Skip to content


Tika Ram Vs. Maheshwari DIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Reference No. 28 of 1958
Judge
Reported inAIR1959All659
ActsCode of Civil Procedure (CPC) , 1908 - Sections 113; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 332B; Uttar Pradesh Land Reforms (Amendment) Act, 1956
AppellantTika Ram
RespondentMaheshwari DIn and ors.
Respondent AdvocateStanding Counsel
Excerpt:
.....- power of collector - section 332-b of u.p. zamindari abolition and land reforms act, 1951 - issue - civil court has jurisdiction to decide that whether issue be referred to collector or not - collector has no jurisdiction to sit in judgment in view of civil court remitting the issue to the collector and has to decide the issue in accordance with the provisions of sub-section 2 of section 332-b of the act. - - in adopting such a course it cannot be said that the court to which an issue had been referred failed to perform any statutory duty'.in support of this expression of opinion he has made a reference to the case of parsidhdhan singh v. p, land reforms (amendment) act, 1954, in a civil court, or if instituted before the said commencement a decree had not already been passed,..........the munsif to be that sri jain, the assistant collector, has not performed the statutory duty to decide an issue referred to the collector under section 332-b of the act and that he should be made to perform this duty by the issue of proper directions td him no reference under section 113 of the c. p. c. could be maintainable in the circumstances of this case, under section 113 c. p. c. a court can state a case and refer the same for the opinion of the high court. such an opinion is to be sought when the court itself feels some doubts about the question and not when the court has formed, an opinion and acted upon it and that opinion is disagreed with by another court. we therefore issued notice to the collector and the assistant collector to show cause, if any, against the passing of.....
Judgment:

R. Dayal, J.

1. Original suit No. 81 of 1955 for partition and possession was instituted in the court of Munsif Hamirpur on 16-2-1955. One of the issues framed in the .suit was : 'whether the plaintiff is co-sirdar of the land in suit along with defendants 1 and 2?' On 24-11-1956 this issue was remitted to the Collector Jalaun for a finding in view of the provisions of Section 332-B of the U. P. Zamindari Abolition and Land Reforms Act 1950, as amended by Section 19 of the U. P. Land Reforms (Amendment) Act (XVIII of 1956).

2. The Collector Jalaun transferred the case for disposal to the court of Sri Nem Chandra Jain, Assistant Collector, First Class. On 28-6-1957 Sri Jain returned the record without any finding on the issue referred to the court of the Munsif holding that the reference was without jurisdiction and any decision of the issue by him would be without jurisdiction.

3. The Munsif Hamirpur thereafter made this reference to this court under Section 113 C. P. C.

4. When this reference came for hearing be* fore us we considered the real grievance of the Munsif to be that Sri Jain, the Assistant Collector, has not performed the statutory duty to decide an issue referred to the Collector under Section 332-B of the Act and that he should be made to perform this duty by the issue of proper directions td him No reference under Section 113 of the C. P. C. could be maintainable in the circumstances of this case, Under Section 113 C. P. C. a court can state a case and refer the same for the opinion of the High Court. Such an opinion is to be sought when the court itself feels some doubts about the question and not when the court has formed, an opinion and acted upon it and that opinion is disagreed with by another court. We therefore issued notice to the Collector and the Assistant Collector to show cause, if any, against the passing of such orders as th0 Court considered just in the circumstances of the case.

5. Sri Jain, in his letter sent through the Additional Collector and Additional District Magistrate (Judl.), Jalaun, has tried to show that the Opinion that he formed about the jurisdiction of the Munsif to have referred that issue to the Collector was correct and has also said :'.... if it is not within the jurisdiction of a court to decide a particular issue referred by another court, then certainly the court has a right to send back the file without deciding that issue with reasons. In adopting such a course it cannot be said that the court to which an issue had been referred failed to perform any statutory duty'. In support of this expression of opinion he has made a reference to the case of Parsidhdhan Singh v. Gaya Prasad, 1957 All LJ 628.

