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Nathu Vs. Dilbande HussaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberM.C.C. 102 of 1963
Judge
Reported inAIR1967MP14
ActsMadhya Pradesh Land Revenu Code, 1959 - Sections 250; Specific Relief Act - Sections 9
AppellantNathu
RespondentDilbande HussaIn and ors.
Cases Referred and Himmatsingh v. Pratapsingh
Excerpt:
.....whether the person complaining of dispossession or of continued unauthorised possession on the part of some one is or is not a bhumiswami and whether he has been dispossessed or whether there has been unauthorised and illegal continuation of possession of the land by the person complained against. the remedy of a suit under section 9 of the specific relief act is clearly not available to him in view of section 257 (x) of the code......bhumiswami of the disputed land, raised the objection that under section 250 of the madhya pradesh land revenue code, 1959, (hereinafter referred to as the code), read with section 267 (x) thereof, the civil court had no jurisdiction to entertain the plaintiff's suit for restoration of possession of the land. the learned trial judge found himself unable to decide the question because of divergent views expressed by this court on the question in kittu paramlal v. jamnaprasad. 1962 mplj 738, santprasad v. jawaharsingh 1963 mplj (sn) 45: sa no. 203 of 1962 d/-3-11-1962, phattelal v. nandlal 1963 mplj 292 and himmatsingh v. pratapsingh 1963 jab lj 72. he, therefore, thought it fit to refer the question for decision to this court under order 46, rule 1 c. p c. in view of the conflicting.....
Judgment:

1. This is a reference by the first Civil Judge, Second Class, Indore, under Order 46, Rule 1, Civil Procedure Code for deciding the question whether if a Bhumi-swami is dispossessed of any land held by him as Bhumiswami otherwise than in due course of law, he can file a suit under Section 9 of the Specific Relief Act, 1877, (hereinafter referred to as the Act), for recovering possession of the land.

2. The reference arises out of a suit filed by one Nathu under Section 9 of the Act against Dilbande Hussain and three other persons for possession of certain land on the allegations that he was in possession of the land in suit as Bhumiswami and that the defendant had dispossessed him without any right otherwise than in due course of law. The defendants, while admitting that the plaintiff is recorded as a Bhumiswami of the disputed land, raised the objection that under Section 250 of the Madhya Pradesh Land Revenue Code, 1959, (hereinafter referred to as the Code), read with Section 267 (x) thereof, the civil court had no jurisdiction to entertain the plaintiff's suit for restoration of possession of the land. The learned trial Judge found himself unable to decide the question because of divergent views expressed by this Court on the question in Kittu Paramlal v. Jamnaprasad. 1962 MPLJ 738, Santprasad v. Jawaharsingh 1963 MPLJ (SN) 45: SA No. 203 of 1962 D/-3-11-1962, Phattelal v. Nandlal 1963 MPLJ 292 and Himmatsingh v. Pratapsingh 1963 Jab LJ 72. He, therefore, thought it fit to refer the question for decision to this Court under Order 46, Rule 1 C. P C. In view of the conflicting decisions noted above, all of the learned Single Judges of this Court. Tare J., before whom the reference first came up for hearing, made a direction that the reference should be heard by a larger Bench Accordingly the matter has come before us for decision At the time of the hearing of the reference, the parties in the case did not appear before us and we did not have the benefit of hearing the arguments of learned counsel who appeared for them before Tare J. As the question raised in this reference is involved also in some other cases pending in this court, we requested Sarvashri S.C. Dube. G.P Singh, M.P. Shrivastava and R.K. Tankha. learned counsel appearing in those cases, to appear in this case as amicus curiae. We are indebted to them for their helpful arguments.

3. The question for determination in this reference is whether Section 250 of the Code read with Section 257 (x) thereof bars the jurisdiction of a civil court to entertain a suit under Section 9 of the Specific Relief Act for recovery of possession of an agricultural land from which a Bhumiswami has been dispossessed otherwise them in due course of law. Section 250, in so far as it is material here, runs as follows:

'250. (1) If a Bhumiswami is dispossessedof the kind otherwise than in due course oflaw or if any person unauthorisedly continuesin possession of any land of the Bhumiswami to the use of which such person has ceased tobe entitled under any provision of this Code,the Bhumiswami or his successor-in-interestmay apply to the Tahsildar for restoration ofthe possession within two years from the dateof dispossession or from the date on which thepossession of such person becomes unauthorised, as the case may be.

