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Chennaveeriah and ors. Vs. Mysore Revenue Appellate Tribunal, Bangalore - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 2525 to 2534 and 2542 to 2549 of 1968
Judge
Reported inAIR1971Kant66; AIR1971Mys66; (1970)2MysLJ425
ActsTenancy Law; Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 - Sections 4, 5, 6, 9, 10, 17 and 28; Evidence Act, 1872 - Sections 115
AppellantChennaveeriah and ors.
RespondentMysore Revenue Appellate Tribunal, Bangalore
Appellant AdvocateD.N. Nagaraj Rao and ;H.V. Narayana Rao, Advs.
Respondent AdvocateChinnappa K. Kambeyanda, ;S. Ramaswamy Iyengar, ;S. Shivaswamy and ;D. Chaluvaraj, Advs.
Disposition Petition dismissed
Excerpt:
.....or benefits, he necessarily gives up the other, and that when a party entitled to a benefit and subject to a detriment under one and the same order of a court or authority, takes the benefit of the order, he is precluded from refusing to take detriment as well. *it seems to us that a statutory right of appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under the decree and there is no justification for extending the rule in tinkler's case, (1849) 154 er 1176 to cases like the present......the inamdar without questioning the correctness of an award, he must be deemed to have waived his right to question the correctness of the orders of registration on the basis of which, compensation has necessarily to be and is in fact calculated. 8. mr. nagaraja rao has added the further contention or clarification of the position by stating that although at the time of the presentation of the appeals, the inamdar may be described as a party aggrieved by an order made under section 10 by the deputy commissioner within the meaning of sec-tion 28 of the act which confers a right of appeal, he ceases to be an aggrieved party when he receives compensation on the basis of the said order and secondly, that the question of election or choice between two inconsistent rights arises, or more.....
Judgment:

Narayana Pai, J.

1. These eighteen writ petitions are heard together because they are directed against the same order of a Full Bench of the Mysore Revenue Appellate Tribunal- The order was made in connection with several appeals pending before the Tribunal, preferred by the inamdar of an inam abolished under the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, against the orders of the Special Deputy Commissioner registering certain lands in the names of different tenants under Sections 4, 5 or 6 and rejecting the inam-dar's claim for registration thereof in his name under Section 9 of the Act.

2. During the pendency of the appeals the Deputy Commissioner made an award of compensation under Section 17 of the Act. The inamdar received compensation without preferring any appeal against the award. Thereupon, the tenants-respondents in the appeals before the Tribunal raised the objection that the appeals should no longer be proceeded with by the inamdar because by receiving the compensation he must be held to have accepted the position that the lands in question were not registrable in his name under Section 9. The basis for the argument is that under Section 17 of the Act, compensation is payable to an inamdar in respect of, among other items, landsregistered in the names of tenants under Sections 4, 5 or 6 and under Section 9 the lands, in respect of which any person is entitled to be registered under Sections 4, 5, 6, 7 or 8, cannot be registered in the name of the inamdar.

3. It appears from the order of She Full Bench that two Division Benches of the Tribunal had on prior occasions taken conflicting views on the question whether receipt of compensation in the circumstances mentioned above would disentitle the appellant-inamdar from proceeding with the appeals. The issue referred to the Full Bench as set out at the commencement of the order is:--

'Whether the receipt of compensation by an inamdar is or is not a bar for his request for registry of land under Section 9 of the Inams Abolition Act, 1954.'

Although the issue so framed obviously reads like an issue bearing upon the merits of the appeals, the discussion in the three opinions differently expressed by the three members of the Full Bench shows that the real question they were discussing or considering was the maintainability of the appeal by an inamdar after having received the compensation, and not the question of merits as formulated above.

4. The Chairman of the Tribunal after discussing the arguments and contentions of the parties, answered the Reference as follows:--

'I am of opinion that the Reference be returned with the observation as follows:--

The receipt of compensation in respect of any land, either by an inamdar or by any person entitled to receive compensation due to the inamdar will amount to acknowledgment that such land is hot registrable under Section 9 of the Act. Therefore, on payment of such compensation, the appeal, if any, filed under Section 28 against any order under Section 10 registering a tenant in respect of the same land will not be maintainable, so far as his claim to be registered under Section 9 (1) of the Act is concerned, since he has no locus standi to claim registration under Section 9 after accepting compensation under Section 17 (1) (i) or Section 17 (1) (ii).'

