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Keshaorao Ramji Vs. Gunwantrao Anyaji - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 36 of 1957
Judge
Reported in(1963)65BOMLR499; 1963MhLJ676
AppellantKeshaorao Ramji
RespondentGunwantrao Anyaji
Excerpt:
.....to bind them by an intended sale, in respect of which an order of pre-emption has been passed by a revenue officer under central provinces tenancy act, 1920, is not barred by reason of the provisions contained in section 105 of the act.; balaji koshti v. rambilas , fakira v. ramkisan (1924) 21 n.l.r. 25, lalsing v. pandit waman rao (1925) 22 n.l.r. 114, nilkanth v. fakira (1930) 27 n.l.r. 265 and sardar mohammad nawaz khan v. bhagta nand (1938) i.l.r. 19 lah 514 referred to. - - it is well-settled that exclusion of the jurisdiction of civil courts must not be readily inferred and that statutes ousting the jurisdiction of civil courts must be construed strictly. the proceedings of revenue officers are in nature summary and language much more strong and different than is used in clause..........to bind them by an intended sale hi respect of which an order of pre-emption has been passed by a revenue officer under the c.p. tenancy act. the question arises on the following facts.2. one bhupatji died in the year 1890 leaving behind four sons ramji, shrawan, vithu and laxman. we are not concerned with the three younger sons because bhupatji's occupancy rights in the two fields which arc the subject-matter of the present suit, admittedly devolved on ramji alone. the fields are situated in a village called saikheda in the district of wardha, the defendant having been the malguzar of the village. on april 13, 1942, ramji gave a notice to the defendant that he intended to effect a sale of his occupancy rights in the two fields for a consideration of rs. 325 and that the defendant might.....
Judgment:

Chandrachud, J.

1. A question as regards the construction of Section 105 of the C.P. Tenancy Act (Act No. I of 1920) arises in this Second Appeal. The question is whether a Civil Court has jurisdiction to entertain a suit brought by the members of a joint Hindu family to challenge the right of the manager to bind them by an intended sale hi respect of which an order of pre-emption has been passed by a Revenue Officer under the C.P. Tenancy Act. The question arises on the following facts.

2. One Bhupatji died in the year 1890 leaving behind four sons Ramji, Shrawan, Vithu and Laxman. We are not concerned with the three younger sons because Bhupatji's occupancy rights in the two fields which arc the subject-matter of the present suit, admittedly devolved on Ramji alone. The fields are situated in a village called Saikheda in the district of Wardha, the defendant having been the malguzar of the village. On April 13, 1942, Ramji gave a notice to the defendant that he intended to effect a sale of his occupancy rights in the two fields for a consideration of Rs. 325 and that the defendant might claim the right of pre-emption if he so chose. On the date of notice Ramji had a son Keshavrao, a grandson Gulab, and two great-grandsons Manohar and Bhaskar. who are the four plaintiffs in the present suit. In pursuance of the notice given by Ramji, proceedings were initiated under Section 12-A of the Central Provinces Tenancy Act, 1920, and on December 3, 1942, an order was passed that the defendant was entitled to pre-empt the intended sale which, it must be mentioned, covered the entire interest of the joint family and was not restricted to Ramji's interest. On October 29, 1945, Ramji died, whereupon the plaintiffs brought a suit against the defendant for a declaration that the order of pre-emption passed by the Revenue Officer was not binding on them as it was obtained by fraud and for an injunction restraining the defendant from obtaining possession of the two fields. That suit came up to the High Court of Nagpur in Second Appeal No. 288 of 1948, which was decided by Kaushalendra Rao J. on February 19, 1948. The learned Judge dismissed the suit on the narrow ground that the plaintiffs, being out of possession, were not entitled to claim injunction and the other relief of declaration could not be granted as the consequential relief of possession was not sought. An argument was advanced before the learned Judge that the sale was in any event not binding on the interest of the plaintiffs as there was no evidence to show that the sale was supported by legal necessity. While dealing with this contention, the learned Judge observed that the question as to whether the sale was binding on the interest of the plaintiffs, could not arise because the proceedings of the Revenue Officer showed that the rights of the plaintiffs as members of the joint family were not intended to be affected by the order which was passed in those proceedings.

