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Faqir Mohammad Khan Vs. Hari Shankar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All638
AppellantFaqir Mohammad Khan
RespondentHari Shankar and ors.
Excerpt:
- - 8. as regards the question whether the landlord had any case on the merits, the learned district judge appears to have very clearly accepted the position that he (the landlord) was entitled to claim an exemption of his groves from sale. the learned judge, in my opinion, was perfectly right in holding that no such bifurcation of the rights of the landlord could be made after the debt redemption act, and that the groves including the lands-and as much as the trees-were exempt from attachment and sale in these proceedings......in certain proceedings under the encumbered estates act. the order in question was passed by the learned district judge of farrukhabad dismissing an appeal by the land-lord against an order of the special judge, 2nd grade of that place, rejecting his application praying that a certain previous application of his be decided on the merits. the relevant facts are these.2. before the passing of the debt redemption act on 1st january 1941, the landlord appellant has applied under section 4, encumbered estates act, and the proceedings eventually came before the learned special judge who passed a decree against him in favour of the respondents, which was sent to the collector for execution. the schedule of properties owned by the appellant included some groves which were published as forming.....
Judgment:

Mushtaq Ahmad, J.

1. This is a landlord's appeal against an order in certain proceedings under the Encumbered Estates Act. The order in question was passed by the learned District Judge of Farrukhabad dismissing an appeal by the land-lord against an order of the Special Judge, 2nd grade of that place, rejecting his application praying that a certain previous application of his be decided on the merits. The relevant facts are these.

2. Before the passing of the Debt Redemption Act on 1st January 1941, the landlord appellant has applied under Section 4, Encumbered Estates Act, and the proceedings eventually came before the learned Special Judge who passed a decree against him in favour of the respondents, which was sent to the Collector for execution. The schedule of properties owned by the appellant included some groves which were published as forming part of List B in the local gazette. Subsequently, after the Debt Redemption Act had come into force, the appellant, on 18th August 1942, applied to the Special Judge that the groves might be transferred from List B to List A, and be treated as property not liable to be attached and sold by virtue of that Act. This application was rejected by the learned Judge on the ground that he had no jurisdiction to entertain it, the matter, according to his opinion, being for the Collector exclusively.

3. An application in revision filed against the above order was dismissed by the learned District Judge on the ground that no such re. vision lay to him, although, at the same time, he observed that the Special Judge had jurisdiction to entertain the application of 18th August 1942.

4. Encouraged by the above observation, the appellant then moved the Special Judge by an application dated 7th August 1943, praying that his request for the exemption of the groves, of which admittedly he was the proprietor, from List B and their inclusion in List A be considered on the merits. This application, in its turn, was also refused by the learned Special Judge, though not this time on the ground of want of his jurisdiction, but on the merits. The basis for rejecting the application was that the saleable properties of the landlord having already been published in the gazette under 3. 11, Encumbered Estates Act, it was not now open to him to seek any alteration in the schedule of those properties.

5. Against the above order, an appeal was filed to the District Judge, who dismissed it on the ground that he had no jurisdiction to entertain, an appeal or even a revision, although, he observed, that in his opinion the groves in question being the landlord's proprietary groves were protected under the Debt Redemption Act, as held in certain rulings of this Court, despite the fact that the rulings of the Board of Revenue were to the contrary. The present second appeal is directed against this order.

6. The only ground on which the learned District Judge based his opinion on the question of the absence of his jurisdiction was that according to him, the order of the Special Judge dated 7th August 1943, was not an order 'finally disposing of the case of a Special Judge' within the meaning of Section 45 (2), Encumbered Estates Act. The learned Judge rightly held that the word 'case' in that section had a very wide and comprehensive meaning. He rightly noticed that, while the word 'suit' had a much narrower connotation, the word 'case' comprised even such proceedings as might not be covered by the word 'suit.' He, at the same time, was of opinion that the order passed by the Special Judge did not satisfy this particular condition. It is, to my mind, difficult to follow the reasoning of the learned Judge in taking this view and holding that the 'case' did not come within the ambit of Section 45. In the course of his discussion, the learned Judge remarked that

if the appellant was aggrieved by the order of the Special Judge, that is his groves were liable to sale and attachment he should have appealed against that order under Section 45, but did not care to do so.

It is not clear which 'order' the learned Judge meant in the above observation. If he meant the order by which the list of properties had been sent for publication in the gazette, he certainly overlooked that that was long before the Debt Redemption Act came into force on 1st January 1941, so that the landlord had no right then of raising any such question as he is doing now. If, on the other hand, he meant the order of 19th September 1942, I have already mentioned that order was challenged by way of revision, though the learned District Judge found that no revision lay to him. Surely, if the learned Judge was of the view that an appeal did not lie, he might have treated the revision itself as an appeal after the landlord had paid the necessary court-fees.

