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Annaji Vasudev Dongarkar and ors. Vs. Venkatesh Ramchandra Deshpande and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKarnataka High Court
Decided On
Case NumberRegular Appeal (B) No. 346 of 1956
Judge
Reported inAIR1967Kant111; AIR1967Mys111; (1966)1MysLJ77
ActsTenancy Law; Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 - Sections 3, 4(1), 7 and 11; Code of Civil Procedure (CPC), 1908 - Sections 9; Bombay Land Revenue Code - Sections 3(1), 203 and 230; Revenue Jurisdiction Act - Sections 4; Madras Local Boards Act, 1920; Constitution of India - Article 227
AppellantAnnaji Vasudev Dongarkar and ors.
RespondentVenkatesh Ramchandra Deshpande and anr.
Appellant AdvocateG.D. Shirgurkar, Adv.
Respondent AdvocateS.C. Javali, Adv.
Excerpt:
.....of them; 60 was also enjoyed by the defendants' family; 17. section 4 (1) of the act provides that watan lands resumed under the provisions of the act, with the reservation of public roads, lanes, paths, rivars, streams, lakes, tanks, water pourses, unbuilt village sites and the like, shall be re-granted to the holder of the watan to which they appertain, on payment of the occupancy price equal to twelve times the amount of the full assessment on such lands, within five years from the date of the coming into force of the act. the meaning of section 203 of the bombay land revenue code is that if an order is made by an officer whether the order is one made under the bombay land revenue code or whether under any other law for the time being in force, an appeal from that order lies to the..........brought a suit praying for a declaration that they were entitled to obtain re-grant of the suit lands and for injunction restraining the defendants from recovering rents from the tenants of those lands and exercising any acts of ownership or management in respect of those lands adversely to plaintiffs. having failed in the suit the plaintiffs have come up in appeal.3. the following facts are undisputed between the parties :4. the defendants are the watandars of the family of kamatanurkar deshpande. the suit lands bearing r. s. nos. 334/1 and 335 in karoshi village, chikodi taluka, belgaum district and certain other lands were paragana watan lands. the suit lands were granted by the ancestors of the defendants to one narasimhabhat prior to the year 1827. the last male holder in.....
Judgment:

Chandrashekhar, J.

1. The question that arises for determination in this appeal is whether civil Courts have jurisdiction to decide who is entitled to get re-grant of the lands resumed to the Government under the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, (hereinafter referred to as the 'Watan Abolition Act').

2. The plaintiffs brought a suit praying for a declaration that they were entitled to obtain re-grant of the suit lands and for injunction restraining the defendants from recovering rents from the tenants of those lands and exercising any acts of ownership or management in respect of those lands adversely to plaintiffs. Having failed in the suit the plaintiffs have come up in appeal.

3. The following facts are undisputed between the parties :

4. The defendants are the Watandars of the family of Kamatanurkar Deshpande. The suit lands bearing R. S. Nos. 334/1 and 335 in Karoshi village, Chikodi Taluka, Belgaum District and certain other lands were Paragana Watan lands. The suit lands were granted by the ancestors of the defendants to one Narasimhabhat prior to the year 1827. The last male holder in the family of Narasimhabhat was one Shankar Gopal who died on 21-4-1947. He had no sons ana his only daughter, Banubai alias Rukmini Bai, survived him. The plaintiffs are the sons of Banu Bai.

5. The suit lands have all along been in the actual possession of tenants. In the Record of Rights the suit lands stood in the name of Shankar Gopal. After his death, the defendants made an application to the revenue authorities praying that the suit lands be entered in their names in place of that of deceased Shankar Gopal in the Record of Rights. Their application was opposed by the plaintiffs and after contest the Extra Avval Karkoon entered the Defendants' names in the Record of Rights against the suit lands, by his order dated 12-7-1951. The plaintiffs went up in appeal to the Prant Officer against the said mutation of parties. But the Prant Officer dismissed their appeal by his order dated 26-11-1951.

6. The Watan Abolition Act came into force on 1-5-1951. The suit lands were resumed by the Government under Section 3 of that Act. On 12-8-1952, a fresh entry was made in the Record of Rights relating to these lands substituting the name of the Government for the names of the defendants.

7. After resumption of the suit lands the defendants made an application for re-grant of the lands under Section 4(1) of the Watan Abolition Act and deposited a sum equal to six times the assessment on the lands. The Prant Officer re-granted the suit lands to the defendants under Section 4(1) of the Watan Abolition Act, by his order dated 22-11-1953.

