Debi Singh vs Muhammad Ismail Khan

John Edge, C.J. and Burkitt, J.—This was a suit for compensation for the use and occupation of agricultural land. Judging from the record, the plaintiff had purchased the zamindari rights of the defendant''s father. Whether the land in respect of the occupation of which compensation is claimed was sir land of the ex-zamindar we do not know. One thing is clear. The plaintiff had, by proceeding u/s 36 of Act No. XII of 1881, obtained the ejectment of the defendant from the lands to which this claim relates. He could not have obtained ejectment under such a proceeding unless the defendant had been a tenant of this agricultural land. The plaintiff, if he wanted to get a decree for rent and did not agree with the defendant as to the rent to be paid whilst the defendant was his tenant, ought to have got the rent determined whilst the tenancy subsisted by an application under Act No. XII of 1881. Mr. Jivan Chandar argues that, the rent not having been determined during the tenancy and not having been agreed on, the Court of Revenue would not now determine it. The Court of Revenue would of course act wisely in not determining the rent of a tenancy which no longer subsisted; it has other work to do. Mr. Jivan Chandar also contended that, on the authority of the decisions of Mr. Justice Tyrrell in Brijbawan Singh v. Mehdi Ali Weekly Notes 1887 p. 140, and Ranjit Singh v. Diwan Singh Weekly Notes 1889 p. 175, it was competent to a Civil Court in such a ease, although it could not decree the claim sub nomine rent, to award to the plaintiff compensation for the use of his land by the defendant. Mr. Justice Tyrrell apparently had forgotten that he had delivered the judgment of a Bench of two Judges in 1882 which was directly in conflict with the view which he was expressing in 1887 and 1889. Sir Robert Stuart, C.J. and Mr. Justice Tyrrell in Ram Prasad v. Dina Kuar ILR Ali. 515, held, and we think rightly, that in such a case the zamindar cannot sue for use and occupation. If he wants to enforce payment of rent by his tenant he must agree on the rent with his tenant, if the case be one in which such an agreement would be lawful under, and not contrary to, the provisions of Act No. XII of 1881 and could be enforced under that Act, or he must have the rent determined under the Act, and then he could sue for the arrears of the rent so agreed on by the tenant or determined under the Act, and he could sue in the Court of Revenue, which is the only Court having jurisdiction. This view of the law is supported by the judgment of this Court in Radha Prasad Singh v. Jugal Das ILR All. 185. Some decisions bearing on this subject are referred to in Debi Singh v. Jhanno Kuar ILR All. 209. Zamindars must comply with the law of Act No. XII of 1881, or they will go without remedy, not only in the Court of Revenue, but also in the Civil Court, in respect of compensation for the occupation of their land. This case came before us as an application in revision from the judgment of a Civil Court dismissing the suit. We dismiss this application.