The Second Member concluded his opinion as follows:--

'Under these circumstances, I am definitely of the opinion that the maxim that a person cannot approbate and reprobate is not at all applicable to the facts of these cases, and the plea of the respondents that the appellant-inamdar cannot proceed with the appeals because they have received compensation subsequently, cannot be upheld.'

The third member expressed himself as follows:--

'For the foregoing reasons, my answer to the issue is: the receipt of compensation by the inamdar is not a bar for his request for registry of land under Section 9 of the Act.'

Then, there is a common order or direction made and signed by all the three members reading:--

'We direct that in accordance with the majority decision, the reference be returned with the finding that the appeals by the inamdars are maintainable though they have accepted compensation.'

5. It is in view of this last clear statement made at the end of the order and signed by all the three Members that we understand that the question principally debated and pronounced upon by the Full Bench was the question of maintainability of the appeals in the circumstances mentioned, and not the question bearing upon the merits of the dispute in appeals.

6. It is on this basis that we proceed to discuss the arguments addressed before us and we wish to make it clear that whatever opinion we may express is confined to the question of maintainability of the appeals.

7. The propositions, as formulated by Mr. Narayana Rao in support of the view of the Chairman of the Tribunal, are:--

(1) that the compensation, though in lump sum, has to be calculated in respect of different items set out in Section 17 of the Act;

(2) that Section 17 read with Section 9 makes it perfectly clear that in respect of lands which are registrable under Sections 4, 5, 6, 7 and 8, the inamdar is not entitled to registration under Section 9;

(3) that in respect of lands registrable under Section 9 the inamdar is not entitled to any compensation; and

(4) that the compensation is determined on the basis of the order for registration under Sections 4 to 9 and that once the compensation is received by the inamdar without questioning the correctness of an award, he must be deemed to have waived his right to question the correctness of the orders of registration on the basis of which, compensation has necessarily to be and is in fact calculated.

8. Mr. Nagaraja Rao has added the further contention or clarification of the position by stating that although at the time of the presentation of the appeals, the inamdar may be described as a party aggrieved by an order made under Section 10 by the Deputy Commissioner within the meaning of Sec-tion 28 of the Act which confers a right of appeal, he ceases to be an aggrieved party when he receives compensation on the basis of the said order and secondly, that the question of election or choice between two inconsistent rights arises, or more accurately arose in these cases, not at the time the appeal was presented but when the award for compensation was made and that it was at that point of time incumbent on the part of the inamdar to choose whether to continue his appeal and ask for registration in his name under Section 9 or to receive compensation and waive the right for such registration.

9. Several decisions have been cited in support of the main propositions of law, viz., that the election arises when there are two inconsistent rights or two rights the choice of one of which necessarily precludes the choice of another, that when the party entitled or bound to make an election chooses one of the rights or benefits, he necessarily gives up the other, and that when a party entitled to a benefit and subject to a detriment under one and the same order of a Court or authority, takes the benefit of the order, he is precluded from refusing to take detriment as well.

10. But the most important aspect of the matter is that the doctrine of election so formulated is in these cases sought to be applied, not in respect of any contract or act of parties but in respect of a statutory right of appeal. Upon that topic, there is a direct decision of the Supreme Court reported in Bahu Ram v. Baij Nath Singh, AIR 1961 SC 1327. That was a case in which, during the pendency of an appeal arising out of a suit for pre-emption the appellant received the pre-emption money deposited by the other side and the said conduct was pleaded as amounting to his giving up or actually forfeiting the right of appeal. The objection was rejected by the Supreme Court. In doing so, the following propositions were laid down:--

'Upon the principles underlying the aforesaid decisions a person who takes benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety. How can it be said that a vendee in a pre-emption suit against whom a decree is passed takes any 'benefit' thereunder? No doubt, he has a right to be paid the pre-emption price before the pre-emption decree becomes effective but the price of pre-emption cannot be characterised as a benefit under the decree. It is only in the nature of compensation to the vendee for the loss of his property. ***** it maybe found difficult to apply this doctrine of election to cases where the only right in existence is that determined by the judgment; and the only conflicting right is the statutory right to seek to set aside or amend that judgment. ****** it seems to us that a statutory right of appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under the decree and there is no justification for extending the rule in Tinkler's case, (1849) 154 ER 1176 to cases like the present. In our judgment, it must be limited only to those cases where a person has elected to take a benefit otherwise than on the merits of the claim in the lis under an order to which benefit he could not have been entitled except for the order. Here the appellant, by withdrawing the pre-emption price, has not taken a benefit de hors the merits. Besides, this is not a case where restitution is impossible or inequitable.'