8. The plaintiffs made an application to the Collector, Belgaum, on 4-5-1954, praying for re-grant of the suit lands under Section 4(1) of the Watan Abolition Act. They claimed that they were the holders of the suit lands, that they had acquired a valid title to them before the Watan Abolition Act had come into force. But the plaintiffs did not deposit the occupancy price as required by Section 4(1) of the Watan Abolition Act, but merely stated in their application that they were willing to pay that price. Their application was rejected by the Prant Officer to whom presumably the Collector had referred their application. The order of the Prant Officer is dated 12-1-1955, but it was communicated by the Mamlatdar by his letter dated 28-1-1955 to plaintiff-1.

9. On 20-12-1955 the plaintiffs made another application to the Collector, purporting to be an appeal against the order of the Prant Officer. The Collector dismissed the appeal as barred by time, by his order dated 15-2-1956.

10. The present suit was filed on 18-9-1954, that is, after the plaintiffs had made an application to the Collector for the re-grant of suit lands but before that application was rejected by the Prant Officer.

11. The plaintiffs alleged in the plaint that the suit lands were given to their ancestor, Narasimhabhat, as Pot Inam; that although these lands were originally Paragana Watan Lands of the defendants' family, the grant of these lands in favour of Narasimhabhat was valid as that grant was made before the Watan Act of 1827 had come into force; that the family of the plaintiffs became the lawful owners oi the same and were in possession continuously since the time of the grant; that after the death of the last male holder, Shankar Gopal, his only daughter, Banu Bai alias Rukmini Bai, became the owner of these lands; that she bequeathed those lands to them under a Will; that after her death they became the owners of these lands; and that even without such testamentary disposition they were the heirs of Banubai.

The plaintiffs also claimed that they had acquired a valid title to the suit lands by adverse possession. They further alleged that the defendants had no manner of right, title or interest in these lands; that they were not the holders of these lands and hence, the re-grant of these lands to them was illegal; and that no rights whatsoever had accrued to them in these lands by virtue of such 'illegal regrant obtained unauthorisedly.'

12. The defendants, in their written statement, alleged that only the income from the suit lands was given to Narasimha Bhat as remuneration for performing the daily worship of the deities of the defendants' family; that Narasimha Bhat had not become the owner of the suit lands; that he never enjoyed them and was never in Watan of them; that these lands continued to be in the possession and Watan of the defendants' family; that the income from the lands in excess of a remuneration of Rs. 60 was also enjoyed by the defendants' family; that after the death of Shankar Gopal no poojas were performed by the plaintiffs' family and hence the defendants demanded the tenants of these lands to pay rents to one other Bhatji who was performing poojas; that a dispute arose between those tenants and the defendants; and that the entries in the Record of Rights were changed to the names of the defendants as they were found to be in possession of those suit lands.

The defendants denied the genuineness and validity of the Will set up by the plaintiffs and contended that after the death of Shankar Gopal, his daughter could not succeed to the Watan properties. The defendants also contended that the plaintiffs were not entitled to re-grant of the suit lands under the Watan Abolition Act, that the plaintiffs' suit was barred by Section 4 of the Revenue Jurisdiction Act, that the Civil Court had no Jurisdiction to grant the declaration sought for by the plaintiffs and that the plaintiffs' suit was also barred by time.

13. The trial Court framed as many as twentyfive issues. These issues can be broadly divided into two groups -- one relating to the title of the plaintiffs to the suit properties and another relating to the maintainability of the suit and limitation. The learned Civil Judge held that the grant in favour of Narasimhabhat was an absolute grant; that the said grant was valid though the properties were watan properties as it was made prior to the coming into force of the Watan Act in 1827; that the plaintiffs' family continued to be in possession of the suit properties through their tenants; that after the death of Shankaragopal, his daughter, Banubai, became the owner of the suit properties as his sole heir; that the will of Banubai pleaded by the plaintiffs was genuine and valid; and that the plaintiffs acquired a valid title to the suit properties before they were resumed by the Government.

While holding that the suit was not barred by Section 4 of the Revenue Jurisdiction Act and was not filed beyond the period of limitation, the learned Civil Judge held that the title of the plaintiffs to the suit lands got extinguished when they were resumed by the Government under Section 3 of the Watan Abolition Act; that the defendants became the owners of these lands by virtue of their re-grant of them by the Government; that the plaintiffs did not pursue proper remedies before the revenue authorities for obtaining re-grant of these lands to themselves; and that the civil Court could not interfere with the re-grant of these lands to the defendants by the revenue authorities as it was not shown that such re-grant was without jurisdiction or there was any illegality in the procedure adopted by the revenue authorities. In that view, the learned Civil Judge declined to grant the declaration and injunction sought for by the plaintiffs, and dismissed the suit.

