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Sakamma Vs. Chikkannagowda - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 412 of 1949-50
Judge
Reported inAIR1954Kant5; AIR1954Mys5
ActsMysore Village Offices Act, 1908 - Sections 5, 8(2), 9, 10, 11, 11(1), 16 and 22; Code of Civil Procedure (CPC), 1908 - Sections 9; Village Offices Regulation, 1908 - Sections 8, 9, 10 and 16
AppellantSakamma
RespondentChikkannagowda
Appellant AdvocateD. Venkatesaiah, Adv.
Respondent AdvocateR. Anantharaman and ;S. Nabhirajaiah, Advs.
Excerpt:
.....breathes life into previous grant, as per existing provisions of act. - the term 'emoluments of village offices' clearly includes not only 'emoluments assigned to the holder of a village office' but also other emoluments which are entitled to be enjoyed by other members of a hakdar's family. it being thus not concluded in the emoluments assigned to the holder of a, village office, there is nothing in section 5 which comes in the way of this property being enjoyed, transferred or partitioned between the different members of the hakdar's family. what is, however, contended is that the persons entitled to enjoy the emoluments of a pateli office not assigned to the holder of the office are only persons of his family such as his sons or brothers. to understand clearly what suits are taken..........for, or whether defendant 1 is entitled to be in possession of that property as the holder of the village office, and the suit in a civil court is barred. section 5, mysore village offices act, 1908, is as follows:'the emoluments of village offices, whether such offices be or be not hereditary, shall not be liable to be transferred, partitioned, or encumbered in any manner whatsoever, and it shall not be lawful for any court to attach or sell such emoluments or any portion thereof.provided that in the case of lands which are not assigned as emoluments to the holder of a village office under rules framed under section 22, nothing contained in this section shall be deemed to affect transfers, partitions or encumbrances, as between different members of a hakdar's family.'a careful reading.....
Judgment:

1. The facts of the case under consideration in this appeal are not disputed. The correctness of the findings of the Courts below on questions of fact is not challenged. Both the Courts have held that the plaintiff was the daughter of the deceased uncle of the defendant-respondent, who is the present holder of the Pateli Office of Chilaganahalli, a village in Koratagere Taluk. The property in dispute was in possession of defendant's uncle Kallurappa and after his death it has been in the possession of his daughter the plaintiff and her son for over 15 years by virtue of a gift made by her father under a registered deed, dated 22-1-1935. The plaintiff filed the suit under appeal for a permanent, injunction restraining defendant 1 the Patel and defendant 2 his son, from interfering with her peaceful possession. Her son who is her legal representative is the appellant. It was contended by the defendants that the property is a pateli-inam land, that it belongs to defendant 1 and that the suit is not cognizable by a civil Court.

2. The point for consideration is whether the plaintiff and her son the appellant after her death have been in lawful possession of the property and are entitled to the injunction prayed for, or whether defendant 1 is entitled to be in possession of that property as the holder of the village office, and the suit in a civil Court is barred. Section 5, Mysore Village Offices Act, 1908, is as follows:

'The emoluments of village offices, whether such offices be or be not hereditary, shall not be liable to be transferred, partitioned, or encumbered in any manner whatsoever, and it shall not be lawful for any Court to attach or sell such emoluments or any portion thereof.

Provided that in the case of lands which are not assigned as emoluments to the holder of a village office under rules framed under Section 22, nothing contained in this section shall be deemed to affect transfers, partitions or encumbrances, as between different members of a hakdar's family.'

A careful reading of the section makes it clear that the section makes a distinction between emoluments assigned to the holder of a village office and other emoluments attached to the village office. The first portion of Section 5 states that emoluments of a village office are inalienable, impartible and are not liable to attachment. The term 'emoluments of village offices' clearly includes not only 'emoluments assigned to the holder of a village office' but also other emoluments which are entitled to be enjoyed by other members of a hakdar's family. In this case, it has not been shown that the suit land forms part of the emoluments assigned to the holder of the pateli office. It is urged that it is stated in the Revenue Manual in para. 68 (1), 'Potgi allowance is a full and sufficient remuneration for services rendered by village officers; the enjoyment of other perquisites of whatever kind ceases' and that it is thus clear that the land now in dispute is merely a service inam land which has not been assigned as an emolument to the holder of the village office. Anyway, there is clear evidence that it was not even formerly assigned to the holder of the office as the father of plaintiff who was the uncle of the holder was in possession of the property. It would not have been in the possession of plaintiff's father who was not a patel if it was intended to be an emolument assigned to the holder of the pateli office. It being thus not concluded in the emoluments assigned to the holder of a, village office, there is nothing in Section 5 which comes in the way of this property being enjoyed, transferred or partitioned between the different members of the hakdar's family. What is, however, contended is that the persons entitled to enjoy the emoluments of a pateli office not assigned to the holder of the office are only persons of his family such as his sons or brothers. This is wrong as the section itself makes a distinction between the holder of the village office and the other hakdars. It is the members of the hakdar's family that are entitled to be in possession of the emoluments which are not assigned to the holder and not merely members of the holder's family. Section 8(2) which ideals with succession to village offices states:

'The succession in the case of a permanent vacancy (a) shall be regulated by the ordinary provisions of the personal law applicable to the last holder, provided that it shall devolve on a single heir and that where there are more persons than one who would, under the ordinary provisions of the said law, be entitled to succeed to the last holder of the office, preference shall be given to the eldest member of the eldest branch among those persons, and (b) failing these shall devolve on one of the duly recognised hakdars in the order of their importance.'

