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Sarottamrao Vishwanathrao and ors. Vs. Ramrao Narayanrao - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.O. No. 211 of 1963
Judge
Reported inAIR1966Bom237; (1966)68BOMLR10; ILR1966Bom707; 1966MhLJ235
ActsHyderabad Atiyat Enquiries Act, 1952 - Sections 2(1)(A), 3-A, 12 and 13(1); Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantSarottamrao Vishwanathrao and ors.
RespondentRamrao Narayanrao
Appellant AdvocateR.G. Bhadekar, Adv.
Respondent AdvocateH.G. Vaishnav, Adv.
Excerpt:
.....civil procedure, 1908 - civil court rejected suit for subject matter being related to denial of 'atiyat' grant - question of rights, title and interest arising out of 'atiyat' grants cannot be decided by ordinary civil courts - matter in suit related to denial of 'atiyat' grants which falls within competency of 'atiyat' courts only - appellate court erred in finding that matter not related to 'atiyat' grant - appellate court erred in holding that suit maintainable - dismissal of suit by trial court for want of jurisdiction justified. - - [7] the contention that is made of on behalf of the appellants is that the claims of made in the suit are within the exclusive jurisdiction the atiyat court and not liable to the be decide only the strong of relevance has been placed on the scheme..........aurangabad. in connection with the service to be rendered to the temple of the ram mandir, and atiyat grant has been made by the government. under the grant, jair or villages of [i] naye gawahan and [ii] dholpuri was made and about 13 other lands were also given as inami lands. the grant was made in favour of one hari buva, the common ancestor of the parties to the suit. in respect of the grant a muntakhab no. 1080 d -18. third 1297 fasli was issued in the name of one raghuvir vishwasrao, being a collateral ancestor of the plaintiff in his paternal line. in connection with the inami lands, muntakhab no. 486 dated 29th aban 1926 fasli was issued. in the prior inam enquiry proceedings , raghuvir vishwasrao has appeared as manager to the joint family of the parties. he had in the.....
Judgment:

[1] This is an appeal by the original defendants against the appellate judgment and order of remand of the Respondent plaintiff's suit passed by the Extra Assistant Judge, Aurangabad, in Civil Appeal No. 241 of 1961, on June 13, 1963. The above appeal No. 241 of 1961 come to be filed by the Respondent plaintiff's because by his judgment dated September 30, 1961, the joint Civil Judge Junior Division , Aurangabad, held that the Civil court had no jurisdiction to try the plaintiff's Regular Suit No. 36 of the 1959 and that the suit was not tenable in the form in which it was constituted. The learned appellate judge reversed the first finding that the Civil court had no jurisdiction and as regards the second findings, held that the question of tenability was liable to be decided after evidence of parties was recorded and not as preliminary issue as on demurrer.

[2] It is once again contended on behalf of the Appellants. [Original Defendants] in this appeal that the Civil court has no jurisdiction to entertain the plaintiff suit and the appellate order or remand should accordingly be set aside. The facts relevance in connection with the above contention are as follows:-

[3] In the plaintiff's suit there are three prayers as follows:-

[1] It be decreed that the plaintiff are owners of the Inami lands [ Mentioned in the plaint] to the extent of one half thereof.

[2] That the plaintiffs are entitled to one half of the compensation amount of the jagir mentioned in the plaint.

[3] The plaintiff be paid Rs. 800 in consequence of the declaration claimed in prayer [1] towards their half share in the income of the Inami lands for two years prior to the date of the suit.

The main allegations of the in the plaint in connection with the above relief's claimed therein are as follows:-

