Skip to content


Tribeni Kurmi Vs. M. Ram Dulari and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2002 of 1950
Judge
Reported inAIR1958All168
ActsProvincial Small Cause Courts Act, 1887 - Schedule - Article 35; Uttar Pradesh Panchayat Raj Act, 1947 - Sections 55; Code of Civil Procedure (CPC) , 1908; Uttar Pradesh Land Revenue Act, 1901 - Sections 57
AppellantTribeni Kurmi
RespondentM. Ram Dulari and anr.
Appellant AdvocateRama Shankar Prasad, Adv.
Respondent AdvocateHarnandan Prasad, Adv.
DispositionAppeal dismissed
Excerpt:
civil - jurisdiction - schedule 2 of clause (ii) of article 35 of provincial small cause courts act, 1887 - whether civil court has jurisdiction to entertain the suit - court to exercise jurisdiction not constituted - civil court can take cognizance and thereby is not ousted of jurisdiction. - - clearly there was an allegation in the plaint that a criminal offence had been committed. panchayat raj act as it stood at the time of the ruling cited ran as follows :offences under the following sections, if committed within the jurisdiction of a panchayati adalat as well as abetments of and attempts to commit such offences shall be cognisable by such panchayati adalat......existing on the date when the plaint was filed, the court could proceed with the trial of the suit. the learned munsif also held that the suit was not cognizable by a small cause court. 4. the court below upon appeal, has held that neither the small cause court nor the panchayati adalat had jurisdiction. 5. in this second appeal it is submitted that the decision of the court below is incorrect. 6. so far as the submission that the small cause court has jurisdiction is concerned, that submission is met by the allegations in the plaint which i have referred. clearly there was an allegation in the plaint that a criminal offence had been committed. in these circumstances the jurisdiction of the civil court is not ousted. see small cause courts act second schedule, article 35 (ii).....
Judgment:

Gurtu, J.

1. This is a second appeal by the defendant in the suit.

2. The plaintiffs came upon the allegation that the defendant had removed moonj from his property. They claimed damages. The plaintiffs' allegation was that the defendant was sarkash, that he had unlawfully removed the said moonj, that a report in respect of such removal had been made at the Thana, and that the defendant had absolutely no right in the moonj. The suit was defended and I am informed the defendant asserted his own right to the moonj and stated that he had cut the moonj from his own land. The amount claimed by way of damages was Rs. 15/- only.

3. An issue was raised in regard to the jurisdiction of the Court before the learned Mun-sif. It was urged (a) that the small cause Court had jurisdiction, (b) that the Panchayati Ada-lat had jurisdiction. The learned Munsif. held that though the Panchayati Adalat had jurisdiction, inasmuch as there was no Panchayati Adulat existing on the date when the plaint was filed, the Court could proceed with the trial of the suit. The learned Munsif also held that the suit was not cognizable by a small cause Court.

4. The Court below upon appeal, has held that neither the small cause Court nor the Panchayati Adalat had jurisdiction.

5. In this second appeal it is submitted that the decision of the Court below is incorrect.

6. So far as the submission that the small cause Court has jurisdiction is concerned, that submission is met by the allegations in the plaint which I have referred. Clearly there was an allegation in the plaint that a criminal offence had been committed. In these circumstances the jurisdiction of the civil Court is not ousted. See Small Cause Courts Act second schedule, Article 35 (ii) thereof.

7. In regard to the contention that the Panchayati Adalat had jurisdiction, I am of the view that Section 55 of the U. P. Panchayati Raj Act bars the civil Court from taking cognizance only of suits which are cognizable under the Act by a Panchayati Adalat. I emphasize the word 'cognizable'. If there is no Panchayati Adalat constituted to take cognizance no suit can be cognizable by it. Section 55 as it stood at the time when the suit was filed ran as follows :

''No Court shall take cognizance of any case or suit which is cognizable under the Act by a Panchayati Adalat unless an order has been passed by a Sub-Divisional Magistrate or Munsif under Section 85.'

8. The cognizability of the suit by a Panchayati Adalat and its non-cognizability by an ordinary civil Court really depended upon the existence of the Panchayati Adalaf. Recently in order to leave no doubt on this score Section 55 has been amended and it now runs as follows :

'After a Nyaya Panchayat has been established for any area, no Court except as otherwise provided in this Act shall take cognizance of any case triable by such Nyaya Panchayat.'

9. In my view the previous section, although differently worded, could have no other meaning than that if a Nyaya Panchayat was in existence capable of taking cognizance, then the cognizance of the suit by the ordinary civil Court would be barred. Nature abhors a vacuum and I assume that Legislatures likewise abhor vacuums and I do not think that I am unduly straining the language of the old Section 55 in giving the interpretation which I am giving.

10. I have been shown the single Judge decision in Kripa Ram v. Ram Asrey, AIR 1951 All 414 (A). That was a case in which a criminal case was filed in the Magistrate's Court which was said to be triable by a Panchayati Adalat. No Panchayati Adalat was in existence, nonetheless the Court held that the Magistrate could not take cognizance. It was observed that the fact that the Panchayati Adalats had not been constituted would not effect the provision taking away jurisdiction from the other Courts, although it might re' suit in creating inconveniences and lawlessness.

11. Surely the way to interpret a sections is not to interpret it in such a way that inconve-niences and lawlessness may be caused unless it is absolutely necessary to do so.

12. Section 52 of the U. P. Panchayat Raj Act as it stood at the time of the ruling cited ran as follows :--

''Offences under the following sections, if committed within the jurisdiction of a Panchayati Adalat as well as abetments of and attempts to commit such offences shall be cognisable by such Panchayati Adalat.' (It is not necessary to state the offences mentioned for the purposes of this argument.)

13. Now it is not apparent to me how an offence can be said to be committed within the jurisdiction of a Court be it a Panchayati Adalat, or otherwise if there is not in existence such a Court or Panchayati Adalat, particularly in the case of a Panchayati Adalat which is yet to be created and which has not been in existence before the date at all.

There might have been some scope for argument if there had already been a Panchayati Adalat in existence and for some reasons it had temporarily ceased to function, but in a case where there was never a Panchayati Adalat previously capable of taking cognisance of any of the enumerated offences, then I do not see how it could be said that the jurisdiction of the ordinary criminal Court was barred.

In my view, therefore, I should not be bound by the reasoning of the judgment ot the learned single Judge referred to above. I am informed that there are other single Judge cases which have taken the same view as the case cited above, but I think that the line of reasoning adopted by me is based on common sense and should be accepted.

14. Another contention was raised by the learned counsel for the appellant and it was to the effect that the settlement map had not been preferred but that the partition maps and partition Khasras had been relied upon by the Court below. My attention was drawn to Section 57 of the Land Revenue Act. What that section says is that entries in records-of-rights prepared in accordance with the provisions of Ch. 4 would be presumed to be true until the contrary is proved.

The settlement map, therefore, would be presumed to be true unless the contrary is proved. If the settlement map, even though not prior in point of date, contains something which is contrary to the previous partition map then it is open to a Court to come to a conclusion that the presumption in favour of the right-ness of the settlement map has been rebutted.

15. I have considered all the points raised by the learned counsel for the appellant and I have come to the conclusion that this appeal must be dismissed with costs.

16. Accordingly this appeal is dismissed with costs.

17. Leave to file special appeal is asked for and is granted.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //