ORDER
1. The question for decision in this case is briefly this:
While an ejectment suit is pending in the revenue Court in which the main issue is whether the defendant is or is not a tenant of the plaintiff, will the civil Court entertain a suit the object of which is to compel the revenue Court to hold that the defendant is not a tenant?
2. The plaintiffs respondents Gopal Narain Singh and Sri Narain Singh are mortgagees from certain occupancy tenants under a mortgage executed in 1882.
3. The mortgage was a burdensome one as the interest exceeded the profits of the holding.
4. The tenants relinquished their holding in favour of the zamindars on the 23rd of March, 1923.
5. On the 1st October, 1923, the zamindars B. Fateh Singh and others, brought a suit in the revenue Court for the ejectment of the respondents Gopal Narain and Sri Narain as non-occupancy tenants. Their position was that as the occupancy tenants had relinquished the tenancy, the occupancy tenure had come to an end and the mortgagees were liable to ejectment either under Section 34 of the Tenancy Act or as tenants at will. The mortgagees contested the suit, and while it was pending they instituted on 17th December, 1923, the present suit in the civil Court against the zamindars for a declaration that the two deeds of relinquishment executed by the occupancy tenants are of no effect against them, and for as injunction restraining the zamindars from dispossessing them.
6. The Subordinate Judge in whose Court the suit was instituted issued an injunction to the revenue Courts to prevent their going on with the ejectment suit. It seems at least doubtful whether he was competent to do so, but this is a point we need not consider. On 16th April, 1924, he dismissed the present suit as barred by Section 167 of the Tenancy Act. On 30th June, 1924, the revenue Court decreed the ejectment of the present plaintiffs, and on the morning of 9th July, 1924, the zamindars, who are appellants before us, obtained actual possession. In the meantime the plaintiffs had appealed to the District Judge against the decision of the Subordinate Judge. On the very day on which the zamindars had got possession, viz., 9th July, 1924, the District Judge allowed the appeal, and remanded the suit for decision on the merits. Against that order the present appeal is preferred.
7. We are now informed by means of an affidavit that an appeal has been preferred to the Commissioner against the decision in the ejectment suit, and is still pending. Two principles are clearly established by the decisions of this Court. The first is that a suit by a mortgagee of an occupancy holding for a declaration of the invalidity against him of a relinquishment executed by the occupancy tenant is entertainable by a civil Court. This is settled by the Full Bench decision in Brij Kumar Lal v. Sheo Kumar Misra (1915) 37 All. 444.
8. The second is that the civil Court will not entertain a suit the object of which is to nullify a decree of the revenue Court in a matter within the revenue Court's exclusive jurisdiction. That is settled by the Full Bench decision in Mullo v. Ram Lal A.I.R. 1921 All. 348. The same principles have been followed in many subsequent cases of which Jagannath v. Balwant Singh A.I.R. 1922 All. 372 and Kundan Lal v. Parshadi A.I.R. 1924 All. 744 are instances.
9. The difficulty arises in the intermediate case in which the civil suit is instituted while the suit in the revenue Court is still pending. Here there is a real danger of a conflict of jurisdiction. Are both Courts to go on trying the same question independently, and is the result to depend on which Court comes to a decision first? Or is each Court to ignore the other altogether? Where the revenue Court is seized of a case which it has exclusive jurisdiction to try, it is, we think, beyond the power of the civil Court to issue an injunction prohibiting it from proceeding with the case. We suggest that the best way out of the difficulty would be to lay down a rule of practice, on the principle of Section 10 of the Civil Procedure Code, though that Section may not in terms apply, that the Court in which proceedings are last instituted should stay the suit before it until the decision of other Court. We think that in all probability if such a rule were laid down, the Board of Revenue would be prepared to concur in it. They equally desire to prevent any conflict of jurisdiction arising.
10. That the decisions are not uniform and that there is a need of a Full Bench decision to settle the question may easily be seen by reference to a few cases. Dr. Agarwala for the appellants has been able to show us two cases almost exactly parallel to the present case, in which the civil Court refused to entertain a suit of this nature on the ground that any decree the civil Court might pass would be wholly nugatory. They are (1915) 37 All. 444 Ram Devi Kuari v. Bindesri Upadhya (1911) 8 A.L.J. 940 and A.I.R. 1921 All. 348 Shiva Prakash v. Karna (1913) 35 All. 464.
11. In the first of these cases the civil suit was actually filed first though the suit in the revenue Court was first decided. On the other hand, in Jaigopal Narain Singh v. Uman Dat (1911)8 A.L.J. 695 another case, almost precisely parallel, the decision was the other way, as the matter was still held to be sub judice in the revenue Court because a revision was pending before the Board of Revenue. It has been argued that the question was settled by implication in the Full Bench case in 37 All. 444, because there also a revenue suit had been filed and was pending. The Full Bench, however, did not touch this question in their judgment. This therefore appears to be a case for the application of the principle that a case is only authority for what it decides and not for every thing that might appear to be implied in it. It would not be safe to extend the scope of the decision beyond the point actually decided. Similarly in the very recent case of Ammar v. Govind A.I.R. 1925 All. 465 the Letters Patent Bench avoided the question of the effect of an ejectment suit having been previously filed in the revenue Court by suggesting that the revenue Court's decision would not necessarily conclude the question raised in the civil Court, i.e., the revenue Court might hold that the defendant before it was not a subtenant, and still he might not be entitled to a declaration that he was a co-tenant. It was, however, quite certain that he could not be both, and a reference to the record would show that the actual dispute between the parties was as to which of the two characters he actually filled.
