1. This is a deft's. appeal arising out of a suit for a declaration &, in the alternative for possession.
2. In 1913 the plff. respondent executed a sale deed in respect of plot No. 108 (which is the subject-matter of dispute before me) in favour of the deft-appellant. To this sale deed the provision of Section 3, Bundelkhand Alienation of Land Act II(2) of 1903 applied. According to that section the permission of the Collector of the district in which the land was situated had to be obtained in order to give effect to the sale deed.
3. The present suit was filed in 1944. The plff. alleged that, as no permission under Section 3, of the aforesaid Act had been taken for the alienation, the alienation could, at the best, be treated as usufructuary mortgage for a period of over 20 years under the provisions of Section 14 of the Act & that as those 20 years have expired within 12 years of the suit, he was entitled to get back possession.
4. The defence to the suit was that, although no sanction had been obtained in the beginning a sanction was obtained in 1943 when the deft.-appellant applied for mutation of his name in the revenue Court. His case was that this sanction supported the alienation & the suit was not maintainable. The trial Court accepted the defence & dismissed the suit. On appeal the lower appellate Court held that the sanction of the Collector in 1943 was of no avail & did not help the deft. In the result the suit was decreed. The deft. has now come up in Second Appeal to this Court.
5. It has been urged that the view of law taken by the lower appellate Court that the sanction obtained in 1943 was of no avail to the deft. is not sound. Reliance is placed upon the proviso to Sub-section 2 of Section 3 & also upon Section 22 of the Act. These sections run as follows:
'3 (2) Except in the cases provided in Sub-section (1), a permanent alienation of land shall not take effect as such unless & until sanction is given thereto by the Collector of the district in which the land is situated.
22. (i) A Civil Court shall not have jurisdiction in any matter which (the Provincial Govt.) by a Revenue Officer is empowered by this Act to dispose of.
(2) No Civil Court shall take cognizance of the manner in which the (Provincial Govt.) or any Revenue Officer exercises any power vested in it or in him by or under this Act.'
Section 14 runs as follows:
'The effect of an alienation for which 'no sanction has been obtained is that it does not take effect 'as such' that is to say according to its tenor it takes effect as a usufructuary mortgage under Section 14 for a maximum period of 20 years as prescribed. After the expiry of 20 years the mortgage is exhausted & the property reverts or must revert to the vendor or alienor:
6. The result of the provisions of Sections 3 & 14 is that after the expiry of 20 years from the date of the alienation, the transfer becomes extinguished. Now it is urged that under the proviso to Sub-section 2, of Section 3, the Collector is empowered to give sanction, after the act of alienation is otherwise completed Section 3 contemplates that no alienation shall be made without previous sanction but that a sanction obtained after the alienation is completed, will not be treated as bad although no time limit is fixed in which such a 'post factum' sanction can be accorded. It follows from the effect of Section 14 that in the very nature of things this sanction cannot be accorded after the very thing for which sanction is required has ceased to exist. If the sale deed itself no longer exists there can be no question of any sanction to the sale deed being accorded. The result is that the 'post factum' sanction can be accorded only within the period of 20 years at the most but not after 20 years. The sanction in the present case having been accorded more than 20 years after the alienation was not within the competence of the Collector.
7. Now Section 22 of the Act has been relied upon for the proposition that even though the Collector may have erroneously given the sanction in the present case, the civil court has no jurisdiction to challenge it & hold it to be bad. I am afraid that this contention is not sound. The civil court is not to have jurisdiction in any matter which.... a revenue officer is empowered by this Act to dispose of & a civil Court is not to take cognizance of the manner in which the revenue officer exercises any power vested in it or in him by or under this Act. This section clearly bars the jurisdiction of the civil Court only in those cases in which a revenue officer takes upon himself the duty of disposing of a matter which is entrusted to him by the Act to dispose of, & which he disposes of by virtue of a power vested in him by or under the Act. The Act empowers a revenue officer to accord sanction to an alienation but if there is no alienation in existence, the Act does not vest the revenue officer with the power of giving any sanction. As I have held above, in the present case, there was no alienation in existence in the eye of law. As such the Collector had no power to accord any sanction & if he did so, he went beyond the powers vested in him by or under the Act. The view taken by the lower appellate Court is right.
8. There is no force in this appeal & I dismissit under Order 41, Rule 11 Civil P. C.