1. This appeal has been preferred by the Raja of Daiya in a suit for a declaration that Pancham Ram was the actual owner of the zamindari property in Bhagwanpur and Pura Ram Nath under a sale-deed dated 7th March 1922, that the plaintiffs were the owners of the property by virtue of their purchase from Pancham and that the sale deed dated 13th March 1923, in favour of Raja Drig Bijai Singh of Daiya and all the consequential mutation proceedings and the order of the revenue Court cancelling the sale-deed in favour of Pancham Ram aforesaid were ineffectual against the plaintiffs.
2. The properties in suit are situate in the Meja Sub division of the district of Allahabad and are subject to the provisions of the Bundelkhand Alienation of Land Act (No. 2 of 1903).
3. The properties were, owned by Lala Durga Prasad Singh, caste Kshatriya-Gaharwar. On 17th September 1919 he made a usufructuary mortgage from 1327-1346 FF in favour of Lala Ram Lal and Lala Raghunath Prasad for Rs. 1,600, On 7th March 1922 he sold the properties to Pancham Ram Brahman Tewari, defendant 3, resident of district Allahabad for Rs. 5,000. The details of the sale consideration are as follows.
4. Rs. 600 were received as earnest-money on 16th February 1922.
5. Rs. 110 6-3 for expenses relating to the execution and completion of the document;
6. Rs. 1,421 were received in cash before the Sub-Registrar.
7. Rs. 2,868-9-9 were left with the vendee for payment to Lala Ram Lal and Lala Ganesh Prasad, son of Lala Raghunath Prasad deceased on account of the mortgage dated 17th September 1919.
8. Lala Durga Prasad Singh, the vendor and Pancham Ram, the ostensible vendee are agriculturists within the meaning of the Land Alienation Act.
9. Pancham Ram applied for mutation and his name was recorded in the revenue papers without any challenge or protest on the 26th April 1922.
10. On 27th February 1923 Pancham Ram sold these properties to Kamta Prasad Singh, the original plaintiffs in the action, for Rs. 5,300. The details of the sale consideration are as follows:
11. Rs. 100 was taken for the cost of the execution and completion of the document.
12. Rs. 2,331-6-0 were paid in cash before the Sub-Registrar;
13. Rs. 2,86810-0 were left in deposit with the vendee for payment of the debts due to Lala Ram Lal.
14. The stamp paper was purchased by Pancham himself and there is the endorsement of the Sub-Registrar that Rs. 2.331-6-0 were paid to Pancham, is currency notes and cash in his presence. Chowdhry Kampta Prasad Singh applied for the substitution of his name in place of Pancham in the village administration papers but during the pendency of the application, Lala Durga Prasad Singh sold the properties over again to Raja Drig Bijai Singh of Daiya for Rs. 8,000. The recitals in the documents are extraordinary and out of the common. He states that he had already mortgaged the properties to Ram Lal and Ganesh Prasad on 18th September 1919, and Lala Ram Lal had fictitiously obtained the sale-deed dated 7th March 1922 in the name of his servant Pancham on condition that he would obtain the permission of the Collector. Ram Lal himself paid the sale consideration but now the executant had come to know that the sale-deed had been fictitiously obtained in favour of Pancham and as the Collector had refused permission to Ram Lal the sale-deed dated 7th March 1922 did not escape the operation of the Bundelkhand Act and was null and void as against him.
15. On 13th March 1923 Durga Prasad Singh made an application to the Collector praying for the cancellation of the sale-deed dated 7th March 1922 for the removal of the name of Pancham Ram, and for the substitution of his name therein. This application purports to be under para. 9 of the rules of the Revenue Department, issued on 20th of' June 1903. The application states in unmistakable terms that Ram Lal and Ganesh Prasad were the real purchasers of the property, that Pancham was only a convenient tool. He was merely a cloak used for defeating the object of Act 2 of 1923 whereby Ram Lal and Ganesh Prasad, who were non-agriculturists, could not obtain a permanent alienation of the property without the sanction of the Collector. On 22nd May 1923 the Tahsildar reported to the Collector that the sale-deed in favour of Pancham was a colourable transaction, that Ram Lal was the real purchaser and the mutation order dated 26th April 1922, in favour of Pancham was not justified. The Collector, under an order dated 24th July 1923, held that the sale in favour of Pancham was fictitious, that the real purchaser was Ram Lal but no title passed to Ram Lal, because the alienation did not receive the sanction of the Collector, that Pancham not being the owner of the property could not convey any title to Chowdhry Kamta Prasad, that as Lala Ram Lal disclaimed all connexion with the transaction, it was not possible for him to give Ram Lal a mortgage under 8.14, Bundelkund Alienation Act. The operative part of the Collector's order may be reproduced:
I cancel previous proceedings and order that the entries be restored as existed before Pancham was recorded as owner of the property.