11. Now, the right of appeal is conferred by Section 28 of the Act which says:

'Any person aggrieved by a decision of the Deputy Commissioner under Section 10 or 11 may, within thirty days from the date of the decision or such further time as the prescribed authority may for sufficient cause allow, appeal to the prescribed authority and its decision shall be final.'

It is not disputed that at the time the inamdars had presented these appeals, they were and could rightly be described as a 'party aggrieved' by an order made under Section 10 of the Act. The right of appeal is not merely to present a memorandum of appeal but to have it heard and disposed of on merits by the appellate authority. The right cannot be regarded to have come to an end before such a disposal. There is nothing in Section 28 or in other sections of the Act which limit that right or specify any conditions subject to which that right could be exercised or specify the circumstances in which the said right can be said to have come to an end before the final disposal of an appeal on merits Prima facie, therefore, that right can not be taken away by other considerations which have no relevance to the statutory provisions.

12. The fact that compensation is based upon which of the lands are registrable under Section 9 and which under Sections 4 to 8 does not necessarily mean that the right of appeal separately conferred against orders of registration is lost or affected prejudicially by whatever is done with respect to an order or an award of compensation. An appeal against an award is provided separatelyby Section 31. That right is not controlled by the right under Section 28; nor is the right under Section 28 controlled by that under Section 31. The registration, according to relevant sections, is to have effect from the date of vesting of the inam. Registration may be, and very often is, a matter of dispute between an inamdar on the one hand and tenants on the other, and that controversy cannot be regarded as having been finally settled until the appeal in regard thereto is finally disposed of by the Tribunal or until any further Writ Petition or an application under Article 227 of the Constitution is disposed of by the High Court.

Likewise, an award of compensation does not become final if appealed from, until an appeal under Section 31 is disposed of by the High Court. Because compensation depends upon the details of registration, any variation in regard to details of registration must necessarily get reflected in the compensation. The amount of compensation may be enhanced by the High Court or reduced upon appeal. Situation is not impossible where compensation, calculated according to the final order of the High Court adjusted according to variations if any in the orders of registration, may be either the same as, if not slightly more than, the compensation originally granted on the basis of the original details of registration.

The adjustment can never be regard' ed as final until finality is reached in respect of both the topics as stated. The relative dates of determination of the question of registration and the question of compensation may be different in different cases and may be different in the case of different tenants concerned in the same inam. Such a position and the necessity of a revision or review of an original order of compensation as a result of subsequent events or orders is contemplated and provided for in Section 20-A introduced into the principal Act by the Mysore Inams Abolition Laws (Amendment) Act. 1969, under which power is expressly given to the Deputy Commissioner to revise either suo motu (or on an application) the award for compensation, if with reference to any new and important matter which has since come to his notice or on account of some mistake or error apparent on the face of the record or for any other sufficient reason he considers corrections or revision necessary. Though the language employed is normal language descriptive of the power of re view, there can be no doubt that the power would be available if revision becomes necessary by reason of any change in the order as to registration under Sections 4 to 9.

13. As the order regarding registration is different from an order or award of compensation there is no scope for invoking the principle that a person taking benefit of an order should also take a detriment of it. Two things are differently determined in separate proceedings in accordance with separate provisions of the statute. Secondly, the question here is one which relates to the merits of the dispute, and as point ed out by the Supreme Court, the question of election in the case of orders of Court ordinarily arises only in cases of orders which have nothing to do with the merits of the case. So far as the merits of the case are concerned, the principle applicable is that the right of appeal is a statutory right and cannot be taken away or cannot be regarded as having been lost on mere equitable or other than statutory considerations.

14. It is no doubt true that subsequent events, i. e., events subsequent to the order appealed from, may arm respondents with material or argument sufficient to show that the appellants case on merits is different from what it was at the time the appeals were presented or that the subsequent events are sufficient to deprive the appellants of the rights of retaining the fruits of the order appealed from either wholly or to a specified extent. That is a matter for investigation upon facts and merits of the appeal.

15. So far as the maintainability of the appeals is concerned, we have no hesitation in holding that the majority opinion of the Full Bench of the Mysore Revenue Appellate Tribunal that the appeals did not become unsustainable and that the appellants did not become disentitled from proceedings with the appeals is correct and ought not to be interfered with.

16. All the Writ Petitions are therefore dismissed.


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