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Salig Ram and anr. Vs. Uma Shanker and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSupreme Court Petn. No. 485 of 1974
Judge
Reported inAIR1976All495
ActsConstitution of India - Article 133 and 133(1); Constitution (Thirteenth Amendment) Act, 1972; Code of Civil Procedure (CPC) , 1908 - Sections 109 and 110
AppellantSalig Ram and anr.
RespondentUma Shanker and ors.
Appellant AdvocateDeokinandan, Adv.
Respondent AdvocateP.K. Mishra and ;Jagdish Swarup, Advs.
DispositionPetition dismissed
Excerpt:
civil - right of appeal to supreme court - section 109 and 110 of code of civil procedure, 1908 and article 133 (1) of constitution of india - article 133(1) of the constitution is the sole repository of a right of appeal to the supreme court from judgment , decree and final order passed in civil proceedings by the high court - proceedings instituted before the commencement of constitution (13th amendment) act, 1972 also to be governed by amended article 133(1) of the constitution. - - 49 of 1973, not being retrospective, the right inhering in the plaintiff to go as of right in appeal to the supreme court, on the certificate of valuation, the judgment being of reversal, cannot be taken away by the amendment and the judgment and decree passed on appeal by the high court against the..........the case fulfils the requirement of section 109(a) and (c) read with section 110 of the code of civil procedure as also article 133(1) of the constitution.2. after obtaining the permission of the advocate general, the plaintiff-respondents, who are two citizens of allahabad, brought a suit under section 92 of the civil procedure code praying for the following reliefs:'(i) decree vesting of the thakurdwara properties namely the house nos. 62 and 62-a, golghar muthiganj, allahabad (more fully described at the foot of the plaint) in the trustees to be appointed after settling a scheme for the management of the thakurdwara of sri radha and sri krishnaji and sri mahabirji situated in the said house, including the said house as the property appurtenant to the thakurdwara.(ii) costs of the.....
Judgment:

K.B. Asthana, C.J.

1. This is an application by the plaintiff-respondents praying that this Court may grant a certificate to the petitioners that the case fulfils the requirement of Section 109(a) and (c) read with Section 110 of the Code of Civil Procedure as also Article 133(1) of the Constitution.

2. After obtaining the permission of the Advocate General, the plaintiff-respondents, who are two citizens of Allahabad, brought a suit under Section 92 of the Civil Procedure Code praying for the following reliefs:

'(i) Decree vesting of the Thakurdwara properties namely the house Nos. 62 and 62-A, Golghar Muthiganj, Allahabad (more fully described at the foot of the plaint) in the trustees to be appointed after settling a scheme for the management of the Thakurdwara of Sri Radha and Sri Krishnaji and Sri Mahabirji situated in the said house, including the said house as the property appurtenant to the Thakurdwara.

(ii) Costs of the suit.

(iii) Such other and further relief as the Court may in the circumstances of the case deem just and proper.'

Three persons were impleaded as defendants in the suit. It was alleged by the plaintiffs that the house, described at the foot of the plaint, was Thakurdwara wherein idols of Sri Radhaji and Sri Krishanji were installed in a room and of Sri Mahabirji in a verandah thereof and the Hindu public had been worshipping the said idols as deities since time immemorial. One Baba Harbhajan Dass was the Shebait after whose death Smt. Sukhrani Devi, who was only a mistress of the Baba, came in possession of the Thakurdwara having got her name mutated in the municipal records as the widow of Baba. After the death of Smt. Sukhrani Devi some time in the year 1954 no one in particular had been looking after the Thakurdwara and the property appurtenant thereto, as no one was responsible to look after and manage it. It was also alleged by the plaintiffs that taking advantage of the position, the defendants had been claiming the ownership of the house in which the idols were installed on the basis of certain sale deeds obtained from Smt. Sukhrani Devi and had been filing suits against the tenants occupying some parts of the building. It was pleaded that the alleged transfer of the house and the Thakurdwara by Smt. Sukhrani Devi to the defendants and the entry of the name of all the defendants in the municipal records as owners thereof was invalid and not binding on the general Hindu public and the idols installed therein.