7. I have given anxious thought to this matter and have come to the conclusion that the order of the Special Judge dated 7th August 1943, in as much as it purported to decide a matter of an entirely independent nature raised by the land. lord's application of even date, it was certainly an order 'finally disposing of the case of a Special Judge' and that as such, an appeal lay against it to the learned District Judge.

8. As regards the question whether the landlord had any case on the merits, the learned District Judge appears to have very clearly accepted the position that he (the landlord) was entitled to claim an exemption of his groves from sale. In that view, he disagreed with the order of the Assistant Collector dealing with the execution of the decree against the landlord that he was not entitled to have the trees of the groves exempted, though he could claim an exemption in respect of the land underneath. The learned Judge, in my opinion, was perfectly right in holding that no such bifurcation of the rights of the landlord could be made after the Debt Redemption Act, and that the groves including the lands-and as much as the trees-were exempt from attachment and sale in these proceedings.

9. Mr. Ghatak, learned Counsel for the appellant, challenged the judgment of the lower appellate Court on the question of its jurisdiction to entertain the appeal of the landlord. As I have already pointed out, that question depended on whether the order of the Special Judge was one 'finally disposing of the case of a Special Judge.' That order, in my opinion, being one of that class, ex-hypothesi, the landlord was entitled to challenge it by way of appeal, and, for the same reason, the learned District Judge was entitled to entertain the appeal and hear it on the merits.

10. Mr. Avasthi, learned Counsel for the respondents urged a number of grounds in support of the order of the lower appellate Court. His first point was that the landlord's application dated 7th August 1943, could not be entertained in view of the provisions of Order 20, Rule 3, Civil P.C. according to which a judgment after it had been signed, could not be altered or added to, except as provided by Section 152, Civil P.C. or on review. The answer to this contention, in my opinion, is quite simple. The application of 7th August 1943, in so far as it impliedly asked the Court to decide the preliminary point, as to whether it could entertain it in law, was certainly an application for review. The Special Judge having gone into the merits of the application would be deemed to have decided that preliminary point in the landlord's favour, and as such, there was no necessity for the landlord to file an appeal against that part of the order. So far as the point of the landlord's right to claim an exemption of the groves from sale is concerned, it was an independent request made to the Court on which there had never been any previous adjudication by it before, and to that extent the order was one finally disposing of the case of a Special Judge, This being the position, the appeal to the District Judge was not an appeal against an order rejecting a motion for review at all. The object of the appeal really was to challenge the finding of the learned Special Judge on a matter not already decided by that officer. The appeal related to an independent matter altogether and coming, as it did, within the scope of the words of Section 45 (2), Encumbered Estates Act, it was obviously competent.

11. The second point urged by Mr. Avasthi was that the rights which the landlord seeks to protect could not be protected under Section 17, Debt Redemption Act. So far as the status of the landlord as an 'agriculturist' within the meaning of that section is concerned, it seems never to have been in question between the parties at any stage of the proceedings, either in the first or in the second Court. Surely a proprietor's grove would be 'land' within the meaning of this section, and relief cannot be refused on any ground on that score.

12. The third and the last contention of Mr. Avasthi was that relief under Section 17, Debt Redemption Act could be claimed only in the Court of the Assistant Collector, who was liquidating the debt represented by the decree of the Special Judge. Now, the matter really in hand is one of transposing certain properties from one list to another on the ground of a certain statutory privilege afforded by a subsequent legislation, namely the Debt Redemption Act. Even before that enactment, Section 19, Encumbered Estates Act conferred an absolute power on the Special Judge to determine the nature and extent of the landlord's property for attachment and sale in liquidation of his debts. That, however, was in no way taken away or even curtailed by anything in the Debt Redemption Act subsequently passed. While it may be that the later Act, Section 17 of it, conferred a right on the Collector to grant relief under that section, it did not have the effect of controlling, much less of abrogating the jurisdiction of the Special Judge under Section 19, Encumbered Estates Act to pass any order determining the nature and extent of the landlord's property for the purposes of liquidation of his debts. If the legislature had any such restriction of the powers of the Special Judge in view, there would have been a clear provision for it in the subsequent Act. None such is to be found there, with the result that the jurisdiction originally conferred upon him by Section 19, Encumbered Estates Act remained in every sense intact.

13. This being my opinion on the points raised by the learned Counsel for the respondents, I think that the learned District Judge went wholly wrong in refusing to give relief to the landlord-appellant on the supposition that he had no jurisdiction to entertain his (the landlord's) appeal, holding though, at the same time, that he had an unanswerable case on the merits.

14. I, therefore, set aside the order of the lower appellate Court and remand the case to the learned Special Judge, II grade of Farrukhabad with a direction that he should consider and decide the application of the landlord dated 7th August 1943, on the merits and amend the schedule of his properties accordingly The appellant would be entitled to his costs throughout.

15. Leave to appeal under the Letters Patent is refused.


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