6. The Additional Collector Jalaun has stated in his letter that the record of the civil court was returned to the remitting court as the order of Sri Jain was a judicial order and therefore could be set aside in judicial proceedings or by the High Court on a reference by the learned Munsif and that in an administrative capacity he could not have intervened in the matter.

7. We do not consider it necessary for the purposes of these proceedings to decide the question whether a reference of the issue by the Munsif to the Collector was correct in law or not as we are of opinion that the view of the learned Munsif on the question would be subject to attack on air appeal from his decree in the suit and that the Collector or the Assistant Collector was not competent to question the correctness of the view of the Munsif who had remitted the issue to the Collector for decision.

8. The Collector had. no general jurisdiction over the subject matter of dispute between the parties. His jurisdiction was limited to the decision of the issue referred in view of the provisions of Section 332-B(1) of the Act which, as it stood on 24-11-1956, read thus :

'332-B. (1) If in any suit relating to land' instituted after the commencement of the U. P, Land Reforms (Amendment) Act, 1954, in a civil court, or if instituted before the said commencement a decree had not already been passed, the question arises or is raised whether any party to the suit is or on any material date was a sirdar, adhi-vasi or asami of the land and such question has not previously been determined by a court of com-petent jurisdiction, the civil court shall frame an issue on the question and submit the record to the Collector for the decision of that issue only, Explanation : A plea of being a sirdar, adhi-vasi or asami which is clearly untenable and intended only to oust the jurisdiction of the civil court shall not be deemed to raise a question as aforesaid.

(2) The Collector after refraining the issue, if necessary, shall decide such issue only, and return the record together with his finding thereon to the civil court which submitted it.

(3) The Collector, may, instead of deciding the issue himself, transfer it to a competent subordinate revenue court which shall after refraining the same, if necessary, decide it and return the record with its finding thereon through the Collector to the civil court.

(4) The civil court shall then proceed to decide the suit accepting the rinding of the Collector or the subordinate revenue court on the issue referred to it.

(5) The finding of the Collector or subordinate) revenue court on the issues referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the civil court.'

9. This section lays down a particular procedure to follow when a plea of sirdari, asami or adhivasi rights is raised in a civil court. It is for the civil court to decide whether it has to refer an issue to the Collector or not. Its view may be wrong, but the Collector gets jurisdiction to decide the issue referred in view of Sub-section (2) of Section 332-B of the Act. He has no option but to decide the issue and return the record with his finding to the civil court. Of course, he can reframe the issue, if necessary. The civil court has no option to ignore the finding of the Collector. It has to accept it and to decide the suit accepting that finding. Further, such a finding of the Collector is deemed to be part of the finding of the civil court in view of Sub-section (5) of Section 332-B, of the Act. We are therefore of opinion that the Collector or the Assistant Collector has no jurisdiction to sit in judgment on the view of the civil court remitting the issue to the Collector and has to decide that issue in accordance with the provisions of Sub-section (2) and (3) of Section 332-B of the Act.

10. For the reasons stated above, we, with respect, do not agree with the view expressed by Mr. Justice V. D. Bhargava in (1957 All LJ 628). referred to by the Assistant Collector in support of his view. That case came to this Court in a revision under Section 115 C., P. C., and the learned Judge held that no application lay under that section. He however proceeded to express his opinion on the merits and held that the question of adhivasi right ceased to be a question of title during the pendency of the remitted issue in the civil court on the promulgation of the U. P. Land Reforms (Amendment) Ordinance 1954 in view of its- Section 5. The jurisdiction of the civil court under Section 332 of the Act was not to decide any question of title but was to decide an issue referred to it by the revenue court and this jurisdiction did not cease by a subsequent provision that a question of adhivasi right ceased to be a question of title.

11. We therefore set aside the order of Sri Jain dated 28-64957 and direct that the record of the case be sent to the Collector Jalaun for the decision of the aforesaid issue. We make it clear that he will be competent to make it over for decision to an Assistant Collector, First Class.


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