3. The defence was that neither the house in dispute nor the idols installed therein nor the so-called Thakurdwara were ever endowed property or apublic trust. It was further pleaded that Smt. Sukhrani Devi was not a trustee nor was Baba Harbhajan Dass. They owned the property in their own personal rights and the defendants have derived legal, title from them. It was also pleaded that the suit was incompetent and was not maintainable under Section 92 of the Civil Procedure Code,

4. The learned Additional District Judge, Allahabad, who tried the suit, found that the house in suit was a public trust and that the plaintiffs who were Hindus of the locality, had sufficient interest to maintain the suit. He also found that the suit was maintainable in the form it was brought. The defence plea that the house in dispute was a personal and private property of Baba Harbhajan Dass and that after him of Smt. Sukhrani Devi was repelled. The defendants were held to be in possession without any right or title of the trust property. The learned Judge accordingly decreed the suit holding that the property in suit comprised of public trust for the benefit of the Hindu public and directed a final decree to be passed appointing hew trustees and for management of the trust, the plaintiffs and the defendants were asked to submit a tentative scheme of management and three names for appointment of trustees.

5. The defendants being aggrieved, filed an appeal before the High Court. A Division Bench of this Court hearing the appeal found some difficulty and complexity in resolving what appeared to it conflicting views in decided cases, referred the following three questions for the opinion by a Full Bench:

'1. Whether a relief for declaration that a property is endowed property so as to bind strangers to the trust can be granted in a suit under Section 92 of the C. P. Code.

2. Whether the plaintiffs in a suit under Section 92 of the Civil Procedure Code, can claim reliefs, which do not find a mention in the permission or sanction granted by the Advocate General under Section 92 of the C. P. Code, and

3. Whether Clause (c) of Sub-section (1) of Section 92 of the Civil Procedure Code contemplates only vesting a title in the property in a trustee ?'

The Full Bench answered the first two questions in the negative and on the third question it held that in the case of She-bait of a Hindu deity, Clause (c) contemplates an order of vesting of managementand the right to the office of Shebait and all rights incidental thereto. On the basis of the answer of the Full Bench, the Division Bench hearing the appeal allowed it, set aside the judgment and decree of the trial court and dismissed the plaintiff's suit as being not maintainable under Section 92 of the C. P. Code. The plaintiffs have now sought certificate under Sections 109 and 110, Civil Procedure Code as also under Article 133(1)(c) of the Constitution.

6. When the suit was filed in 1961, it was argued that a right inhered to the parties to the suit for filing an appeal to the Supreme Court under Section 109 read with Section 110, Civil Procedure Code as it stood before the amendment of the Civil Procedure Code by Act No. 49 of 1973. The suit was valued at more than Rs. 20,000/- in the trial Court; the value being the same in the High Court in appeal as also in the proposed appeal to the Supreme Court and further that the decree being one of reversal, the appeal to the Supreme Court will go as of right and this Court would grant a certificate. Secondly, it was contended that if Section 109 read with Section 110, Civil Procedure Code as it stood before the said amendment, were not available then this Court can grant a certificate under Article 133(1) of the Constitution to the effect that the case raises substantial questions of law of general importance which need to be considered by the Supreme Court.

7. On behalf of the defendant opposite parties, learned counsel in reply submitted that against a judgment, decree or final order of the High Court in a civil proceeding, an appeal to the Supreme Court will lie only under Article 133(1) of the Constitution and not under Section 109 read with Section 110 C. P. C. It was further submitted that Article 133(1) having been amended by the Constitution (Thirtieth Amendment) Act, 1972 the value of the subject matter and the reversal of the decree will no longer be decisive factors for taking up the matter in appeal to the Supreme Court. The appellant must satisfy the High Court that substantial questions of law of general importance, needing to be considered by the Supreme Court, arise. Reliance was placed by the learned counsel on Sub-section (2) of Section 3 of the Constitution (Thirtieth Amendment) Act, 1972, which, according to the learned counsel, made the amended Article 133(1) of the Constitution applicable even to suits or other civil proceedings instituted or commenced in any court before the commencement of the Constitution (Thirtieth Amendment) Act, 1972.

