Civil Appeal No 145 of 1965
Appeal by special leave from 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
NS Bindra PW Sahasrabudde and AG Ratnaparkhi for the appellant
Rameshwar Nath and Mahinder Narain for respondents 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 article 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 SY in the Court of Tehsildar Pargana Pichhore District Gwalior for the possession of some agricultural land under section 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 section 326
The defendants further alleged that the plaintiffs had failed to pay revenue and their rights had been extinguished under section 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 revision
On behalf of the appellant it is contended 1  that in a suit under section 326 Qanoon Mal read with section 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 follows Qanoon Ryotwari section 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 section 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 property 4
By attachment and sale of immovable property 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
S163
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 section 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
section 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 section 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 section 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 section 137 of Qanoon Ryotwari
The High Court felt that the proviso to section 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 eject the lessee
The High Court interpreted section 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 section 823 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 section 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 section 137
Further section 163 of Qanoon Ryotwari clearly provides for suits of the nature described in section 326 of Qanoon Mal
When we turn to section 326 it is very similar to section 9 of the and it seems to uS that the words disturbed unlawfully in section 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 section 326 while section 325 provides a longer period of three years for a suit for possession
Some stress was laid on the words in case of proof of trespass in section 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 section 9 of the it is well settled that question of title is irrelevant in a suit under that section
As the structure of section 326 of Qanoon Mal read with section 163 of Qanoon Ryotwari is similar to section 9 of the  there is No reason why section 326 should be interpreted differently
In Midnapur Zamindary Company Limited vs Naresh Narayan Roy1 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 KK Verma vs Naraindas C Malkani2 Chagla CJ 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 section 9 of the 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 section 9 and claim possession against the true Owner
 In Yar Mohammad vs Lakshmi Das3 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
section 9 of the 
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 A293 at 299
2 ILR 1954 Born
950 at 957
3 ILR 1958 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 further observed 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 CJ in Wali Ahmed Khan vs Ayodhya Kundu1 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 vs Birendra Nath Basunia2 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 vs Narayanappa Timmaya3 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 vs Annaji Parashram4 and Bandu vs Naba5
 We are unable to appreciate how this decision assists the respondent It was not a suit under section 9 of the 
1n Lillu bin  Raghushet vs Annaji Parashram4 it was recognised that if there is a breach of the peace in attempting 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 1 of 1877 Dadabhai Narsidas vs The Sub Collector of Broach 6 In Bandu vs Naba5 it was observed by Sargent CJ as follows 1 All
537 556
2 AIR 1955 Cal
3 4 387 391 5 Bom
6 7 Bom
HC Rep 82 ACJ 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 vs Annaji1
 In our opinion the law on this point has been correctly stated by the Privy Council by Chagla CJ 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
GC Appeal allowed 1 Bom
387 391


Summary:
Certain tenants of ryotwari land in Gwalior district filed a suit under section 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 section  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 section 137 Qanoon
Ryotwari
The High Court however allowed landlords  petition under article 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 section 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 section 823 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 section 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 section 137
207 E G Further section 163 of Qanoon Ryotiwari clearly provides for suits of the nature described in section 326 of Qanoon Mat
Section 326 is very similar 10 section 9 of the  and the words disturbed unlawfully 
in section 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 section 326 while section 325 provides a longer period of three years for a suit for possession
The word trespass  in section 326 would include forcible entry and dispoSsession by the landlord
207 G 208A ii Under section 9 of the 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 vs Naresh Narayan Roy 5t IA 293 KK Verma vs Naraindas C Malkani
ILR 1954 Born
950 Yar Mohammad vs Lakshmi Das
ILR 1958 2 All 394
Wali 204 Ahmad Khan vs Ayodhya Kundu All 537 State of West Bengal vs Birendra Nath Basunia AIR  Hillaya Subbaya Hegde vs Narayanappa Timmaya  Lillu bin Raghushet vs Annaji Parashram
387 Bandu vs Naba Bom 238 and Dadabhai Narsidas vs The Sub Collector of Broach
7 Bom
HC Rep 82 ACJ referred to