and between khatedars and other persons will be entertained
in that Sega (Dept.) court and limitation which is described in Section 326 of
Qanoon Mal Riyasat Gwalior Samvat 1983 and Sections 326, 206 327, 328, 330,
331, 332, 333, 334 and 335 so far as they are applicable or appendices of the.
Qanoon Mal shall apply as may be applicable to the suits under section 326 of
the said Act.
Qanoon Mal S. 325. If any person claiming to
be in possession of any agricultural land desires his name to be entered in
Revenue papers and papers of Patwari, then the Patwari, if in case of actual
physical possession enter his name in accordance with procedure in Khasra and
other papers and inform the Malguzar; in case of not being in possession, the
cultivator not in possession shall have the right to file within three years of
the date of dispossession a suit regular in Court of Tehsil on stamp paper,
which may become payable on annual income of "Lagan" according to
Scale in Schedule No. 4 prescribed.
S. 326. (1) Cases in respect of the return of
possession which has been disturbed unlawfully (Beja Tot Par) or for prevention
of obstruction about agricultural lands, thrashing grounds, (Khaliyan) road,
forest, grass-pastures, gardens, trees, wells, irrigation and tanks between
Malguzars and cultivators or between cultivators will be entertained in the
summary jurisdiction of the Pargana revenue Court or in the Tappa courts within
six (6 ) months and in case of proof of trespass or obstruction, possession and
damages will be awarded against the defendant and if the court thinks fit it
may also take bonds, quantum whereof will be decided in view of the nature of
the trespass or obstruction.
(3) Suits beyond this duration will be
entertained as per section 325 of the Qanoon Mal in the regular
jurisdiction." The Board of Revenue was of the view that in case land
revenue remains in arrears, the fight of a tenant gets extinguished under s. 82
of the Qanoon Ryotwari, but nevertheless the possession of the tenant whose
right has been so extinguished is not put to an end automatically, and the
tenant must be legally dispossessed, The Board observed:
"This is a general principle of law that
no act can be done by the strength of one's own hands but help of the law
should be taken and the procedure which is 207 prescribed for that act must be
acted upon. In this case the petitioner has not obeyed any law regarding the
dispossession of the opponent after the plaintiff lost his right and he himself
went there and took possession." The Board was further of the view that
action for dispossession should have been taken according to s. 137 of Qanoon
Ryotwari, extracted above.
The High Court, however, came to the
conclusion that it was not obligatory on the defendant to have filed a suit
under s. 137 of Qanoon Ryotwari. The High Court felt that the proviso to s.
137; which enabled the Collector to accept arrears for three years, did not
militate against such a construction. The High Court was also of the view that
under the general law applicable to a lessor and a lessee there was no rule or
principle which made it obligatory for the lessor to resort to Court and obtain
an order for possession before he could reject the lessee. The High Court
interpreted s. 163 of Qanoon Ryotwari to mean that in a proceeding under that
section it is not sufficient to determine the question of de-facto possession
alone but it is also necessary to. enquire as to whether this possession is or
is not wrongful.
It seems to us that on a, true interpretation
of the statutory provisions, extracted above, the Board of Revenue came to the.
correct conclusion. Under s. 82(3) Qanoon Ryotwari, the fight of a Khatedar is
extinguished if the khatedar keeps in arrears the land revenue of his khata but
there is no automatic extinguishment of his right because s.
137 of Qanoon Ryotwari enables the Collector
to accept arrears if the khatedar is a good payer (khush-dehanda) and there are
special reasons beyond his control for not paying the land revenue. The
existence of the proviso instead of assisting the landlord's contentions assists
the tenant's case because if the reasoning of the High Court is accepted to be
correct, the proviso would become a dead-letter for in every case where there
are arrears of land revenue, the landlord would take. possession forcibly
without trying to recover land revenue under s. 137. Further, s. 163 of Qanoon
Ryotwari clearly provides for suits of the nature described in s. 326 of Qanoon
Mal. When we turn to s. 326, it is very similar to s. 9 of the Specific Relief
Act, 1877 and it seems to uS that the words "disturbed unlawfully" in
s. 326 mean "disturbed not in due course of law." Otherwise, there is
no reason why a shorter period of limitation and summary procedure is provided
in s. 326 while s. 325 provides a longer period of three years for a suit for
Some stress was laid on the words "in
case of proof of trespass" in s. 326 by the learned counsel for the
respondent. According to him, a landlord does not commit trespass when he
forcibly enters on land in the possession of a tenant whose tenancy 208 has
expired. In our view, in the context, the word "trespass" here would
include forcible entry and dispossession by the landlord.
Reference was made to a number of English
authorities in this behalf but it is not necessary to deal with them because
the law in India on this subject is different.
Under s. 9 of the Specific Relief Act it is
well-settled that question of title is irrelevant in a suit under that section.