8. Learned counsel for the respondents then submitted that since the decision of this Court on all the questions of law raised in the appeal rested mainly on the declarations of law made by the Supreme Court on Section 92 of the Civil Procedure Code, even though the questions of law discussed in the judgment of the Court be difficult and of general public importance, there is no occasion now for the Supreme Court to consider the same. Hence the certificate be refused.

9. As to the first contention raised on behalf of the petitioner-respondents we think that though the suit was filed in the year 1961, even then an appeal would lie to the Supreme Court from a judgment, decree or final order of the High Court passed in civil proceedings under Article 133(1) of the Constitution. It is difficult to agree with the contention that Sections 109 and 110 confer on the parties to a suit any independent right of appeal apart from and over and above, Article 133(1) of the Constitution. While Article 133 of the Constitution used the words 'in a civil proceeding', Section 109 of the Civil Procedure Code used the words 'passed on appeal'. An appeal from a decree in a civil suit would be a civil proceeding. This cannot be disputed. The provisions of the Civil Procedure Code, as in the scheme of that Code, were concerned mainly with civil suits, appeals, references, revisions and reviews. A suit before a civil court will be nothing but a civil proceeding.

10. Sections 109 and 110, Civil Procedure Code, as adapted and amended from time to time, continued to exist in the Civil Procedure Code with regard to the appeals from suits before the High Court and the Parliament took care to note that the language of Section 109 read with Section 110, Civil Procedure Code was always consistent and almost in pari materia with the language of Article 133(1) as amended by the Constitution (Thirtieth Amendment) Act from time to time. There was thus a parallelism. It would be difficult to read that there were two rights of appeal conferred independently on the parties to a suit culminating an appeal in the High Court. We think that Article 133(1) governs the judgments decrees and final orders passed in appeals by the High Court and that is why theanxiety on the part of the Parliament that there should not be any inconsistency at any stage between Article 133(1) of the Constitution and Section 109 of the Civil Procedure Code.

11. Under Chapter IV, Part V of the Constitution the only provision relating to appeals and civil proceedings would be Article 133(1) and Article 135 of the Constitution. Article 136 also governs civil proceedings, but that is for special leave to appeal to the Supreme Court itself.

12. A reference was made on behalf of the plaintiff-respondents to a decision of the Supreme Court in Garikapati Veeraya v. N. Subbiah Chaudhary, (AIR 1957 SC 540) in support of the submission that the amendment of Section 109. Civil Procedure Code by Act No. 49 of 1973, not being retrospective, the right inhering in the plaintiff to go as of right in appeal to the Supreme Court, on the certificate of valuation, the judgment being of reversal, cannot be taken away by the amendment and the judgment and decree passed on appeal by the High Court against the plaintiff will always be appealable under Section 109 as it stood before the amendment, read with Section 110. Civil Procedure Code on a mere certificate by the High Court that the subject-matter in appeal in the High Court as well as in appeal to the Supreme Court was of the value of more than Rs. 20,000/-. There, the plaintiff is entitled to have that certificate. We do not think that Garikapati Veeraya's case decided by the Supreme Court can be of any assistance to the learned counsel for the plaintiff petitioners. There the question that arose was whether a civil proceeding instituted before the commencement of the Constitution and the decree in appeal passed by the High Court after the commencement of the Constitution could be governed by Article 133 of the Constitution or by the law as it existed on the date the proceedings were instituted. The learned Judges of the Supreme Court held that the Constitution not being retrospective and there being nothing in the Constitution itself or by any other law enacted by the Parliament taking away or affecting the right of appeal already vested in the parties to such a suit, the appeal to the Supreme Court would continue to He under the law as it existed before the commencement of the Constitution. We having held that Article 133(1) of the Constitution is the sole repository of a right of appeal to the SupremeCourt from judgment, decree and final order passed in civil proceedings by the High Court and the effect of the Constitution (Thirtieth Amendment) Act, 1972, would be that civil proceedings which were instituted before the commencement of the (Thirtieth Amendment) Act and the appeals to the Supreme Court against the judgments, decrees and final orders of the High Court passed on appeal in such suits, would be governed by Article 133(1), as amended, the plaintiff-petitioners claim that he had an independent right of appeal under Section 109 of the Civil Procedure Code does not arise. The result would be that nothing would turn upon the submission that the amendment of Section 109, Civil Procedure Code was not retrospective, the plaintiff-petitioners have a right of obtaining a certificate cm the basis of valuation.