12. We direct the record to be laid before the Chief Justice with a view to reference to a Full Bench of the question:
What course is the civil Court to adopt when a suit is filed before it the object of which is to affect the decision of the revenue Court in a pending suit within the exclusive jurisdiction of that Court.
13. We put forward for the consideration of the Full Bench the suggestion that the most satisfactory course would be to apply the principle of Section 10 of the Code of Civil Procedure and direct the civil Court to stay proceedings till the ejectment or other suit in the revenue Court is decided. This is the only course which appears to us to prevent a conflict of jurisdiction arising. If once the revenue Court has finally ejected the defendant before it, it cannot be compelled to restore him because he has got a declaration of his right from the civil Court. Indeed in some of the cases in which the civil Courts have granted declarations the Judges who decided them have suggested that the declaration they were granting would be of no use to the party to whom they granted it. If the civil suit was first instituted, then, on this view, it would equally be the duty of the revenue Court to hold its hand till the civil suit was decided.
Lindsay, J.
14. This case has been referred to a Full Bench. There is no need to sot out the facts which are narrated in full in the referring order. The immediate matter for decision is set out at page 7 of The referring order as follows:
What course is the civil Court to adopt when a suit is filed before it the object of which is to affect the decision of the revenue Court in a pending suit within the exclusive jurisdiction of that Court?
15. Without going into any discussion of The numerous cases which have been cited before us it is perfectly plain that all the trouble which has arisen in matters of this kind is due to different interpretations of The act of surrender by an occupancy tenant who has made a mortgage of his occupancy holding.
16. Since the case reported as Khiali Ram v. Nathu Lal (1893) 15 All. 219 was decided it has been uniformly held in this Court that a mortgage of an occupancy holding made by an occupancy tenant prior to the enactment, of the present Agra Tenancy Act, cannot be avoided by the occupancy tenant making a surrender of his occupancy rights to The zamindar.
17. On the other hand, the Board of Revenue have taken a different view and have held that such a surrender operates to put an end to the relation of mortgagor and mortgagee. It is this conflict of decisions which results in the difficulties which are illustrated in the case which is now before us.
18. If the fact is that the Board of Revenue refuse to accept the view of the law which has been taken by this Court it seems useless to insist that a civil Court, which necessarily follows the law as laid down in this Court, must give a declaratory decree in favour of a mortgagee who comes to the civil Court in order to obtain a declaration that surrender made by his mortgagor is void and of no effect. When all is said and done, the granting of relief by way of declaration, is a matter within the discretion of the civil Court, and if it is made to appear that the declaration, when granted to the plaintiff, will be of no avail to him that seems to me to be a very good reason for holding that in such a case the Court should exercise its discretion against the plaintiff and decline to grant any relief. This is not to say that a suit for a declaration of the nature just mentioned is not entertainable by a civil Court. That I think would be going too far. But it is clear that any civil Court is entitled, in the exercise of its discretion, to refuse a declaration of this kind if it is to turn out to be purely nugatory. Here, in the case before us, if the civil Court decides that the mortgage is still subsisting and that a surrender made by the occupancy tenant to his landlord has not in any way affected the relation of mortgagor and mortgagee, all that can happen is that the mortgagee may go to the revenue Court and seek to use the decree of the civil Court as a weapon of defence. If the revenue Court follows, as it is bound to follow, the decision of its own superior Court, that weapon is of no avail whatever to him in the revenue Court. I am of opinion, therefore, that the course which the civil Court ought to adopt in a case of this kind is to refuse the declaratory relief asked for by the plaintiff on the ground that such relief, if granted, would be nugatory. I would, therefore, answer the question which has been propounded in this sense.
Sulaiman, J.
19. I concur in the proposed answer. Where it is clear to the civil Court that its declaratory decree would be futile the simple course would be to refuse to exercise its discretion for granting a declaratory relief. In fact I myself acted on that very ground in the case of Ganga Chamar v. Bindesari Rai A.I.R. 1925 All. 615. In that case I declined to say that the civil suit was barred by Section 167 of the Agra Tenancy Act or by any rule of limitation, but held that inasmuch as the revenue Court was bound to proceed under Section 199(2) of the Act, the civil Court had discretion to refuse the declaration. In cases where the revenue Court has already decided the dispute, the matter is concluded in view of the pronouncement of the Full Bench in the case of Mullo v. Ram Lal A.I.R. 1925 Cal. 587. Where however a case previously instituted in a revenue Court is still pending there, I would think that the more appropriate procedure would be to stay the civil suit till the matter is decided by the revenue Court and then to accept its decision. This procedure will obviate the possibility of the revenue Court litigation proving infructuous by reason of a dismissal for default, withdrawal or otherwise. In the present case however, the matter has already been decided by the revenue Court of first instance, and this is therefore a fit case in which the declaration should be refused.
Daniels, J.
20. I concur in the answer proposed and in the judgment of Mr. Justice Lindsay.
21. The case is returned to the Bench for disposal in accordance with the answer to the reference.
22. When the case came up before the Bench of two Judges after the reference to the Full Bench the following judgment was delivered:
In view of the opinion expressed by the Full Bench we allow this appeal, and setting aside the order of the lower appellate Court restore the decree of the Court of first instance with costs in all Courts.