3. On April 28, 1954, the plaintiffs filed the present suit for possession contending that Ramji had no right to alienate the entire property without legal necessity, that the order of pre-emption passed by the Revenue Officer bound the share of Ramji alone and that the defendant had no right to retain possession of the property to the extent of the shares of the plaintiffs. The; defence to the suit was that the question as regards legal necessity could not arise in the present proceedings as the defendant had exercised a statutory right of preemption, that alternatively, the lands did not belong to the joint family and, lastly, that the Civil Court had no jurisdiction to entertain the suit by reason of the provisions contained in Section 105 of the Central Provinces Tenancy Act, 1920. The learned trial Judge held that the sale was not supported by legal necessity and that the two lands were joint family properties in the hands of Ramji. He, however, dismissed the suit on the ground that the Civil Court-had no jurisdiction to entertain the suit. The learned Additional District Judge, Wardha, who heard the plaintiffs' appeal has confirmed the findings of the trial Court. Being aggrieved by the decree, the plaintiffs have filed this Second Appeal.

4. The principal question which arises in this appeal is whether the jurisdiction of the Civil Court to entertain the present suit is barred by reason of the provisions contained in Section 105, particularly in Clause (a), of the C.P. Tenancy Act, 1920, (which will hereafter be referred to as 'the Act'). Section 105 of the Act reads thus:

Except as otherwise provided in this Act, no Civil Court shall entertain any suit instituted, or application made, to obtain a decision or order on any matter which the State Government, a Revenue or Settlement Officer, is, by this Act, empowered to determine, decide or dispose of; and, in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters:

(a) any matter as to the enforcement of the right of pre-emption under Section 6-A or Section 12-A except under Sub-section (15) of Section 6-A or Sub-section (15) of Section 12-A;...

The question is whether by the present suit the plaintiffs are seeking to obtain decision on any matter which the State Government, a Revenue Officer or Settlement Officer, is empowered to determine, decide or dispose of under the Act. The relief which the plaintiffs claim in the suit is that the order of pre-emption is not binding on their share and that, therefore, the defendant is not entitled to enforce the order against their interest. This relief has been asked for on the ground that the sale by Ramji is not supported by legal necessity. The question as to whether a sale is justified by legal necessity or not and the question whether an order passed against the manager of a joint Hindu family would bind the interest of other coparceners are not questions which are required to be determined, decided or disposed of by the State Government, a Revenue Officer or a Settlement Officer under the Act. My attention has been drawn by both the learned counsels to several provisions of the Act, but I find no provision therein by which the jurisdiction to decide a question as regards the powers of Manager of a joint Hindu family, has been, conferred upon either the State Government, the Revenue Officer or the Settlement Officer.

6. A slight difficulty is, however, caused by the somewhat peculiar language used in Clause (a) of Section 105 of the Act. That Clause, which is without prejudice to the generality of the preceding provision, provides, in so far as is material, that no Civil Court shall exercise jurisdiction over 'any matter as to the enforcement of the right of pre-emption under Section 12-A....' Mr. Mangalmurti, who appears on behalf of the respondent, contends that the language of Clause (a) is wide enough to cover every kind of challenge made to the order passed by the Revenue Officer and that once a Revenue Officer passes an order upholding the right of pre-emption, that order must be given its full effect according to its apparent tenor, regardless of whether the intended sale was in excess of the powers of the vendor. Now, turning to the wording of Clause (a), it is clear that what LS taken out from the jurisdiction of the Civil Courts is a matter with regard to the enforcement of the right of pre-emption under Section 12-A. Section 12-A consists of as many as seventeen Sub-sections and many of those Sub-sections, in turn, consist of Sub-clauses. The several provisions which are contained in the various Sub-sections and Clauses of Section 12-A relate to matters concerning the enforcement of the right of pre-emption. For example, Sub-section (1) of Section 12-A requires a tenant to give notice of an intended sale to his landlord stating the particulars of the sale and the amount of the consideration; Sub-section (2) requires the landlord to give a written notice to the tenant of his intention to exercise his right of pre-emption; Sub-section (5) provides that after giving a reply to the notice of the tenant, the landlord may apply to a Revenue Officer for enforcing his right of pre-emption; Sub-section (11) provides for the steps which the Revenue Officer is required to take in order to compel the tenant to execute the sale-deed in favour of the landlord; Sub-section (12) confers upon the Revenue Officer the power to fix the value of the right in respect of which the pre-emption is sought; Sub-section (17) finally, deals with the payment of the price by the landlord to the tenant. It would be clear from the minute provisions contained in Section 12-A that there are a large number of matters on which intervention of the Revenue Officer becomes necessary before a right of pre-emption could be enforced. The provision contained in Section 105, Clause (a) that no Civil Court shall exercise jurisdiction over 'any matter as to the enforcement of the right of pre-emption under Section 12-A' must necessarily be construed by reference to the matters which have been provided for in minute details in Section 12-A of the Act. It is well-settled that exclusion of the jurisdiction of Civil Courts must not be readily inferred and that statutes ousting the jurisdiction of Civil Courts must be construed strictly. As there is no provision in the Tenancy Act by which any of the three authorities is empowered to deal with a contention as regards the powers of a manager of a joint family to bind the other coparceners by an intended sale, I am unable to hold that the jurisdiction of the Civil Courts to determine that question is ousted under Section 105, Clause (a) of the Act.

