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Paul Vaz and ors. Vs. Elizabeth Fernandes and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSuit No. 163 of 1962
Judge
Reported inAIR1967Bom389; (1967)69BOMLR172
ActsCode of Civil Procedure (CPC), 1908 - Sections 15 - Order 21, Rules 63 and 103
AppellantPaul Vaz and ors.
RespondentElizabeth Fernandes and anr.
Appellant AdvocateKania, Adv.
Respondent AdvocateK.S. Cooper, Adv.
Excerpt:
.....perfectly competent in this honourable court under clause 12 of the letters patent as it is not a suit for land but a suit to recover a debt, vide full bench decision in hatimbhai's case. now, such a suit is clearly a suit for land which is situate outside bombay and the entire cause of action. 103 has been held to be an independent proceeding instituted by a party who has failed in the summary inquiry and not a continuation of the application in execution and as such he has urged that the principle reliefs which a party seeks in such a suit are title and possession and therefore, the question of jurisdiction must be decided in the ordinary manner having regard to the provisions of civil procedure code and suits valuation act. strong reliance was placed by mr. in determining the value..........code where by the plaintiffs are seeking a declaration of their title and possession of the suit land bearing survey no. 141, hissa no. 4, situate at kole kalyan in greater bombay.(2) according to the plaintiffs, the land in suit along with several other properties belonged to dominie vaz, the father of plaintiffs nos. 1 and 2, who dies on 29th april 1928 and they are claiming title to the suit land under a will dated 2nd november 1927 left by their father. the 3rd plaintiff is the wife of the 1st plaintiff and has been joined as a formal party to the suit. the plaintiffs' case is that dominie vaz had a son by name maurice vaz by his predeceased wife and the said maurice vaz, their step-brother unauthorisedly and without having any title thereto purported to sell the said land to.....
Judgment:

(1) This is a suit under O, 21, Rule 103 of the Civil Procedure Code where by the plaintiffs are seeking a declaration of their title and possession of the suit land bearing Survey No. 141, Hissa No. 4, situate at Kole Kalyan in Greater Bombay.

(2) According to the plaintiffs, the land in suit along with several other properties belonged to Dominie Vaz, the father of plaintiffs Nos. 1 and 2, who dies on 29th April 1928 and they are claiming title to the suit land under a will dated 2nd November 1927 left by their father. The 3rd plaintiff is the wife of the 1st plaintiff and has been joined as a formal party to the suit. The plaintiffs' case is that Dominie Vaz had a son by name Maurice Vaz by his predeceased wife and the said Maurice Vaz, their step-brother unauthorisedly and without having any title thereto purported to sell the said land to one Michael Jerome Miranda by a conveyance dated 4th January 1938. Michael Jerome Miranda sold it to one Pribhan Vishram by a conveyance dated 16/18th March 1940 Pribhan Vishram sold the said land to one Batliwala by a conveyance dated 23rd October 1958 and Batliwala in his turn sold the said land to the 1st defendant by a conveyance dated 27th November, 1958, According to the plaintiffs, all these deeds did not transfer any ownership in the suit land to the respective purchasers thereunder, inasmuch as Maurice Vaz himself had no title to the suit land and that the deeds in favour of Batliwala and the 1st defendant were passed during the pendency of High Court Suit No. 523/54. The plaintiffs' case further is that in 1954 they discovered that Pirbhan Vishram was in possession of the suit land claiming title thereto under a conveyance from Michael Miranda (who claimed title from Maurice Vaz) and hence instituted Suit No. 523/54 against Pirbhan Vishram and others for declaration of their title and possession of the said land bearing Survey No. 141, Hissa No, 4 decree for possession of the suit land was passed in plaintiffs' favour. on 16th November 1959 against Pirbhan Vishram. In execution of the decree a warrant of possession was issued but on 15th June 1961 Defendent No. 1 obstructed and refused to hand

over possession of the land on the ground that she was in possession in her own right. On 6th July 1961 the plaintiffs took out a chamber summons for removal of obstruction, but Defendant No. 1 contended that she was a bone fide purchaser of the said land under a conveyance dated 27th November 1958 executed in her favour by Batliwala. On 17th July 1961 this Court dismissed the said chamber summons. The plaintiffs have, therefore filed the present suit within one year of the passing of the said order. The plaintiffs have prayed for a declaration of their title and also possession of the suit land from the Defendants. The 2nd defendant has been impleaded as he happens to be the husband of the 1st defendant and has also held himself out to be the owner of the suit land in certain applications, which he has made to the Municipal Corporation.