16. This order of the Collector is complained of by the plaintiffs and forms the cause of action for the present suit.
17. The original plaintiff, Kamta Prasad Singh, died during the pendency of this suit and was substituted by his three sons. The defendants to the suit were Pancham Ram, Lala Durga Prasad Singh, the original owner, Lala Ram Lal and Rani Shesh Prasad Kuar and Rani Rukmin Kuar, the widows of Raja Drig Bijai Singh. The defendant-appellant, Lala Bhagwati Prasad Singh, appears to have bean adopted by the Ranis during the progress of the suit and was subsequently brought on the record. The suit was contested on the ground that the civil Court had no jurisdiction to question the order passed by the Collector on 24th July 1928, because it was a matter which a revenue officer was empowered by Act 2 of 1903 to dispose of and Section 22 of the Act barred the jurisdiction of the civil Court on such matters. It was next contended that the suit was barred by Section 42, Specific Belief Act. Lastly it was pleaded that Pancham Ram was as a matter of fact a benamidar for Lala Ram Lal. Pancham Ram did not possess any transferable interest in the property in his own right and consequently a sale by him to Kamta Prasad passed no title.
18. The Subordinate Judge repelled these pleas and decreed the plaintiff's suit; hence this appeal. In appeal the bar of the jurisdiction of the civil Court has been argued. Section 9, Civil P.C., provides that the Court shall (subject to the provisions herein contained) have the jurisdiction to try all suits of civil nature excepting suits of which the cognizance is expressly or impliedly barred. In the present case, having regard to the allegations contained in the plaint and relief sought, the suit is a suit of a civil nature and the civil Court is the proper forum to entertain such suit. The defendants, seeking to oust the jurisdiction of the civil Court, have to establish that the jurisdiction of the civil. Court has been taken away by the express text of any enactment for the time being in force or as a matter of obvious and necessary inference from the text. It was open to the defendants to show that the cognizance of such suit was impliedly barred in the sense that it was barred by general principles of law. Where a rule of law is pleaded as ousting the jurisdiction of the civil Court, the said rule should be clear and unequivocal. The jurisdiction of the civil Court should not be taken away merely upon the ground that though the rule as formulated is not explicit enough, such a rule should be supplemented by a process of reasoning and the corollary or inference should be invested with the same legal efficacy as an express rule of law.
19. It has been argued that in the present case the jurisdiction of the civil Court is barred by Section 22, Land Alienation Act. This section provides that a civil Court has no jurisdiction in any matter which... a revenue officer is empowered by this Act to dispose of. A revenue officer has been defined in Act 3 of 1901 (Local) as any officer employed under this Act in maintaining revenue records or in the business of land revenue. The Collector, who, at the instance of Durga Prasad Singh, passed the debatable order on 24th July 1923, is a revenue officer. The crucial point in the case is whether, in entertaining the application of Durga Prasad and in pursuing investigation consequent thereon, he was disposing of a matter which was within his province to determine under the provisions of the Land Alienation Act. It is not in cases of alienation generally that the Collector has jurisdiction to act under Act 2 of 1903. The Collector has no jurisdiction to enquire into the propriety or validity of permanent alienation made under Clauses (a) and (b) of Section 3, Clause (1). Where a permanent alienation is intended to be made by an agriculturist in favour of a non-agriculturist, no legal effect can attach to such transfer without the sanction of the Collector. Under Clause (3), Section 3, in such cases, the Collector shall enquire into the circumstances of the alienation and shall have discretion to grant or refuse by an order in writing the sanction required by Sub-section 2. The field of enquiry is extremely limited. In the ordinary course of things what is contemplated is that where the transfer or the projected transfer is in favour of a non-agriculturist, the alienor or the alienee or both may apply to the Collector for sanction. The matter may be brought to the notice of the Collector in a variety of ways, such as, at the instance of the village patwari or on the report of the Naib-Tahsildar. The Collector is to enquire into the circumstances of the alienation as to 'whether the terms are fair, whether the consideration is sufficient; but his powers extend to granting or refusing to grant the alienation and no further. Where apparently the alienee is a member of the agricultural tribe as the alienor or is a member of an agricultural tribe and is a resident of the district in which the land is situated, no sanction of the Collector is necessary and the Collector has no power to start an enquiry as to the legality or propriety of the alienation. The alienee in Clause (b) apparently means the person who on the face of the instrument is the transferee. It cannot be given an extended meaning so as to include both ostensible alienee and the real alienee. If the ostensible alienee is a non-agriculturist, no title passes to him without the sanction of the Collector. If the ostensible alienee is an agriculturist but he holds the property for a third party who is a non-agriculturist no resultant trust can accrue in favour of the beneficial owner in defiance of the provisions of Section 3, Clause (2) of the Act. A non-agriculturist benami purchaser acquires no title to the property. His name can never be mutated except in conformity to Section 18. He has no heritable or transferable interest in the property. The person in whose favour the deed has been executed, so long as he happens to be an agriculturist, must for the purposes of this Act be taken to be the absolute owner of the property and is the only alienee who could be taken notice of.
20. The Collector has no jurisdiction, under Act 2 of 1903, either to cancel the sale-deed of Pancham or to remove the name of Pancham from the revenue records and direct substitution of the name of Durga Prasad in his place. In passing the order therefore on the 24th July 1923 the Collector was not disposing of any matter within the scope of Act 2 of 1903.