[4] There is a Ram Mandir situated at Bhalgaon in taluka Aurangabad. In connection with the service to be rendered to the temple of the Ram Mandir, and Atiyat grant has been made by the Government. Under the grant, Jair or villages of [I] Naye Gawahan and [ii] Dholpuri was made and about 13 other lands were also given as Inami Lands. The grant was made in favour of one Hari Buva, the common ancestor of the parties to the suit. In respect of the grant a Muntakhab No. 1080 D -18. third 1297 Fasli was issued in the name of one Raghuvir Vishwasrao, being a collateral ancestor of the plaintiff in his paternal line. In connection with the Inami lands, Muntakhab No. 486 dated 29th Aban 1926 Fasli was issued. In the prior Inam enquiry proceedings , Raghuvir Vishwasrao has appeared as manager to the joint family of the parties. He had in the enquiry accepted the position that Venkatrao, The grandfather of the plaintiff and real brother of Raghuvir Vishwasrao the Muntakhab holder was Raghavir's son Rangrao. The ultimate Muntakhab holder was defendants 1' father Vishwasrao who died in May 12, 1957. The plaintiff case is that the plaintiffs branch was being paid from time to time the half share of the income from he Jagir villages and the Inami Lands. In that connection, Rangrao, had executed in favour of the plaintiff father a writing dated 26th Azur 1314 Fasli. A further writing had been executed in 1328 Fasli. Payment of half share was continuously being made to the plaintiff branch evenly by Vishwasrao the father of defendant 1, prior to his death on May 12, 1957. When Vishwasrao had with held payment, the disputes were referred to arbitration and an award dated 2nd Meher 1343 Fasli was made. That award was made rule of Court. Under the award, possession of certain properties was directed to be continued were given for payment of Rs. 260 of the plaintiff branch. The plaintiff case on the above facts as summarised in paragraph 9 of the plaint is that the Jagir and the Inami Lands were joint ancestral properties of co - ownership of the parties to the suit. The plaintiff was entitled to one behalf share in these properties.

[5] Admittedly, in 1957-58. In consequence of the Hyderabad Abolition of Jagirs Regulation 1358 Fasli, the Jagir of the Above two villages was abolished. In certain consequential proceedings the commutation sum payable in respect of the Jagir of the two villages has been fixed at Rs. 1,257-10-0 to be paid annually to the Muntakhab holder, the defendant 1. From certain observation in the judgment of the trial court it appears that on abolition of Jagirs all the rights have ceased to exist and the same against the Jagir administrator. Now, the result of that position is that so far as the Jagir administrator and /or the Government is concerned the commutation amount the Rs. 1,257-10-0 is payable to defendant 1. The plaintiff claims that in respect of the above commutation of sum the plaintiff claims that the in respect to the above commutation sum the plaintiff as in one half owner of the ancestral jagir villages in entitled of payment of the sum of Rs. 628-13-9 annually by defendant 1. The plaint amount made the above prayer [2] in the plaint claiming a declaration that the plaintiff are entitled to half the compensation amount of the Jagir.

[6] Admittedly the grant in respect of the 13 Inami Lands mentioned in the plaint has not been affected in any manner by the Hyderabad there are service Inami Lands in respect of service to be rendered to the temple of Ram Mandir. The plaintiff case as regards these Inami land in Paragraph 10 of the plaint of is that the income to Rs. 2,4000 per year. Defendant 1 is entitled to retain two third of that income as remuneration for the services rendered to the temple of Ram Mandir. As regards the balance of Rs. 800, the same is divisible between the plaintiff and the defendant as one - half owners of the Inami lands made prayers has in respect of the Inami lands made prayers [1] and [3] i.e, he has claimed a declaration that he is the owner of the Inami land to the extent of one half and he is entitled to a decree for the Rs. 800 being his share of income for a period of two years prior to the date of the suit.

[7] The contention that is made of on behalf of the Appellants is that the claims of made in the suit are within the exclusive jurisdiction the Atiyat court and not liable to the be decide only the strong of relevance has been placed on the scheme of the Hyderabad Atiyat Enquiries act 1952, and particularly on section 2[1] [a] and S. 13 [1] of the Act. Reference has been made by both side also the to the provisions in section 2 [1] [b], 3 - A and 12 of the Act. The section 2[1] [a], and13 [1] run as follows:

'2 [1] In this Act unless there is any things repugnant in the subject or context.