14. In this appeal, Mr. G. D. Shirgurkar, the learned counsel for the plaintiffs-appellants, has contended that the learned Civil Judge, having held that the plaintiffs were the owners of the suit land before they were resumed by Government under Section 3 of the Watan Abolition Act, should have also held that the re-grant of these lands in favour of the defendants who were not holders of these watan lands, was illegal and should have granted the reliefs sought for by the plaintiffs.

14A. The first question that arises for determination in this appeal is whether the Civil Court has jurisdiction to grant a declaration that any party is entitled to re grant under the Watan Abolition Act, of the lands resumed by the Government under that Act.

15. For the purpose of deciding this question, it is necessary to set out certain relevant provisions of the Watan Abolition Act.

16. Section 3 of the Act provides that all Paragana and Kulkarni watans shall be deemed to have been abolished with effect from, and on, the appointed day and that, subject to the provisions of Section 4, all watan lands are resumed and that all incidents appertaining to the said watans are extinguished.

17. Section 4 (1) of the Act provides that watan lands resumed under the provisions of the Act, with the reservation of public roads, lanes, paths, rivars, streams, lakes, tanks, water pourses, unbuilt village sites and the like, shall be re-granted to the holder of the watan to which they appertain, on payment of the occupancy price equal to twelve times the amount of the full assessment on such lands, within five years from the date of the coming into force of the Act.

This sub-section also provides that the grantee shall be deemed to be an occupant within the meaning of the Bombay Land Revenue Code in respect of such lands, and that all the provisions of the said Code and the Rules thereunder relating to unalienated land shall, subject to the provisions of this Act, apply to the said lands.

18. The two provisos to this sub-section are not relevant for the present purpose.

19. Clause (i) of the explanation to Section 4 (1) states that for the purposes of this section the expression 'holder' shall include all persons who on the appointed day are the watandars of the same watan to which the land appertained.

20. Section 7 of the Act provides for payment of compensation to the representative watandar who, in consequence of the coming into force of this Act, ceases to be entitled to emoluments payable in cash for performing certain services.

21. Section 9 empowers the Collector to determine such compensation.

22. Section 11 states that the award made by the Collector, subject to an appeal to the Bombay Revenue Tribunal, and the decision of the said Tribunal on the appeal, shall be final and conclusive and shall not be questioned in any suit or proceeding in any Court.

23. The Act does not expressly state in what manner an application for re-grant of the land under Section 4 (1) should be dealt with. Nor is it stated expressly whether any public notice should be given on such application or whether any notice should be given to persons who are likely to make rival claims as holders of watan entitled to re-grant, or to persons who have any interest in such land. The Act also does not expressly state which officer should make the re-grant and whether any appeal or revision would lie from the order of any officer making or refusing such regrant.

24. Mr. Shirgurkar contended that as the Watan Abolition Act does not contain any express provision for appeal against the order of any revenue authority making or refusing re-grant of the land resumed under Section 3 of the Act, the Civil Court should be competent to examine the correctness of such order. But this argument of Mr. Shirgurkar ignores that even though there is no express provision for an appeal in the Act, under Section 203 of the Bombay Land Revenue Code, an appeal would lie from any decision or order passed by a revenue officer under any law for the time being in force to that officer's immediate superior, in the absence of any express provision to the contrary.

25. The very question, whether an appeal lies from an order of a revenue officer re-granting or refusing re-grant under Section 4 (1) of the Watan Abolition Act, came up for consideration before a Bench of this Court in Sonubai v. Yamunabai 1962-40 Mys LJ 953. This is what their Lordships stated:--

'.... Section 203 of the Bombay Land Revenue Code does provide that in the absence of any express provision either in the Bombay Land Revenue Code or in any other law to the contrary, an appeal shall lie from any decision or order passed by a Revenue officer under the Bombay Land Revenue Code or under any other law for the time being in force, to that officers' immediate superior. Section 3 (1) of the Bombay Land Revenue Code defines a revenue officer as an officer appointed and employed in or about the business of the land revenue. It is thus clear that the Prant Officer, who made a re-grant to the petitioner, was a revenue officer as defined by Section 3 (1) of the Bombay Land Revenue Code and if he made an order under Section 4 of the Paragana and Kulkarni Watans (Abolition) Act, it & clear from Section 203 of the Bombay Land Revenue Code that since that order was one made by a revenue officer although under the Bombay Paragana and Kulkarni Watans (Abolition) Act, an appeal lay from that order to the officer who was immediately superior to the Prant Officer, there being no provision to the contrary anywhere. The meaning of Section 203 of the Bombay Land Revenue Code is that if an order is made by an officer whether the order is one made under the Bombay Land Revenue Code or whether under any other law for the time being in force, an appeal from that order lies to the immediate superior officer who made the order .....