13. In Jethanand & Sons v. State of U. P., (AIR 1961 SC 794) the Supreme Court itself observed in paragraph 7 of its judgment that power under Section 109(1)(c) being expressly made subject to the Constitution, an appeal lay to the Supreme Court only against the judgments, decrees and final orders, because that was the mandate of Article 133(1) of the Constitution. It would be noticed that at one stage in Section 109, Civil Procedure Code, the words final orders' did not occur, but only word 'order' was there. Then by an amendment the word 'final' was added before the word 'order' to make it consistent with Article 133(1) of the Constitution.

14. This observation of the Supreme Court tends to show that the intention of the Parliament has always been to bring a parallelism in the two provisions so that Section 109, Civil Procedure Code merges itself into Article 133(1) and the right of appeal be spelled out under Article 133(1) alone. It was not disputed by the learned counsel for the plaintiff-petitioners that if Article 133(1) of the Constitution was the sole repository of the appeal to the Supreme Court in civil proceedings then Sub-section (2) of Section 3 of the Constitution (Thirtieth Amendment) Act, 1972, disentitles the plaintiff-petitioners from asking this court to give a certificate of appeal merely on the basis of valuation. We, therefore, reject the first contention and hold that the plaintiff petitioners have no right to obtain a certificate from this Court of the nature as was contemplated by Section 109(1)(c) of the C. P. Code as it stood prior to Act No. 49 of 1973.

15. On the second contention raised on behalf of the plaintiff-petitioners that substantial questions of law of general importance arise in the present case and they need to be decided by the Supreme Court, we find that no question which arises from our judgment needs to be considered by the Supreme Court. We need not detain ourselves on the controversy which was raised before us that even if no question of general importance arises in the case, it was emphasised by the learned counsel for the plaintiff-petitioners that the judgment of this Court has unsettled the law declared by this Court for over a period of seventy years and thus the Supreme Court which is the highest Court ought to opine upon the merits of the controversy whether in a suit under Section 92, Civil Procedure Code can a declaration be given that the property is subject to public trust and can third parties, who are in wrongful possession of the property, be dispossessed and whether the plaintiffs in a suit under Section 92, Civil Procedure Code can claim relief other than for which they have obtained permission from the Advocate General. We think, we have not unsettled any law. A report of the opinion of a Full Bench of this Court would be found in Uma Shanker v. Salig Ram, 1974 All LJ 793 = (AIR 1975 All 36) (FB). It is clear from the opinion of the Full Bench relied upon by the Division Bench deciding the appeal, that on the two important questions mentioned above, the High Court mainly confirmed its opinion on the declarations of law made by the Supreme Court. As far as this Court is concerned, apart from some minor controversies and conflicting views which have finally been resolved by the Full Bench, as best as it could, there does not appear to be any justification in characterising the judgment of this Court as unsettling a settled law which prevailed in this Court for a period of seventy years or so. Accordingly we hold that no case is made out fulfilling the requirement for the grant of a certificate that some question of law of general importance needing to be decided by the Supreme Court arises from our judgment.

This petition fails and is dismissed with costs.


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