7. The argument of the learned counsel, if accepted, must mean that the Legislature intended to confer upon the Revenue Officers exclusive jurisdiction to decide questions relating, for example, to the rights of the parties under their personal law. The proceedings of Revenue Officers are in nature summary and language much more strong and different than is used in Clause (a) of Section 105 would be required to justify the view that summary proceedings are intended to be treated as final and conclusive in the decision of complicated questions of fact and law. There is, indeed, some indication in the Act itself that the jurisdiction of the Civil Courts was not intended to be ousted in all matters relating to the enforcement of the right of pre-emption. Sub-section (75) of Section 12-A, for example, provides that if any right in a holding is sold by the tenant, the landlord would be entitled to institute a suit for the determination of the true price if the consideration mentioned in the sale-deed does not represent the real price. It is clear from this provision that if there was a dispute over a comparatively simple question as the one relating to true consideration, the Legislature thought it proper that the question should be decided not by Revenue Officers but by a Civil Court. If that be the scheme of Section 12-A of the Act, it would be difficult to conceive that complicated questions of personal law governing the parties were intended to be left to the final judgment of Revenue Officers.

8. In support of his argument, Mr. Mangalmurti has relied upon certain decisions, four of which are of the Judicial Commissioners' Court, Nagpur, and are reported in Balaji Koshti v. Rambilas Faikira v. Ramkisan (1924) 21 N.L.R. 25, Lalsing v. Pandit Waman Rao (1925) 22 N.L.R. 114. and Nilkanth v. Fakira (1930) 27 N.L.R. 265. In the first of these four cases, the plaintiff's mother, as a guardian, had entered into an agreement to sell an occupancy field to a third party. She gave notice to the lambardar of her intention to sell the property whereupon the lambardar claimed the right of preemption. In the revenue proceedings, the question of valuation alone was contested and after it was held that the lambardar was entitled to pre-empt the sale, the plaintiff brought a suit for possession of the property on the ground that the sale was not supported by legal necessity and would, therefore, not bind him. It was held that the statutory right of pre-emption was different from an ordinary right of transfer and the right having been duly exercised, the jurisdiction of the Civil Court to entertain the suit was excluded by Section 105, Clause (a) of the Tenancy Act of 1920, The learned Judicial Commissioner observes in his judgment that what he was dealing with was merely a case of an intended sale and that questions as regards legal necessity were wholly out of place in such cases. On the question of jurisdiction, all that is stated in the judgment is (pp. 250-251):.In the present case I am of opinion that the revenue Court had an exclusive jurisdiction, having regard to the comprehensive language contained in the preamble to Section 105 and to Clause (a) thereof... What the law in this connection lays down in the Tenancy Act is that the malguzar, as the ultimate or superior owner of the village,, has, in any case of intended transfer, a statutory right of pre-emption. That right has been duly exercised in the present case, and having regard to Section 105(a), Tenancy Act, it seems to me that the jurisdiction of the civil Court is necessarily excluded.

8. I am unable to read this decision as an authority for the proposition that a Civil Court has no jurisdiction to determine the scope of the powers of a manager of a joint family to bind the interest of the coparceners. It is clear from the observations contained in the judgment that the decision partly proceeds on the assumption that an intended sale which is pre-empted cannot be challenged on the ground of want of legal necessity and, secondly, that no reasons at all have been stated as to why a question as regards legal necessity is not within the competence of the Civil Court.