That being the position, it is obvious, that the appeal presented to the Collector by respondent 1 from the order made by the Prant Officer, re-granting the land to the petitioner was perfectly maintainable. It is equally clear that from the order made by the Collector in appeal, a further appeal to his immediate superior officer was also competent as provided by Section 203 of the Bombay Land Revenue Code.. .'

IN the present case, the plaintiffs themselves filed an appeal to the Collector against the order of the Prant Officer; but that appeal was dismissed in limine on the ground that it was filed beyond time.

26. However, it was urged by Mr. Shirgurkar that even though there is a right of appeal to the Collector, the Civil Court is still competent to correct the decision of the revenue authorities especially when the question who is the holder of the watan involves a question of title to the watan properties. In any event, the Civil Court has jurisdiction to set aside the orders of the revenue authorities where such authorities acted without jurisdiction or in violation of the principles of natural justice, was the further submission made by Mr. Shirgurkar.

27. The principles governing the determination of the question as to how far the Jurisdiction of the ordinary civil Courts is taken away with respect to the matters which are entrusted to special Tribunals constituted by the Legislature, has been succinctly stated as follows in Mulla's Commentary on the Code of Civil Procedure Thirteenth Edn. Vol. 1--P. 41. edited by Mr. T. L. Venkatarama Aiyar.

(1) Where the statute re-enacts a right existing at common law and provides a special form of remedy therefor, the jurisdiction of the civil Court to deal with the matter is not excluded unless the statute says so expressly or by necessary implication.

(2) So also where the statute creates a new right but provides no special remedy therefor, it can be enforced in the ordinary civil Courts.

(3) But where a statute creates a new right not existing at common law and specifies a particular mode in which it is to be enforced, that bars by implication the jurisdiction or civil Courts.

(4) Even when the jurisdiction of civil Courts is excluded, they would have jurisdiction to examine into cases where the provisions of the statute have not been complied with or where the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, or of natural justice.

28. Mr. Shirgurkar is right in his sub-mission that the Civil Court has jurisdiction to examine whether the provisions of the statute have been complied with by the statutory tribunal and whether that tribunal has not acted in conformity with the fundamental principles of judicial procedure or of natural justice. But the plaintiffs have not sought for the relief of setting aside either the order of the Prant Officer re-granting the suit lands to the defendants or tie order of the Prant Officer rejecting the plaintiffs' application for such a re-grant or the order of the Collector dismissing the plaintiffs' appeal from the order of the Prant Officer.

In fact, the present suit was filed even before the Prant Officer made the order rejecting the plaintiffs' application for re-grant of the suit lands. Even though the plaintiffs sought for permission for amendment of the plaint and such permission was granted by the trial Court the amendment made was only by inclusion of a prayer for injunction against the defendants and not a prayer for setting aside either of the orders of the Prant Officer or the order of the Deputy Commissioner.

In the present suit, neither the Prant Officer nor the Collector has been impleaded as a party. Though an allegation is made in the plaint that the re-grant relied on by the defendants was illegal and without jurisdiction, there is no allegation made in the plaint that the Prant Officer did not comply with the provisions of the Watan Abolition Act or of any other relevant statute or that he did not act in conformity with the fundamental principles of judicial procedure or of natural justice either in the proceedings which resulted in the re-grant of the suit lands to the defendants or in the proceedings which resulted in rejection of the plaintiffs' application for such a regrant.

29. Hence, in the absence of necessary, allegations, the necessary prayer in the plaint and the necessary parties to the suit, we cannot entertain the belated contention of the appellants that either of the orders of the Prant Officer or the order of the Deputy Commissioner should be set aside on the ground that either of them acted without jurisdiction or did not comply with the statutory requirements or that they did not act in conformity with the fundamental principles of judicial procedure or or natural justice.