21. As a revenue officer, the Collector is the only authority to regulate the maintenance of village administration papers (Section 34, Land Revenue Act). It ought to be noted, however, that on the date or Durga Prasad's application, Durga Prasad's name did not stand in the revenue records; Pancham's name had already been mutated. Durga Prasad did not derive any title by transfer of succession from Pancham. Assuming that the order of the Collector dated 24th July 1923 was made under Section 40, Land Revenue Act, the said order 'did not debar any person from establishing his right to the property in the civil Court.'
22. During the progress of argument, a reference was made to the rules published in the United Provinces Gazette on the 27th June 1923. These rules purport to have been made under Section 24, Act 2 1903 and have the force of law. It was vaguely suggested that these rules operated as a bar to the jurisdiction of the civil Court, but the attention of this Court has not been drawn to any rule which may have this effect. The defendants have failed to establish that the jurisdiction of the civil Court is barred. This plea is accordingly rejected.
23. It may be noticed here that even if Ram Lal were the real purchaser of the property and the sale could not take effect as such, the whole transaction could not be avoided. The provision of Section 14 of the Act is mandatory and the Collector was bound to give effect to it. The property in suit is in possession of the usufructuary mortgagees. Without redeeming the mortgage, the plaintiffs could not claim possession of the property.
24. The suit is therefore not barred by Section 42, Specific Relief Act.
25. The onus of proving that Pancham Ram was a benamidar for Ram Lal lay heavily upon the defendant-appellant and he has hopelessly failed. His entire case practically rests upon the evidence of Durga Prasad and Bindeshwari Singh.
26. Durga Prasad is a man of embarrassed circumstances and the Raja of Daiya was one of his creditors, who held a decree for money against him. He is an interested party and his statement as a whole is not calculated to inspire any Court with confidence. The other witness Bindeshwari Singh according to his own showing is an ex-servant of the Raja of Daiya. The Raja had instituted a suit against him for rendition of accounts. The Raja died and the suit was allowed to abate. It is quite possible that the non-prosecution of the suit is the price of his present evidence. It has been held in a series of cases that in a benami purchase in India the criterion of beneficial ownership is the source from which the purchase money was derived. In the present case the defendant-appellant has signally failed to prove that the purchase money was not paid by Pancham but flowed from the pocket of Ram Lal. Ram Lal has been examined in the case and he disowns all concerns. No attempt was made by the appellant to have Ram Lal's account books produced in Court. It is true that Pancham is not wealthy or prosperous, but the defendants have failed to prove that the sale consideration was not paid by Pancham but by Ram Lal. The defendants relied upon two documents, purporting to be the statements of Pancham made in the mutation Court on the 23rd March 1922, and the 3rd May 1923. These statements, if intended to be used to contradict Pancham, ought to have been put to Pancham under Section 145, Evidence Act. These cannot, therefore, be used as evidence to contradict the statement of Pancham claiming that he was the purchaser of this property under the sale-deed executed by Durga Prasad in his favour.
27. Counsel for the defendant-appellants endeavoured to meet the provisions of Section 145 by urging that in the circumstances of this particular case the attention of the witness was in effect drawn to his previous statements. He points out that it is clear that the witness had well in mind the fact that he had made previous contradictory statements because in his examination-in-chief he was asked to make a statement as to whether he had made any previous statement to the Tahsildar. The putting to him of this question and his denial of having made any statement may reasonably be construed as proving that the plaintiffs' counsel and the witness knew perfectly well of the existence of those statements. The fact that he was asked as to the statements made before the Tahsildar, whereas in fact they were made before the Naib-Tahsildar, really makes no difference.
28. It is next pointed out that the documents recording the statements made to the Naib-Tahsildar were really in Court at the time, and this is established by the fact that the order sheet shows that they were noted as admitted in evidence and marked as exhibits on the same day as the witness made his statement. It is next suggested, and not without reason, that counsel for the defendants thought it futile to put these statements to the witness in view of the fact that he had already shown by his examination-in-chief that he knew of those statements, and was prepared to deny having made them. This may be so; but Section 145 requires that the attention of the witness must before the writing can be proved be called to those parts of it which are to be used for the purpose of contradicting him. And in view of the strict language employed in Section 145, and of the desirability of making it quite clear that a witness must be given an opportunity of meeting any criticism of his evidence, we think any laxity of practice in this respect cannot be condoned. The witness was entitled to have his attention specifically drawn to the passages; and that was not done.
29. It is next sought to use these statements as the statement of a person from whom the plaintiffs derived their title, and admissible under Section 21, Evidence Act. Before the defendants could be allowed to do this, they had to lead evidence to prove that the statements in question were made by Pancham. As has been noticed above, these statements were never put to Pancham, nor was any evidence produced in Court to bring the statements home to Pancham. Under those circumstances the defendants were not entitled to use these statements as admissions of the predecessors-in-title of the plaintiffs.
30. We dismiss the appeal with costs.