9. The decision in Fakira v. Ramkisan largely turned upon its own facts. In that case one Ramchand was an occupancy tenant of a field in which there were certain mango trees which formed a part and parcel of the holding. Ramchand died leaving behind a son Babaji, a widow Rukminibai and a daughter Kesharbai, Though the holding together with the trees devolved on Babaji, the holding came to be recorded not in the name of Babaji but in the name of Rukhmini. Babaji renounced the world, whereupon his son Ramkisan, the plaintiff, claimed the succession to the holding. In May 1917, Rukhmini for herself and on behalf of her minor daughter Kesharbai executed two deeds in favour of the defendants, one of which was in the nature of a surrender in respect of the land and the other was a sale-deed in respect of the trees standing on the land. The defendants took possession of the property covered by the two deeds, and in July 1918, Ramkisan, the plaintiff, filed' an application under Sections 36 and 47 of the Central Provinces Tenancy Act, 1898, for obtaining possession of the holding on the ground that the surrender was in contravention of the provisions of Section 46 and that some of the persons in whose favour the surrender was made were not the sole landlords but were only fractional co-sharers of the village. The Sub-Divisional Officer who dealt with the application, held in favour of Ramkisan and directed that he should be put in possession of the holding. Ramkisan, thereafter, executed a lease in respect of the mango crop, but the lessee was obstructed by the defendants. Ramkisan had, therefore, to file a suit for an injunction restraining the defendants from disturbing him in the enjoyment of the mango trees standing on the lands. The defendants contended that the Civil Court had no jurisdiction to grant the relief because the transfer of the trees by Rukhmini was valid except for the prohibition contained in Section 47 and could, therefore, be avoided only in the manner and to the extent provided for by Sections 47 and 48 of the Tenancy Act, 1898. The learned Additional Judicial Commissioner held that the transaction of surrender effected by the widow was a mere cloak for contravening the policy of the Tenancy Act and that, therefore, it conferred no rights on the defendants. After recording the finding that the defendants did not get a valid title to the properties surrendered in their favour by the widow, the learned Additional Judicial Commissioner observed that the grievance, if any, which the defendants had, was already made before the Revenue Officer who had held against the defendants. The learned Judicial Commissioner thereafter proceeded to state that quite apart from these considerations, the jurisdiction of the Civil Court to entertain the plea of the defendants was barred by reason of Section 95 of the C.P. Tenancy Act, 1898. In the first place, this decision is not under Section 105 of the Tenancy Act, 1920, but is under Section 95 of the Act of 1898. The determination of the question as to whether a Civil Court has jurisdiction to entertain a suit must depend on the terms of the particular statute which is under consideration. Secondly, the contention which the defendants wanted to raise in that case was a contention which was exclusively within the jurisdiction of the Revenue Court to decide and that contention indeed was raised by the defendants before the Revenue Court, and was rejected by it. Lastly, the observations made by the learned Additional Judicial. Commissioner on the scope of Section 95 of the Tenancy Act, 1898, were not necessary for the decision of that case, because it was expressly held in that case that on merits the defendants had no right to the trees at all.

9. In the decision reported in Lalsingh v. Pandit Woman Rao, the main question which was raised was whether the Revenue Officer who was empowered by Section 41(8) of the Act of 1898 to fix the time for depositing costs of ejectment had also got the power to extend that time. It was held that a Court, which has the power to fix a particular time for making a deposit, must, by necessary implication, have the power to extend the time and that the power of a Court of exclusive jurisdiction to extend the time cannot be questioned in a Civil Court. I am unable to see how this decision can have any application to the case before me.

10. The last decision on which Mr. Mangalmurti relies is Nilkanth v. Fakira, in which it was held that a Civil Court has no jurisdiction under Section 105, Clauses (g) and (h) of the C.P. Tenancy Act, 1920, to question or revise an order of a Settlement Officer relating to service tenants. It is clear from Clauses. (g) and (h) that Civil Courts have no jurisdiction over matters relating to the declaration of a land as a village service land or the ejectment of a village servant from a village service land. In that case, the Settlement Officer had held in proceedings which were properly constituted that a certain person was a service tenant. As the decision on the question whether the person was or was not a service tenant, was a decision, which was exclusively within the jurisdiction of the Revenue Courts under Section 105, Clauses. (g) and (h), it was plain that the order of the Revenue Court could not be challenged in a Civil Court. In the case before me, the plaintiffs do not challenge the order of the Revenue Officer by which it was held that the defendant was entitled to enforce his right of pre-emption with regard to the intended sale by Ramji. What the plaintiffs are seeking to establish is that though the order must bind Ramji, the interests of the plaintiffs who are Ramji's coparceners cannot be affected, by an order of pre-emption passed against Ramji.