(3) Apart from raising several defences on merits, including one of adverse possession for more than 12 years. the Defendants have contended that this Court has no jurisdiction to entertain and try the suit, inasmuch as the suit is one for declaration of title and possession of land, the market value of which as stated in the plaint, is Rs. 5,000/- and as such the same ought to have been filed in the Bombay City Civil Court.

(4) Both Mr. Kania for the plaintiffs and Mr. Cooper for the defendants requested me to decide the issue of jurisdiction as a preliminary issue, for if that issue was answered in favour of the defendants, there would be no occasion for proceeding further with the trial and considerable costs would be saved.

(5) On the question of jurisdiction, Mr. Cooper has urged that in substance the suit is for title and recovery of possession of land and as such the market value of the property would be decisive of the matter. He pointed out that the subject matter of the suit, viz, the land in question has been valued at Rs. 5,000/- in the plaint at the date of the filing of the suit and that the same is not worth more than Rs. 10,000/- or 12,000/- even to-day and therefore, this Court will have no jurisdiction to entertain and try the suit. On the other hand Mr. Kania for the plaintiffs contended that since the suit is one under Order 21, Rule 103 of the civil Procedure Code it involves the question of setting aside an order passed by this Court on 17th July 1962 in execution proceedings and therefore, this Court alone has jurisdiction to try the suit irrespective of any valuation of the subject matter of the suit. In support of his contention he has relied on a decision in Khemchand and Co. v. Shivdanmal Agarwal, reported in : AIR1961Bom112 . He pointed out that the plaintiffs tried to file the suit in the City Civil Court but in view of the said decision they were referred to this Honourable Court.

(6) Before dealing with the decision on which reliance has been placed by Mr. Kania, I would like to consider the question of jurisdiction in the light of first principles , for I may observe at once that the decision in : AIR1961Bom112 is one relating to a suit under Order 21, Rule 63, while the present suit is one under Order 21, Rule 103 of the Civil Procedure Code and as such the ruling in that case will not be directly applicable.

(7) At the outset it may be stated that though in the plaint the plaintiffs have not specifically prayed for setting aside the order passed by this Court on 17th July 1961. the suit having regard to the several averments made therein, is undisputably one under Order 21, Rule 103 of the Civil Procedure Code; but all the same it is for declaration of title and possession of land and as such ordinarily the market value of the land at the date of the suit will govern the question of jurisdiction. Mr. Kania did not dispute that the land in question was worth Rs. 5,000 at the date of the filing of the suit as stated in the plaint, nor did he dispute that its value even today would not be more than Rs. 10,000/- or Rs. 12,000/- The only ground on which Mr. Kania contends that the City Civil Court will have no jurisdiction to try the suit is that the question of setting aside this Court's order passed in execution proceeding is necessarily involved in the suit if the plaintiffs are to succeed and the City Civil Court being an inferior Court, it is this Court which can entertain the suit. In other words, according to Mr. Kania, irrespective of the valuation of the subject matter, it is the nature and object of the suit that determines the jurisdiction of the Court and the present suit is under Order 21, Rule 103 and its object or aim is to get the order passed by this Court in execution proceeding set aside. He, therefore, contends that this Court alone has jurisdiction to try the suit. It is not possible to accept the arguments of Mr. Kania. In the first place, the nature of a suit and its object may be relevant considerations for determining the Court fees payable in the suit, but for determining the question of jurisdiction regard must be had to Sections 15 to 20 of the Civil Procedure Code or Clause 12 of the Letters. Patent, as the case may be and the provisions of the Suits Valuation Act, under which primarily it is the valuation of the subject matter which is determinative of the matter. Secondly, acceptance of Mr. Kania's argument that because a suit under Order 21, Rule 103 necessarily involves the question of setting aside an order passed in execution proceedings the Court, which passes such order in execution if it happens to be a superior Court, should alone be the Court competent to entertain such a suit, would lead to anomalous results; for instance, it is well settled that a suit on an equitable mortgage by deposit of title-deeds created in Bombay but in respect of the property outside Bombay is perfectly competent in this Honourable Court under Clause 12 of the Letters Patent as it is not a suit for land but a suit to recover a debt, vide Full Bench decision in Hatimbhai's case. 29 Bom LR 498 = AIR 1927 Bom 278 and if A (equitable mortgagee) after obtaining a final decree absolute for sale against B (mortgagor) in this Court gets the property sold in execution and if C, the auction purchaser is obstructed by D in the matter of recovery of possession C will make an application for removal of obstruction under Order 21, Rule 97 and if D succeeds and C's application is dismissed by this Court C will have to file a suit under Or. 21, R. 103 against D to recover possession on the strength of his title under the auction-purchase. Now, such a suit is clearly a suit for land which is situate outside Bombay and the entire cause of action. which consists of causing obstruction to delivery of possession shall have arisen outside Bombay i.e., at the place where the property is situate and supposing D is not residing or carrying on business or personally working for gain in Bombay then such a suit cannot be filed in Bombay High Court under Clause 12 of Letters Patent. Under Section 16 of the Civil Procedure Code it will lie in such Court in whose territorial jurisdiction the property is situate, subject again to the pecuniary value of the property, But, on the argument of Mr. Kania, because the order in execution has been passed by this Court such a suit will be triable only by this Court which in my view, will be incorrect position. The fact that this Court has passed an order in execution in favour of the obstructionist is no part of the cause of action it only means that the summary remedy has been denied to the auction-purchaser or holder of a decree for possession. The auction-purchaser's or decree-holder's cause of action is complete when he is obstructed in the delivery of possession. This is so, far it is open to him to file the suit for possession no sooner he is obstructed without resorting to the summary remedy in execution. Thirdly, it is not that in every suit under O. 21, R. 103 the question of setting aside the order in execution is involved; in some cases it may be involved but in others it is not involved, it is incidental and the suits in substance must be regarded as suits for possession of immovable property. On first principles, therefore I am of the view that it is the valuation of the subject-matter of the suit that will be decisive of the question of jurisdiction.