[A] 'Atiyat court' Means a court or authority competent to make Atiyat enquiries and enquiries as to claims to succession to any any rights, title or interest in Atiyat grants and matters ancillary thereof:

X X X X 13 [1] Except as provided in this Act, the decision of an Atiyat court shall be final and shall not be questioned in any court of law. X X X X X X

The language of these sections is plain and clear. Apparently the true effect of the above provisions is that in connection with question which are liable be decided by Atiyat Court, the decisions of that court are not liable to be questioned in any court of law, thereby meaning in any civil court, except as provided in the act itself. The question liable to the decided by Atiyat courts obviously are to Atiyat enquiries and also of enquiries as to claim to succession to and any rights, title or interest in Atiyat grant and matter ancillary thereto. The phrases 'any right title or interest' and 'matters ancillary thereto' are indicative of the wide appears me that the true effect of the above provision is that a claim of any kind arising out of Atiyat courts. The question of rights, title and interest arising out of Atiyat grants cannot be decided by ordinary civil courts unless provision giving jurisdiction to decide such matters can be found in the act.

[8] Before referring to the other relevant provisions, it is necessary to state that in my view all claims made in the plaint in this suit title claimed by consequent upon the right and / or title claimed by the plaintiff in the Atiyat grant mentioned in the plaintiff. In the result, a finding would have to be made in favour of the Appellants on the contention made above unless it possible to find some provision in the act by which jurisdiction has been conferred on civil courts to try question such as arising in this suit.

[9] In this connection section 12 provides: ' In so far as questions of succession, legitimacy, divorce or other question of personal law are concerned, the final decision of a civil court shall be given effect to by the Atiyat Court xxx xxx before or after the decision of the Civil Court.' It is therefore clear that disputes regarding rights title and interest in Atiyat grants arising out of disputes relating to succession legitimacy, divorce or other questions of personal law, are liable to finally decided by a civil court. In connection with these matters, the atiyat court is court of concurrent jurisdiction but decisions of the Atiyat court are not final and liable to be substituted by decision of a civil court. Where disputes in respect of right, title and interest in Atiyat grants do not arise out of disputes relating to succession, legitimacy divorce or other question of personal law, they are not liable to be decided by a civil court. That is the result of the provisions in section 13 of the act. Reliance has been placed strongly on behalf of the Respondent of parts where of run as follows:

'3 - A [1] In the case of Atiyat grants specified in sub section [I] of clause [b] of sub section [1] of section 2, Atiyat enquiries and enquiries to any rights, title or interest therein shall, xxx be held in Atiyat court xxx and in the course of such enquiries Atiyat, courts shall also be competent to enquire of into claim to the succession arising in respect of such grants:-

Provided that claims to succession arising after the completion of Atiyat inquiry of any such grant shall not be entertained in any atiyat court and all such claims shall be filed in and decided by the competent civil Court. [2] In the case of Atiyat grants specified in sub clauses [ii] to [vi] of clauses [b] sub - s [1] or section 2, all Atiyat enquiries enquiries as to claim to succession to or any rights title to interest therein and matter ancillary thereof shall be held in Atiyat court in accordance with the provisions of this Act.'

The sub - Clauses [I] on the one had and [ii] to [vi] on the other of clause [b] of section [1]of section 2 require to be stated to arrive at the true meaning of the provision in section 3 - A. Section 2 [1] [b] runs as follows:-

'[b] 'Atiyat grants' mean [I] in the case of Jagirs abolished under the Hyderabad [Abolition Jagir] Regulation, 1358 Fasli [LXIX of 1358 Fasli], the commutation sums payable in respect thereof under the Hyderabad Jagirs [Communtation] Regulation, 1359 Fasli [XXV of 1359 Fasli].

[Ii] Inams to which the Hyderabad Abolition of Inams act, 1954 [VIII of 1955] is not applicable.

[Iii] in the case of inams abolished under the Hyderabad Abolition of Inam Act, 1954 [VIII] of 1955] the compensation payable under that act:

[iv] cash grant to which the Hydrabad Abolition of cash Grant Act, 1952 [XXXIII of 1952] is not applicable.

[v] cash grant of cash grant abolished under the Hyderabad Abolition of cash Grants Act, 1952 [XXXIII of 1952] subject of the payment of compensation the compensation payable in respect thereof:.