Section 8(2) makes it clear that failing heirs of the last male holder, other hakdars in the order of their importance are entitled to succeed to village office. Members of a hakdar's family are, therefore, not merely members of the family of the holder and the word hakdar has a wider meaning than the word holder. Members of the different branches of the family of the original holder of the village office from amongst whom village officers are chosen are members of the hakdar's family.

3. It is, however, Section 16, Village Offices Act that takes away the jurisdiction of civil Courts to some extent, and it runs as follows:

'No Civil Court shall exercise jurisdiction in respect of any claim to succeed to or to the possession of, any village office, or the emoluments thereof, or any question as to the rate or amount of such emoluments; but, when the claim is as between different members of a hakdar's family of patel or shanbhog in respect of land entered in the Government records or otherwise shown as service inam land connected with the office of patel or shanbhog, such claim may be entertained and adjudicated upon by a Civil Court.'

It is clear the section bars civil Courts from taking cognizance of suits in which any claim to succeed to or to the possession of, any village office or the emoluments thereof is laid. What is, however, more significant is the fact that even a claim as in this case, as between different members of a hakdar's family of patel or shanbhog in respect of service inam land is entertainable by a civil Court. The nature of the suit also comes under consideration when it was to be held that a suit is barred. It must be a suit in respect of a claim to succeed to or to the possession of any village office or the emoluments thereof. To understand clearly what suits are taken away from the cognizance of civil Courts it would be useful to examine what provision is made for the trial of those claims. When Section 16 takes away the jurisdiction in respect of certain claims, it confers jurisdiction on revenue authorities to decide these claims, and this is laid down in Sections 9, 10 and 11 of the Act. Section 11(1) runs thus:

'Any person may sue before the Deputy Commissioner or Assistant Commissioner for any village office in an unalienated or alienated village or for recovery of the emoluments of any such office, on the ground that he is entitled under Sections 8, 9 or 10 of this Regulation, as the case may be to hold such office and enjoy such emoluments; or being a minor, may sue before the Deputy Commissioner or Assistant Commissioner to be registered as successor of the last holder of any such office.'

It is suits of this nature that are barred from being tried in civil Courts. I may here refer to the decision in -- '29 Mys C C R 316 (A)' which says:

'Section 16 of the Village Offices Regulation 4 of 1308 only bars the jurisdiction of the civil Courts where the claim is to the possession of the emolument of a village office as such, that is to say where the claim is based on a right to be the office bearer.

Where the claim to the office of patel has already been decided by the revenue authorities, as also the fact that the land in dispute is part of the emoluments of the pateli office, and the land has been transferred to plaintiff's possession by the revenue authorities from the possession of the defendant, a suit subsequently Instituted to recover possession of the land on the ground that defendant's possession is unlawful, does not involve any question as to the title to a village office or as to the possession of emoluments as such; and is therefore within the cognizance of the civil Courts.'

This suit does not involve the determination of any claim to succeed to or to the possession of any village office or the emoluments thereof. There is nothing in Section 16 which takes away the right of the civil Courts to try such suits.

4. Moreover no question of title arises in cases in suits of this kind where permanent injunction is sought for on the ground of plaintiff having been in lawful possession. As regards the right of a person in a case of this kind for a permanent injunction on the basis of the person having been in lawful possession of the property, though it may be found that that person has not got perfect title, I may refer to the decision in -- 'Sundar v. Parbati', 12 All 51 (B), which is a decision of their Lordships of the Privy Council, wherein the observation of the Chief Justice, against whose judgment the appeal had been filed, viz. that 'possession is good title against all the world except the person who can, show better title', has been cited with approval. Dealing with the rights of the persons to whom the property originally belonged, it was observed by their Lordships as under:

'Their possession was lawfully attained, in this sense, that it was not procured by force or fraud, but peaceably, no one interested opposing. In these circumstances, it does not admit of doubt that they are entitled to maintain their possession against all comers except the heirs of Premsukh or of Baldeo Sahai one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title.'

This decision has been followed in -- 'Gouribala Devi v. Probhas Chandra' : AIR1927Cal931 . It is also useful to refer to the following passage reported in -- '5 Mys C C B 19 at p. 22 (D):

'As osberved, however, by Pollock and Wright in their essay on possession in the Common Law, page 22, 'as against a mere wrong doer possession is conclusive proof of right to possess. Not only is existing possession protected against interference at the hands of a mere intruder, but in an action for wrong to the possession the intruder cannot be heard to say that any third person, to whose title he is himself a stranger, has a better title than the actual possessor:' & again at page 19 -- 'possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owner's title. Hence it 'is itself a kind of title'.'

Vide also -- 'Ismail Ariff v. Mahomed Ghous', 20 Cal 834 (PC) (E). The above dictum is followed with approval in -- 'Dodda Venkatappa v. Nagari', 11 Mys LJ 333 (F).

5. It has not been shown in this case that the defendant-respondent has any right to be in possession or enjoyment of the land in dispute. He has not shown that he is the heir of his divided uncle Kallurappa. If, for any reason, his married daughter the plaintiff cannot be said to be a member of that family, it has to be stated that she was entitled to an injunction as prayed for by her. It may be stated at this stage that she is now dead, and her son is brought on record as her legal representative and he, even apart from the gift to his mother, is entitled to the suit property as the heir of his maternal grandfather Kallurappa.

6. In the result, the judgments and decrees of both the Courts below are set aside, and there will be a decree as prayed for in the plaint. The defendants will pay the costs of the plaintiff throughout.

7. Decree set aside.


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