30. Regarding the Jurisdiction of the civil Court, the only other question that survives is whether the civil Court can go into the merits of the decision of the revenue authorities in re-granting the suit lands to the defendants or in refusing such re-grant to the plaintiffs and correct any erroneous decision of revenue authorities.

31. It is true that there is no express provision in the Watan Abolition Act which states that the decision or order of any authority granting or refusing the application for regrant of the resumed Watan land, shall be final and shall not be called in question in any civil Court. But it is well settled that the exclusion of the jurisdiction of the civil Courts may be not only by express words but also be by necessary implication, though such exclusion of jurisdiction is not to be readily inferred. Section 9 of the Code of Civil Procedure states that the Civil Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

32. When the watan lands are resumed by the Government under the Watan Abolition Act, all the rights of the erstwhile owners in such lands are extinguished. The right to obtain regrant of such lands, is a creature of the Watan Abolition Act and apart from the provisions of that Act, no person can claim any right to such regrant. The right to obtain such re-grant has to be enforced in the particular mode provided by that Act, namely by making an application to the authorities in the manner provided by Section 4 (1) of the Act. As stated in the third of the aforesaid four principles set out in the aforesaid passage in Mullas commentary, where a statute creates a new right not existing at common law and specifies a particular mode in which it is to be enforced, it bars, by implication, the jurisdiction of the civil Courts.

33. As stated earlier, a person aggrieved by an order or decision of the revenue authority on an application under Section 4 (1) of the Watan Abolition Act for re-grant of the resumed watan land, has a right of appeal under Section 203 of the Bombay Land Revenue Code. As observed by the Supreme Court in Desika Charyulu v. State of A. P., : AIR1964SC807 , the very provision setting up an hierarchy of judicial tribunals for the determination of the question on which the applicability of the Act depends, is sufficient in most cases for inferring that the jurisdiction of the civil Courts to try the same matter, is barred.

34. In Secy. of State v. Allu Jagannadham AIR 1941 Mad 530, a Full Bench of the Madras High Court considered the question of implied bar of the jurisdiction of civil Courts under the Madras Local Boards Act, 1920, Rule 6 of the Rules framed under that Act provides that a person aggrieved by an order of (sic)rcharge made by the Examiner of Local (sic) Accounts, may apply to the principal (sic) Court of original jurisdiction for an order (sic) his grievance. He can also apply to the Government to redress the wrong complained of. The Full Bench held that there was an implied exclusion of the right of such person to file a suit.

35. Mr. Shirgurkar, however, sought to derive support from an unreported decision of this Court in C. P. 79/1961 (Mys). In that case, one Subhadra Bai. widow of one of the members of the Watandars' family had, under an agreement between her and other members of the family, obtained possession of eleven items of the watan properties to hold them during her lifetime towards her maintenance. After the watan lands were resumed by the Government under the Watan Abolition Act, she applied to the revenue authorities for re-grant of those eleven items.

The Prant officer regranted them to her and the Deputy Commissioner affirmed the said re-grant. In the further appeal the Divisional Commissioner held that she was not the holder of the watan and that she was merely entitled to continue in possession of these eleven items during her lifetime and set aside the re-grant in her favour and made a re-grant to one Bhima Bai, widow of another member of the watan family.

In that civil petition, a Bench of this Court held that Subhadra Bai was the holder of the eleven items of lands and was entitled to a re-grant of the same and reversed the order of the Divisional Commissioner and restored the orders of the Prant Officer and the Deputy Commissioner.

36. The interference with the order of the revenue authority by this Court in the above case, was under Article 227 of the Constitution of India and not in a civil suit. Hence, this unreported decision does not support the contention of Mr. Shirgurkar that the civil Court has jurisdiction to correct the decision of the revenue authorities under Section 4 (1) of the Watan Abolition Act.

37. As the plaintiffs' right to obtain re-grant or the suit lands is a right conferred by the Watan Abolition Act and not a right existing at common law, as the Act prescribes that right should be enforced by an application under Section 4 (1) of the Watan Abolition Act and as the plaintiffs had a right of appeal under Section 203 of the Bombay Land Revenue Code against the order of the Prant Officer rejecting their application, we think this is a clear case of implied exclusion of their right to file a suit in respect of the same matter.

38. As we hold that the present suit is barred, it is unnecessary for us to examine the other questions arising in this appeal.

39. In the result, this appeal fails and the same is dismissed.

40. Having regard to the circumstances of the case, there will be no order as to costs.

41. Appeal dismissed.


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