2. The Tahsildar shall, after making an enquiry into the respective claims of the parties, decide the application and when he orders the restoration of the possession to the Bhumiswami, put him in possession of the land.

3. The Tahsildar may at any stage of the enquiry pass under Sub-section (2) an interim order for handing over the possession of the land to the applicant, if he finds that he was dispossessed by the opposite party within six months prior to the submission of the application under this section. In such a case the opposite party shall, if necessary, be ejected under orders of the Tahsildar.' The other sub-sections of Section 250 deal with the taking of a bond for abstaining from taking possession of the land until the passing of a final order, from the person against whom an interim order under Sub-section (3) has been made, and with the award of compensation to the applicant in whose favour an order under Sub-section (2) for restoration of possession of the land has been passed Section 257 is in the following terms-

'Except as otherwise provided in this Code, or in any other enactment for the lime being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board of any Revenue Officer, is by this Code, empowered to determine, decide or dispose of and in particular and without prejudice to the generality* of this provision, no Civil Court shall exercise jurisdiction 'over any of the following matters.' Then follows a list of items, from (a) to (z-2) Item (x) is in the following words- 'any decision regarding reinstatement of a Bhumiswami improperlv dispossessed under Section 250'

4. In 1962 MPLJ 738 Shrivastava J.. held that the expression 'Except as otherwise provided in this Code, or in any other enactment for the time being in force', occurring in Section 257 of the Code, saved the effect of such provisions in other enactments; that, therefore, sections 9 of the Specific Relief Act. which specially provided for a suit by a person dispossessed without his consent of an immovable property otherwise than in due course of law, was also saved; and that thus a suit by a Bhumiswami dispossessed from a field for restoration of possession was maintainable under Section 9 of the Act. The decision of Shrivastava J., was followed in 1968 MP LJ (SN) 45 and 1968 MP LJ 292. In 1963 Jab LJ 72, which was decided some two Months after the decision in Kittu Paramlal's Case 1962 MP LJ 738 (supra), Newaskar J. express-a contrary view and held that the Civil Court had no jurisdiction to entertain a suit under Section 9 of the Specific Relief Act for restoration of possession of land to a Bhumiswami who has been dispossessed therefrom. It appears that the attention of Newaskar J., was not drawn to the decision in Kittu Paramlal's case 1962 MP LJ 738. So also the decision of Newaskar J. was not brought to the notice of the learned Single Judges deciding the later cases of Santprasad, 1963 MPLJ (SN) 45 and Phattelal, 1963 MPLJ 292 (supra).

5. In our judgment, on the language of Section 257 of the Code, there can be no doubt that a Bhumiswami, who has been dispossessed from any land held in that capacity, cannot resort to a suit under Section 9 of the Specific Relief Act for obtaining possession of the land. It will be seen that Section 257 really consists of two parts, the first being contained in the provision beginning with 'Except as otherwise provided in this Code' and ending with 'the State Government, the Board, or any Revenue Officer, is by this Code, empowered to determine, decide or dispose of', and the second being covered by the provision 'in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters'. The first limb of Section 257 is only a general provision with regard to the exclusion of certain matters from the jurisdiction of the civil court The second limb particularly specifies matters which the State Government, the Board, or any other Revenue Officer is empowered by the code to determine, decide or dispose of, and categorically says that in regard to those matters no civil court shall exercise jurisdiction The expression 'Except as otherwise provided in this Code, or in any other enactment for the lime being in force', with which Section 257 begins, relates only to the general provision contained in Section 257 and does not qualify the second limb of Section 257 particularising the matters which are outside the jurisdiction of a civil court. It is important to note that both in the first and second limb of Section 257 expressions have been used excluding the jurisdiction of a civil court. In the first part the expression used is 'no Civil Court shall entertain any suit instituted or application made (SIC)'. In the second part occurs the expression 'no Civil Court shall exercise jurisdiction over any of Ihe following matters' The repetition of these expressions about the exclusion of civil court's jurisdiction, and the use of the expression 'in particular and without prejudice to the generality of this provision', make it clear that with reference to the items included in Clauses (a) to (z-2) it is not necessary for the court to examine further whether any of these items comes within the scope of the general provision contained in the part of Section 257, and whether in regard to them there is any 'otherwise' provision in the Code or in any other enactment. In regard to the enumerated matters, there is a statutory recognition in Section 256 itself that no civil court shall exercise jurisdiction over them.