11. Mr. Mangalmurti has also drawn my attention to a decision of the Privy Council reported in Sardar Mohammad Nawaz Khan v. Bhagta Nand I.L.R. (1938) 19 Lah 514 The decision has no bearing on the question which arises before me and, if anything, certain observations made therein would rather help the plaintiffs. In a suit for declaration that the plaintiff was not liable to pay Haq buha (door-tax), which was a village cess, it was held that the suit fell within Section 77(3) of the Punjab Tenancy Act which provided that suits for sums payable on account of village-cresses or village expenses could be instituted in. the Revenue Court and in no other Court. It was held by the Privy Council that the suit by which a plaintiff claimed that he was not liable to pay the village cess, clearly fell within Section 77(3) and that, therefore, the Civil Court had no jurisdiction to entertain the suit. While holding that the suit was not maintainable, Sir George Rankin, who delivered the judgment of the Judicial Committee, has made the following observations (p. 521):.The purpose of the prohibition in Sub-section (3) is to prevent claims which are intended to be decided by the Revenue court being in effect carried before the civil Court by altering the form in which the matter is raised. As many matters are brought under Sub-section (3) of Section 77 it is important to notice that the mere fact that the 'dispute or matter' is one which must arise incidentally in a suit of the character mentioned in such a Clause as (j) is not sufficient to exclude it from the jurisdiction of the civil Court, For example, the ordinary suit in the civil Court for declaration of title to immoveable property would not become incompetent merely by reason that one consequence of the plaintiff getting a decree would be that as a proprietor he could not be charged with village cess. In such a title suit the 'dispute or matter' of the action would not be the question of the plaintiff's liability to village cess. Of the present case it is clear that the matter in dispute is the very thing with respect to which a suit of the class described in (j) would be concerned as its subject-matter.

12. These observations would apply aptly to the case before me because the question as to whether the sale by Ramji was supported by legal necessity or not, was a question which, had it been raised, the Revenue Officer may have been required to decide incidentally, but the determination of such an incidental question could not give it finality.

13. Mr. Mangalmurti then urges that in, any event the present suit is barred by constructive res judicata because in the earlier suit of 1946 the plaintiffs had omitted to challenge the sale on the ground of want of legal necessity, though they might and ought to have done so. In the first place, neither the plaint nor the written statement in the earlier suit has been placed on the record of the present suit. Secondly, the plea that the suit is barred by constructive res judicata was not raised in the trial Court and there is, therefore, no issue on that question. Issue No. 4 which is the only issue on the question of res judicata relates to the question as to whether the price of the field was properly fixed and whether the question as regards the price could be re-agitated in the light of the findings recorded in the suit of 1946. Lastly, it is clear from the judgment of Kaushalendra Rao J. that the learned Judge was not inclined to deal with the question of legal necessity, though it was raised before him because he took the view that the suit for injunction was liable to fail as the defendant had already obtained possession and a mere suit for declaration, where consequential relief could be asked but was not asked, is not maintainable. An argument that the sale was not justified by legal necessity was expressly made before the learned Judge, who took the view that the order passed by the Financial Commissioner did not affect the plaintiffs' rights, if any, in the joint family property. In these circumstances, it would be difficult to hold that the present suit is barred by constructive res judicata.

14. In the result, the suit must be held to be within the cognizance of the Civil Court and the decree passed by the learned Additional District Judge shall have to be set aside. The learned Judge has held that the defendant, on whom the burden lay, had failed to establish that the sale by Ramji was justified by legal necessity. In view of this finding which is binding on me in Second. Appeal, the plaintiffs' suit shall have to be decreed. It shall be declared that the order of pre-emption passed by the Revenue Court will not bind the interests of the plaintiffs in the two fields in which they admittedly have a two-third share. Plaintiff's will be entitled to be in joint possession of the fields along with the defendant. There will be an inquiry into mesne profits under Order XX, Rule 12(1)(c) of the Civil Procedure Code. Defendant will be liable to pay mesne profits to the plaintiffs in respect of their two-third share, from the date of suit until the date the plaintiffs are put in joint possession.

15. There will be no order as to costs.


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