As the structure of s. 326 of Qanoon Mal, read with s. 163 of Qanoon Ryotwari,
is similar to s. 9 of the Specific Relief Act, there is no. reason why s. 326
should be interpreted differently.
In Midnapur Zamindary Company Limited v.
Naresh Narayan Roy(1), the Privy Council observed:
"In India persons are not permitted to
take forcible possession; they must obtain such possession as they are entitled
to through a Court." In K.K. Verma v. Naraindas C. Malkani(2), Chagla,
C.J., stated that the law in India was essentially different from the law in
England. He observed:
"Under the Indian law the possession of
a tenant who has ceased to be a tenant is protected by law. Although he may not
have a right to continue in possession after the termination of the tenancy his
possession is juridical and that possession is protected by statute. Under s. 9
of the Specific Relief Act a tenant who has ceased to be a tenant may sue for
possession against his landlord if the landlord deprives him of possession
otherwise than in due course of law, but a trespasser who has 'been thrown out
of possession cannot go to Court under s. 9 and claim possession against the
true Owner." In Yar Mohammad v. Lakshmi Das(3), the Full Bench of the
Allahabad High Court observed:
"No question of title either of the
plaintiff or of the defendant can be raised or gone into in that case (under.
s. 9 of the Specific Relief Act). The plaintiff will be entitled to succeed
without proving any title on which he can fall back upon and the defendant
cannot succeed even though he may be in a position to establish the: best of
all titles. The restoration of possession in such a suit is, however, always
subject to a regular (1) 51 I A.293 at 299. (2) I.L.R.  Born. 950 at 957.
(3) I.L.R.  2 All. 394 at 4e4.
209 title suit and the person who has the
real title or even the better title cannot, therefore, be prejudiced in any way
by a decree in such a suit. It will always be open to him to establish his
title in a regular suit and to recover back possession." The High Court
"Law respects possession even if there
is no title to support it. It will not permit any person to take the law in his
own hands and to dispossess a person in actual' possession without having recourse
to a court. No person can be allowed to become a judge in his own cause. As
observed by Edge, C.J., in Wali Ahmed Khan v. Ayodhya Kundu(1):
"The object of 'the section was to drive
the person who wanted to eject a person into the proper court and to prevent
them from going with a high hand and ejecting such persons." Our attention
was invited to the decision of the Calcutta High Court in State of West Bengal
v. Birendra Nath Basunia(2)* In that case the High Court refused to issue an
order under Art 226 of the Constitution prohibiting the Government from
forcibly taking possession of lands which had been validly resumed by
Government. We are not concerned with that question here But we do not agree
with the conclusion of the High Court that a lessor is entitled in India to use
force to throw out his lessee.
In Hillaya Subbaya Hegde v. Narayanappa
Timmaya(3) in was observed:
"No doubt, the true owner of property is
entitled to retain possession, even though he has obtained it from a trespasser
by force or other unlawful means: Lillu bin Raghushet v. Annaji Parashram(4)
and Bandu v. Naba(5)." We are unable to appreciate how this decision
assists the respondent It was not a suit under s. 9 of the Specific Relief Act.
1n Lillu bin' Raghushet v. Annaji Parashram(4), it was recognised that "if
there is a breach of the peace in at:tempting to take possession, that affords
a ground for criminal prosecution, and the attempt is successful, for a summary
suit also for a restoration to possession under section 9 of the Specific
Relief Act 1 of 1877 -Dadabhai Narsidas v. The Sub-Collector of Broach"
(6) In Bandu v. Naba(5) it was observed by Sargent, C.J., as follows (1) 
I.L.R. 13 All. 537-556. (2) A.I.R. 1955 Cal. 601.
(3) (1911) 13 B.L.R. 1200. (4)  I.L.R.
5Bom. 387- 391 (5)  I.L.R. 15 Bom. 238. (6) 7 Bom.H.C. Rep. 82 A.C.J.
210 "The Indian Legislature has,
however, provided for the summary removal of any one who dispossesses another,
whether peaceably or otherwise than by due course of law; but subject to such
provision there is no reason for holding that the rightful owner so
dispossessing the other is a trespasser, and may not rely for the support of
his possession on the title vested in him, as he clearly may do by English law.
This would also appear to be the view taken by West, J., in Lillu v.
Annaji(1)." In our opinion, the law on
this point has been correctly stated by the Privy Council, by Chagla, C.J., and
by the Full Bench of the Allahabad High Court, in the cases cited above.
For the aforesaid reasons we hold that the
High Court erred in quashing the order of the Board of Revenue. The appeal is
accordingly allowed with costs, judgment of the High Court set aside and the
order of the Board of Revenue restored.
G.C. Appeal allowed (1)  I.L.R. 5 Bom.