[10] Mr. Vaishnav for the Respondents has submitted that the true effect of the proviso to sub - s [1] of section 3 - A is that after Atiyat enquiry is completed in respect of Jagirs abolished under the Hyderabad Abolition of Jagirs Regulation, 1368 Fasli, the question of rights, title and interest of any claimant in the commutation sums of payable in respect of the abolished Jagir is liable to be decided by a Civil court only. Now, there is on substance in this contention. The proviso only refer to claim to succession and does not refer to any other dispute between the parties, relating to the rights, title and interest of claimant in the commutation sum payable as a result of abolition of Jagir. It appears that distinction has been made between the question of succession arising in the matter of commutation sums payable in consequence of succession arising in respect of other matter referred to in sub Clauses [ii] to [vi] of Clauses [b] of sub -section 1 of s. 2. The true effect of the distinction made between the matters mentioned in sub clauses[i] the other sub - Clauses [ii] to [vi] is that even in respect of claim to succession arising from time to time in the matter referred to in sub clauses [ii] to [vi] the Atiyat court would have to have decide the same and would have jurisdiction to decide the same and would have time to time. That is not so with reference to the claims of the succession in respect of commutation sums payable in consequence of abolition of Jagirs. The submission made by Mr. Vaishnav that the effect of the provisions the section 3 - A is that section each and all claims relating to right title and interest in Atiyat grants are liable to the decided by a civil court is not justified by the language of the section. On a reading of section 3- A and 12 and along with the provisions in section 13 [1] and 2 [1], [a] it is clear that a civil court will not have jurisdiction to decide claims to rights, title and interest in Atiyat grants or matters of ancillary thereof except as regards the question of succession, legitimacy divorce or other question of the personal law.

[11] Now, having regards to the contentions made on behalf of the defendants the question any disputes which arose between the parties may be summarized as follows:-

[12] The defendants denied that the Atiyat grant in respect of the jagir villages of and the Inami land was ancestral joint property of the plaintiff and the defendant. On that footing they contented that the plaintiff was not entitled to any share in the Jagir villages and the Inami land mentioned in the plaint they therefore, contended that the plaintiff was not entitled to the declaration claimed in prayers [1] and [2] of the plaint and was not entitled to payment of compensation that claimed in prayers [1] and [2] of the plaint and was not entitled to payment of compensation lied in prayer [3] of the plaint. They denied that their ancestors had admitted the plaintiff claim as joint owners in the Atiyat grant and / or the Jagir villages and Inami Lands mentioned in the plaint. The further contended that the plff's claim was barred by law of the sum of Rs. 800 claimed in prayer [3] of the plaint. The main substances of the contentions made as above by the defendants in their written statement in that they denied that the plff's had any rights, title or interest in the Atiyat grant and / or Jagir villages and the Inami lands mentioned in the plaint. The main substance of their dispute did not involve merely a question of succession legimacy, divorce or other question of personal law referred to in section 12 of the Act. The whole question which arose for decision in that suit obviously related to the plaintiff not having right title or interest in the jagir villages and the Inami and Lands mentioned in plaint.

[13] Having come to the above conclusion, the trial court dismissed the plff's suit. The appellate court, however, came to difference conclusion. The Appellant court has not taken notice of the provisions I section 2[1][a] and 13 of the Act. The Appellate court has come to make a wrong finding that the 'Plaintiffs' are not requesting the civil court to adjudicate upon the question of Atiyat grant. The question to be decided in this suit is the question of share between the Inamadars themselves'. It appears to me that the above basis of the learned Judge's judgment of the is not correct. The contentions made by the defendants amount to denial of the title of the plaintiff to the Atiyat grant and / or the Jagir Villages and the relevant commutation sum and the Inami lands mentioned in the plaint. The question that was raised by the defendant was not merely of share between the Inamdars themselves as mentioned by the learned Judge. The question of the defendant's refusal to admit the plaintiff title to the Atiyat grant mention in the plaint and refusal of the Defendants of make payment to the plaintiff as co = share was, in my view liable to be decided by the Atiyat court alone. That is the result of the provisions section 2 [1] [a] and 13 [1] of the act.

[14] In the result, the learned Judge's finding that the suit was maintainable in the Civil court is set aside. The appellant order dated June 13, 1963 is set aside. The decree of dismissal of the suit with costs passed by the court of first instance on September 30, 1961, is revived. The respondent will pay costs of the this appeal and also costs of the Appellants of the above civil Appeal. The respondent will be entitled to file the above suit in the Atiyat court, if he so thinks fit.

[15] Appeal allowed.


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