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Malegaon Budruk Co-operative Credit Society Vs. Gangadhar Narayan Chavre - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 589 of 1936
Judge
Reported inAIR1940Bom284; (1940)42BOMLR525
AppellantMalegaon Budruk Co-operative Credit Society
RespondentGangadhar Narayan Chavre
DispositionAppeal dismissed
Excerpt:
.....to transfer the application for review to the subordinate judge :-;that the order of the district judge transferring the application for review to the subordinate judge was not without jurisdiction and that therefore the decision setting aside the sale was binding on the plaintiff. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the..........10, 1924. on may 27, 1925, anapplication was made to the jagirdar's court to set aside this sale. an application was then made to the district judge at poona to transfer the hearing of that application, and it appears from the record that affidavits1 were filed in support of the application. on november 6, 1925, the district judge ordered the application to be transferred to the first class subordinate judge at poona. that subordinate judge set aside the sale on june 19, 1926. the plaintiff applied for a review of the order, but the same was rejected on the ground that there could be no review of an order made on a review. the plaintiff thereafter filed this suit in 1932 in the jagirdar's court at male-gaon to obtain possession. under the orders of the district judge the suit was.....
Judgment:

Kania, J.

1. This is a second appeal from the judgment of the District Judge at Poona who reversed the decision of the lower Court in civil suit No. 429 of 1933.

2. The relevant facts are these : On November 13, 1921, an award was made, and to execute that award a darkhast was filed in 1924. In execution, the property in this suit was sold by the Jagirdar's Court at Malegaon and a sale certificate issued on November 10, 1924. On May 27, 1925, anapplication was made to the Jagirdar's Court to set aside this sale. An application was then made to the District Judge at Poona to transfer the hearing of that application, and it appears from the record that affidavits1 were filed in support of the application. On November 6, 1925, the District Judge ordered the application to be transferred to the First Class Subordinate Judge at Poona. That Subordinate Judge set aside the sale on June 19, 1926. The plaintiff applied for a review of the order, but the same was rejected on the ground that there could be no review of an order made on a review. The plaintiff thereafter filed this suit in 1932 in the Jagirdar's Court at Male-gaon to obtain possession. Under the orders of the District Judge the suit was transferred to the Second Class Subordinate Judge's Court at Baramati. The defence was that there was no sale as the certificate of sale was cancelled and the plaintiff was therefore not entitled to possession. The plaintiff's re-joinder was that the order of June 19, 1926, made by the First Class Subordinate Judge at Poona was without jurisdiction, and under Section 44 of the Indian Evidence Act he was entitled to prove it. The trial Court held that the order was without jurisdiction and granted a decree in favour of the plaintiff. The lower appellate Court took a contrary view and dismissed the suit as barred by the law of res judicata.

3. It is urged before me that under Bombay Regulation XIII of 1830 the Jagirdar's Court was invested with the jurisdiction to try suits of the nature specified therein, and under Section 4 the Jagirdar had authority to execute his own decrees. Section 2 deals with persons within the Jagirdar's jurisdiction who have to bring disputes before him and runs in these terms :

First,-All persons residing within the jurisdiction of a jagheerdar must bring their civil disputes for adjudication before him, unless where the parties mutually agree to the contrary or where one or the other is an European or American, or where one being the relation or dependant of the jagheerdar, the other objects on that ground.

Second.-Suits thus excepted shall be sent up to the Agent or Judge, who will dispose of them either by trying them, or by referring them for trial,...

4. The ' Judge ' mentioned there is clearly the District Judge. The present suit was filed in the Malegaon Court but appears to have been transferred under the orders of the District Judge to the Second Class Subordinate Judge at Baramati. The contention that the District Judge had no power to order the transfer of the application dated May 27, 1925, has to be proved by the appellant. It is clear that under Section 2 of Bombay Regulation XIII of 1830 the District Judge will have jurisdiction to transfer disputes to another Court under the circumstances mentioned in Section 2(2). The appellant has not shown that the circumstances mentioned in that sub-Section did not exist. Thei affidavits filed in support of the application for transfer are not here. In the absence of proof, I am unable to consider that the District Judge had no jurisdiction to transfer the application to the First Class Subordinate Judge of Poona.

5. The line of reasoning adopted by the trial Court is based on an erroneous construction of Section 4 of the said Regulation. ' Section 4 gives authority to the Jagirdar to execute his own decrees. That does not mean that the sale of land of an agriculturist must be done by him, and no other person has aright to do so. The Civil Procedure Codes of 1859 and 1882, in terms, applied to proceedings before the Jagirdar under this Regulation. In the Civil Procedure Code of 1908 the express1 affirmative provision is not incorporated, but the negative wording of Section 4 of the Code shows that the provisions of the Civil Procedure Code apply, unless there is found in the Regulation special procedure laid down on a particular point. Regulation XIII lays down no special procedure at all. Therefore the normal rule found in the Civil Procedure Code, under which sales of property of agriculturists are required to be transferred to the Collector, applies also to the Jagirdar's decrees. I therefore agree with the conclusion of the lower appellate Court that the order of the District Judgle to transfer the application for review was not without jurisdiction, and if so, the decision setting aside the sale is binding on the plaintiff. He cannot in a substantive suit re-agitate the validity of the order which is made with jurisdiction.

6. It was argued that there is no res judicata on a point of law. In my opinion that contention is unsound in this case. The question whether the sale was proper or not was directly and substantially in issue in the application for review to set aside the sale and was decided against the plaintiff. If that Court is found to have jurisdiction to decide it, the decision is binding on the plaintiff, and the question is res judicata as between the parties.

7. The appeal fails and is dismissed with costs.


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