(8) On behalf of the defendants Mr. Cooper pointed out that a suit Order 21, R. 103 has been held to be an independent proceeding instituted by a party who has failed in the summary inquiry and not a continuation of the application in execution and as such he has urged that the principle reliefs which a party seeks in such a suit are title and possession and therefore, the question of jurisdiction must be decided in the ordinary manner having regard to the provisions of Civil Procedure Code and Suits Valuation Act. In this behalf, Mr. Cooper has invited my attention to a Division Bench ruling of this Court reported in (1904) 6 Bom L. R. 302, Damul Dharam v. Shripat Narayan, and that judgment, in my view, really concludes the question that has been argued before me. In that case, the suit was filed under section 335 of the old Civil Procedure Code, which was equivalent to Order 21, Rule 103 of the present Civil Procedure Code, and the Head Note in that case runs as follows:

'Section 335 of the Civil Procedure Code simply enacts that a party against whom an order on a summary proceeding is passed may institute a suit to establish the right he claims to present possession. A suit so instituted would not be a continuation of the summary application but an independent proceeding governed by the relevant provisions of the Code and it would lie in the Court within the local limits of whose jurisdiction the property in dispute is situate.'

(9) It is necessary for me to discuss in detail the other authorities which have also taken the same view namely a suit under Order 21, Rule 103, should be regarded as an independent proceeding and not as a continuation of the summary proceeding; a mere reference to two decisions would be enough vide AIR 1940 Mad 627 and . In view of the above discussion and having regard to the aforesaid authorities it is clear that the present suit filed by the plaintiffs under O, 21, Rule 103, seeking declaration of title and possession, since the market value of the subject-matter of the suit is less than Rs. 25,000/-, cannot be entertained by this Court.

(10) Mr. Kania however, relied upon the decision in : AIR1961Bom112 where it has been held that the suit under O. 21, R. 63 could only be brought in the same Court in its ordinary jurisdiction as the one which had made the order of attachment in execution of the decree. In that case, certain moveable properties had been attached by the Sheriff of Bombay in execution of a decree passed by the City Civil Court and initially the plaintiffs had made an application under O. 21, R. 58 to the City Civil Court for raising the attachment on the ground that the said moveable property (several articles) belonged to them. The plaintiff's claim was allowed in respect of certain other articles by the City Civil Court. The plaintiffs thereupon filed a suit claiming that those articles (in respect whereof their claim had been disallowed by the executing Court) belonged to them and they were not liable to attachment. The suit was obviously under O. 21, R. 63 of the Civil Procedure Code and since the value of the articles , which were subject matter of the suit, was within the pecuniary jurisdiction of the Court of Small Causes, the plaintiffs instituted the suit in the Small Causes Court. On a preliminary point of jurisdiction raised by the defendants, the Small Causes court took the view that it had no jurisdiction to entertain or try the suit and therefore, ordered that the plaint be returned to the plaintiffs for presentation to proper Court. Against that order the plaintiffs preferred a revisional application to this court. Mr. Justice Shah took the view that since the suit was governed under O. 21, R. 63 of the Civil Procedure Code and its aim and object was to set aside the order passed by the City Civil Court in execution, the Small Causes Court had no jurisdiction to entertain the suit, but that the City Civil Court had jurisdiction. Strong reliance was placed by Mr. Kania upon certain observations in that judgment, which runs as follows:

'The jurisdiction of the Small Causes Court in such cases is not to be determined with reference to the value of the property attached but with reference to the object and nature of the suit itself. The suit, as already observed, is not of an ordinary character. It is a suit of a statutory nature specifically designed to set aside the order passed by the executing Court. Unless, therefore, there is a specific provision to the contrary, such a suit, in my opinion, could only be brought in the same Court in its ordinary jurisdiction as the one which had made the order of attachment in execution of the decree.'

(11) Mr. Kania further urged that the scheme of O. 21, R. 58 to 63 and of O. 21, Rr. 97 to 103 being in pari materia the same, the ratio of the above decision should be applied to a suit under O, 21, R. 103 of the Civil Procedure Code. In that behalf Mr. Kania, relied upon the decision of this Court in Laxman Ramji Jadhav v. Dattatraya Ramkrishna reported in 31 Bom L. R. 765 ;AIR 1929 Bom 379 where it has been held that the principles applicable to one set of rules (O. 21, Rr. 58 to 63) equally apply to the other set of rules (O. 21, Rr. 97 to 103). He relied upon the following observations of Mr. Justice Patkar;

'Rules 58 to 63 corresponding to Ss. 278 to 283 of the old Civil Procedure code and rules 97 to 103 corresponding to Ss. 328 to 335 of the old Civil Procedure code, run on parallel lines .. .. .. As the former set of rules relates to attachment of the property, rule 63 refers to a suit to establish the right which the plaintiff claims to the property in dispute. As the latter set of rules refers to possession, rule 103 refers to a suit to establish the right which the plaintiff claims to the present possession of the property. Though the two sets of rules relate to different matters, the principles applying to one set of rules equally apply to the other according to the decisions in Minguel Antone Lopes v. Waman Lakshman (1889) Bom PJ 17.'

Mr. Kania therefore, urged that the ratio of the decision in : AIR1961Bom112 should be applied to a suit under O. 21, R. 103 of the Civil Procedure Code.

(12) On the other hand, Mr. Cooper contended that there are series, of decisions of other High Courts which have taken a contrary view viz., that even when the suit was to be filed under O. 21, R. 63 the valuation of the subject-matter was material and relevant for the purpose of deciding the question of Court's jurisdiction. He referred me to one decision of Allahabad High Court reported in ILR (1895) 17 All 69, Dwarka Das v. Kameshar Prasad and another decision of the Madras High court reported in ILR (1956) Madras 1101 :AIR 1956 Mad 402, S. Renganatha Aiyangar v. Tirupparankundram Arumuga Nainar Trust. he pointed out that these decisions of the other High Courts were not brought to the notice of Mr. Justice shah, when he decided the case in : AIR1961Bom112 . The Madras decision to which Mr. Cooper has invited my attention has reviewed all the previous case law on the subject and has categorically taken the view that it is the valuation of the subject matter of the suit filed under O. 21, R. 63 of the Code that will have to be taken into account for the purpose of deciding the question of Court's jurisdiction. The head-note appearing at page 1101 of the report is very material and it runs as follows;

'In determining the value of the suits filed under Order XXI, rule 63, Civil Procedure Code (Act V of 1908), for purposes of jurisdiction, a distinction has to be drawn between cases where the plaintiff is the defeated claimant and cases where the plaintiff is the decree-holder who is foiled in his attempt to attach the property. In the latter case, the decree amount alone should decide the jurisdiction of the Court. In the former case, where the defeated claimant seeks to extricate his property from the clutches of the attachment, then if the property is of higher value than the decree amount, the decretal amount determines the jurisdiction; but where the property is of a lower value, then the market value of the property should be the guiding factor.'