6. In none of the cases referred to above, the significance of the provision in Section 257 beginning with the expression 'in particular and without prejudice to the generality of this provision' and the enumeration of certain matters was noted. Kittu Paramlal's case 1962 MPLJ 738 was decided solely with reference to the expression 'Except as otherwise provided in this Code, or in any other enactment for the time being in force' which, as we have said above, does not control the provision in Section 257 with regard to the exclusion of civil court's jurisdiction in the matters enumerated therein. Even if it be assumed for the sake of argument that in regard to the enumerated matters also the ouster of the civil court's jurisdiction is conditioned by the aforesaid opening expression in Section 257, it cannot be held that the provision in Section 9 of the Specific Relief Act is an 'otherwise' provision giving to the civil court jurisdiction to entertain a suit in regard to a matter falling under sections 250 and 257 (x) of the Code. When Section 257 specifically enumerates certain matters as matters over which the civil court has no jurisdiction, then the 'otherwise' provision in the Code or in any other enactment giving to the civil court jurisdiction in relation to them must be in express contrary terms. The general provision contained in Section 9 of the Act cannot be read as an express provision negativing the effect of the second limb of Section 257 and giving to the civil court jurisdiction in the matter of reinstatement of a Bhumiswami dispossessed from an agricultural land otherwise than in due course of law.

7. In Kittu Paramlal's case 1962 MPLJ 738, (supra) Shrivastava J. observed that the language of Clause (x) in Section 257 showed that the jurisdiction of civil court was excluded only if a decision had been arrived at by the revenue court, and if there was no decision of the revenue court under Section 250, then the power of the civil court to try an action under Section 9 of the Specific Relief Act was preserved. We do not find ourselves in agreement with this view. The language used in various clauses of Section 257 is very involved and not a happy one. In some clauses the word 'claim' has been used; in others 'decision' has been used; and still in some others, the word 'question' has been used. If the word 'decision', as used in Clause (x), were to be understood in the sense of 'judgment of the revenue court', then the suit that would be outside the cognizance of a civil court would be strictly speaking a suit challenging the legality, validity or correctness of that decision. But such a restricted and limited ouster of civil court's jurisdiction is incompatible with the object of Section 257. The object of that provision is clearly to exclude the jurisdiction of a civil court in regard to all matters which the State Government, the Board or any Revenue Officer is by the Code empowered to determine, decide or dispose of, irrespective of the fact whether in regard to the matter there has or has not been any determination or decision of the competent revenue authority. That being so, notwithstanding the use of the word 'decision' or 'question' or 'claim' in Clauses (a) to (z-2), these words must be regarded as nothing more than describing the matters which the State Government, the Board or any Revenue Officer is by the Code empowered to determine, decide or dispose of.

8. Now, reading the various provisions of Section 250 together, it is obvious that thev provide a summary and speedy remedy through the medium of revenue courts for the restoration of possession of land to a dispossessed Bhumiswami, as also to a Bhumiswami who complains that some person continues to be in an unauthorised possession of the land even though he is not entitled to retain its possession under any provision of the Code. Such a Bhumiswami can apply to the Tehsildar for restoration of possession of the land within two years from the date of dispossession or from the date on which the possession of the person said to be continuing in unauthorised possession becomes unauthorised. By Sub-section (2) of Section 250 it is no doubt provided that the Tehsildar shall decide the application of the Bhumiswami for possession after making an enquiry into the respective claims of the parties. The enquiry that is contemplated is of a summary nature. In disposing of an application under Section 250, the Tehsildar has no doubt to decide whether the person complaining of dispossession or of continued unauthorised possession on the part of some one is or is not a Bhumiswami and whether he has been dispossessed or whether there has been unauthorised and illegal continuation of possession of the land by the person complained against. But the question, both as regards title of the Bhumiswami to the land and of possession, are not finally decided by the Tehsildar. Even after the revenue Court makes an order under Section 250, the aggrieved party has the remedy of filing a civil suit for establishing his title to the land and for obtaining possession of the same. The decision of the revenue Court cannot operate as res judicata in the civil suit; nor can Section 257 (x) of the Code stand in the way of the institution of a suit for possession of a land founded on title. What is excluded from the cognizance of a civil Court under Clause (x) of Section 257 is a suit of the type of one under Section 9 of the Specific Relief Act for restoring possession of land to a dispossessed Bhumiswami.