The Madras decision clearly indicates that for the purposes of jurisdiction the value of the subject matter has to be taken into account in cases of suits filed under O. 21, R. 63, notwithstanding the fact that in such suits the question of setting aside the order passed in execution of setting aside the order passed in execution arises, In other words, notwithstanding the aforesaid nature and object of such a Suit the Madras High Court has taken the view that the valuation of the subject matter is decisive on the question of Court's jurisdiction. Mr. Cooper submitted that a suit under O. 21, R. 63 may be a suit of special nature and its object may be to set aside the order passed in execution but that does not mean that for the purpose of jurisdiction regard should not be had to the value of the subject matter of such suit. There is considerable force in this submission, Mr. Kania pointed out that Mr. Justice Shah had relied upon certain observations of the Privy Council in the case of Smt. Bibi Phul Kumari v. Ghanshyam Misra (1908) 35 I A 22 , in support of the conclusion reached by him. However, I may point out that in that case the Judicial Committee was not concerned with the question of jurisdiction, but was concerned with the question of court-fees payable in such suits and the Judicial Committee took the view that such a suit, since its object was to alter or set aside a summary decision arrived at in execution proceedings, would be governed by Article 17 of Schedule 2 of the Court Fees Act; the question of jurisdiction of the Court was not involved in that case. Mr. Kania then contended that the basis of the decision in : AIR1961Bom112 seems to be that a Court of inferior jurisdiction should not be allowed to sit in judgment upon an order passed by a superior Court and if the view expressed in the Madras decision was accepted it would lead to such odd result that an inferior Court will have jurisdiction to set aside the order passed by a superior Court . I fail to understand the force of this contention, for the order of the superior Court in execution proceedings is after all a summary decision arrived at after holding a summary inquiry and the Court in which a suit under O. 21, R. 63 is instituted adjudicates upon the substantive rights of the parties after holding a full-fledged inquiry and therefore, I do not think there is anything odd in such latter Court upsetting the summary decision of a superior Court. Speaking for myself, I would prefer to follow the view of the Madras High Court on the question of Court's jurisdiction in cases of suits under O.21, R. 63. However, it is really unnecessary for me to decide that point since as stated earlier the present suit is not under O. 21, R. 63. It is a suit for title and possession of immovable property under O. 21, R. 103 and I hold that value of the subject-matter of the suit is determinative of the question of jurisdiction.

(13) Relying upon the observations of Mr. Justice Patkar in 31 Bom L R. 765 :AIR 1929 Bom 379 Mr. Kania urged that the ratio of the decision in : AIR1961Bom112 should be applied to the present case. It is no doubt true that the general scheme of both the sets of rules (Rr. 58 to 63 and 97 to 103 of O. 21) is the same and generally the principles applicable to one set of rules would be applicable to the other set of rules,, but that does not mean that in all respects the consequences of proceedings taken under the former set of rules and consequences of proceedings adopted under the latter set of rules would necessarily be the same. For instance, the plaintiff (who is defeated by the claimant by getting the attachment raised in the summary inquiry) if he succeeds in his suit under O. 21, R. 63, ordinarily gets a declaration that the claimant has no independent title or interest in the property and the property is liable to be attached and proceeded with but thereafter he proceeds to attach and sell the property in execution of his initial decree, while in the case of a suit for possession against the claimant under O. 21, R. 103, the plaintiff on success executes the very decree passed in that suit and there is no question of such plaintiff seeking to execute the former decree for possession, which he had obtained in the earlier suit. This shows that the decree usually passed in a suit under O. 21, R. 63 is of a different nature than the decree passed in a suit under O. 21, R. 103. This also shows that the nature and the scope of the two suits are different. It is, therefore, difficult to accept Mr. Kania's contention that the ratio of the decision in : AIR1961Bom112 should be applied to a suit filed under O. 21, R. 103 of the Civil Procedure Code. As I have said earlier, a suit under O. 21, R. 103 of the Civil Procedure Code is an independent proceeding for recovering possession of the property and in such a suit the market value of such property would govern the question of jurisdiction of the Court. In this view of the matter, it is clear that he present suit which relates to possession of immoveable property, the market value whereof is very much below Rs. 25,000/- would not be competent in this Court. The preliminary issue is, therefore, answered in favour of the defendants.

(14) In the result, I direct that the plaint be returned to the plaintiffs for presentation to the proper Court.

(15) As regards costs, it is true that the defendants have succeeded, but in view of the fact that the position was not very clear and also in view of the fact that the plaintiffs had first approached the City Civil Court for the purpose of filing the suit there, but were directed to approach this Court in view of the decision in : AIR1961Bom112 . I feel that the proper Order for costs would be that the plaintiffs should bear and pay their own costs of this suit and the costs of the defendants between party and party of the issue tried in this Court should be costs in the cause.

(16) Plaint returned for presentation to proper Court.


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