9. It must be noted that an aggrieved Bhumiswami is not bound to resort to the remedy provided by Section 260. This is clear from the provision in Section 250 (1) that ' the Bhumiswami or his suceessor-in-interest may apply to the Tahsildar for restoration of the possession. .....' The word 'may' means that the aggrieved Bhumiswami is not bound to avail himself of the summary and speedy remedy provided by Section 250 of the Code. He may, If he likes, straightway bring a suit in a civil Court for the establishment of his title to the land and to recover possession thereof. The word 'may' does not mean that the aggrieved Bhumiswami can at his option launch proceedings in a civil Court under Section 9 of the Specific Relief Act or in a revenue Court under Section 250 of the Code for recovery of possession of the land. But if he wishes to have the land restored to him, then he has two courses open. He can either approach the Tehsildar under Section 250 of the Code or he may bring a suit in a civil Court founded on title. But so far as the recovery of possession of land after summary enquiry is concerned, the aggrieved Bhumiswami has no option. For that remedy, he must approach the Tehsildar under Section 250 of the Code. The remedy of a suit under Section 9 of the Specific Relief Act is clearly not available to him in view of Section 257 (x) of the Code.

10. It may be mentioned that the provisions contained in sections 250 and 257 (x) of the Code are not novel or new, enacted for the first time. Section 100 of the Central Provinces Tenancy Act, 1920, gave a speedy remedy to a tenant, other than a sub-tenant, ejected from his holding to recover possession of the tend by applying to the revenue officer The proviso to that section prescribed the right of the party aggrieved by an order made under Section 100 to file a suit for establishing his title to the holding and for recovering the possession of the holding. It also expressly barred a suit under Section 9 of the Specific Relief Act. In Jiwandhar v Bakaram. ILR (1944) Nag 135 : AIR 1944 Nag 92, a Division Bench of the Nagpur High Court held that Section 100 was only an enabling provision for a tenant who did not wish a final decision on the point of title but wanted a speedy recovery of possession in a cheap manner on the prima facie record of his tenancy and the question of title could not be finally decided in the revenue case launched by the plaintiff-tenant against the landlord and a civil suit was not barred by the provisions of Section 106 of the C. P. Tenancy Ac! So also sections 91 and 92 of the Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, 1950. provided a summary and speedy remedy through the medium of revenue Courts for restoration of possession of land to a dispossessed Pakka tenant or an ordinary tenant or a sub-tenant, and Section 93 of that Act preserved the right of a party to file a suit in a civil Court for possession founded on title In connection with these provisions of the Madhva Bharat Act, it was held by the Madhya Bharat High Court in Ratansingh v Mukutsingh 1956 MBLJ 1458 that a civil Court had no jurisdiction to entertain a suit under Section 9 of the Specific Relief Act for restoration of possession of land to a dispossessed Pakka tenant or an ordinary tenant or sub tenant; and that the recovery of possession of a holding in a summary enquiry could only be under sections 91 and 92 of the Madhya Bharat Act. Newas-kar J. decided the case in 1963 Jab LJ 72 on the basis of the reasoning given in Ratansingh's case (supra). The provisions contained in Section 100 of the C. P. Tenancy Act, 1920, and sections 91 and 92 of the M. B. Revenue Administration and Ryotwari Land Revenue and Tenancy Act. 1950, and the decisions construing those provisions cannot be called in aid for construing sections 250 and 257 (x) of the' M. P. Land Revenue Code of 1959 for the simple reason that in the construction of a statutory provision reasons founded upon analogies are scarcely applicable The reference to the provisions of the C. P. Tenancy Act, 1920, and1 the M. B. Act of 1950, is only for stressing that sections 250 and 257 (x) of the Code of 1959 do not strike a radical departure from the law that was before.

11. For the above reasons, we answer thereference by saying that the remedy of a suitunder Section 9 of the Specific Relief Act for;obtaining possession of an agricultural landis not available to a Bhumiswami who has beendispossessed from that land; that such a Bhumiswami, if he wishes to have the land restored to him in a speedy manner and after asummary enquiry, must resort to the remedygiven by Section 250 of the Code; and that theview expressed in 1962 MPLJ 738, 1963 MPLJ(SN) 45 and 1963 MPLJ 292 that a dispossessed Bhumiswami can file a suit under Section 9 of the Specific Relief Act is not correct.


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