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Nichaldas Wadhuram Vs. Askaran Chopda - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 124 of 1959
Judge
Reported inAIR1960MP127
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9; Madhya Pradesh Land Revenue Code, 1954 - Sections 169, 169(2) and 170
AppellantNichaldas Wadhuram
RespondentAskaran Chopda
Appellant AdvocateA.D. Deoras, Adv.
Respondent AdvocateV.S. Dabir, Adv.
DispositionRevision dismissed
Cases ReferredJoy Chand Lal v. Kamalaksha Chaudhuri
Excerpt:
.....and sitting singly i am bound by the same. ordinary tenant on the basis of the said lease deeds, he has clearly no case for filing the application under section 169 of the madhya pradesh land revenue code, 1954, as the said leases are for non-agricultural purposes......no. 18-a of 1959 refusing to stay the trial of the suit as required by section 170 of the m. p. land revenue code, 1954 (ii of 1955).2. the non-applicant holds khasra nos. 429 and 430 in malik makbuza right. by registered lease deeds dated 25-4-1950 and 23-4-1952, the applicant took certain parcels uf land from the said fields out lease on a monthly rent of rs. 300/-. the leases were to commence from 5-1-1951 and 5-1-1952. as the lease dated 23-4-1952 was to expire on 4-1-1955, the non-applicant wanted the applicant to vacate the plot. but, by a registered deed, dated 2-3-1955, the lease was extended upto 4-1-1957. the leases were obviously for a non-agricultural purpose as the deeds clearly show. they contained a condition that the lessee would vacate the sites and remove all.....
Judgment:
ORDER

P.K. Tare, J.

1. This revision under Section 115 of the Civil Procedure Code is by the defendant against the order dated 31-1-1959 passed by Shri P. D. Saxena, Second Civil Judge, Class II, Raipur in civil suit No. 18-A of 1959 refusing to stay the trial of the suit as required by Section 170 of the M. P. Land Revenue Code, 1954 (II of 1955).

2. The non-applicant holds khasra Nos. 429 and 430 in malik makbuza right. By registered lease deeds dated 25-4-1950 and 23-4-1952, the applicant took certain parcels uf land from the said fields out lease on a monthly rent of Rs. 300/-. The leases were to commence from 5-1-1951 and 5-1-1952. As the lease dated 23-4-1952 was to expire on 4-1-1955, the non-applicant wanted the applicant to vacate the plot. But, by a registered deed, dated 2-3-1955, the lease was extended upto 4-1-1957. The leases were obviously for a non-agricultural purpose as the deeds clearly show. They contained a condition that the lessee would vacate the sites and remove all superstructures at the expiry of the lease. The non-applicant served notices requiring the applicant to vacate the sites after removal of the superstructures. As the applicant failed to vacate, the present suit for ejectment was filed on 21-10-1957.

3. The applicant has not as yet filed any written statement in the suit. On 14-2-1958, he filed an application for stay of the civil suit under Section 170 of the M. P. Land Revenue Code, 1954 on the ground that, as lie had applied to the Collector on 1.1-2-19581 praying for declaration of his right under Section 169 of the M. P. Land Revenue Code, 1954, the present suit for ejectment could not be continued.

4. The learned Judge of the Court of trial refused to stay the trial of the suit, as in his opinion the application filed in the Revenue Court was not bona fide.

5. The learned counsel for the applicant urged that the Civil Court has no jurisdiction to decide whether the application filed in the Revenue Court is bona fide or otherwise. He pointed out that it was the exclusive jurisdiction of the Revenue Court to adjudicate upon the rights of the applicant as an ordinary tenant. In this connection the learned counsel relied on Ebrahim Aboobakar v. Custodian General of Evacuee Property, New Delhi, AIR 1952 SC 319 and Chaube Jagdish Prasad v. Gauga Prasad Chaturvedi, AIR 1959 SC 492. He urged that the Revenue Court is a tribunal of the category, which has the jurisdiction to decide questions of its own jurisdiction and, therefore, the Civil Court could not deal with the matters that were within the exclusive jurisdiction of the Revenue Court.

6. In this case there is no question of the Civil Court exercising any powers regarding matters, which are within the exclusive jurisdiction of the Revenue Court. Section 168 of the Madhya Pradesh Land Revenue Code, 1954 defines an ordinary tenant as follows :

'Any person who holds land for agricultural purposes from a tenure-holder and who is not in occupancy tenant under Section 169 or a protected lessee under the Berar Regulation of Agricultural Leases Act, 1951, shall be an ordinary tenant of such land.

Explanation.--For the purpose of this section-

(i) any person who pays lease money in respect of any land in the form of crop share shall be deemed to hold such land;

(ii) any person who cultivates land in partnership with the tenure-holder shall not be deemed to held such land;

(iii) any person to whom only the right to cut grass or to graze cattle or to grow singhara (Trapa bispinosa) or to propagate or collect lac is granted in any land shall not he deemed to hold such land for agricultural purposes.'

The necessary condition for the operation of the section is that the person should hold land for agricultural purposes from a tenure holder. Section 169 of the Code confers powers on the Collector to declare an ordinary tenant as an occupancy tenant on the ground of habitual sub-lease. Further Section 170 of the Code provides as follows :

'(1) When an application has been made to the Deputy Commissioner under Sub-section (2) of Section 169, by an ordinary tenant, any suit, appeal or other proceedings then pending before a Civil Court for ejectment of such person from the land shall be suspended until the Deputy Commissioner has disposed of the application.

(2) If the Deputy Commissioner gives a declaration under Sub-section (2) of Section 169, any suit, appeal or other proceedings suspended under the provisions of Sub-section (1) shall be dismissed.'

The essential pre-requisite of a stay of a civil suit or appeal is that there should be an application under Section 169 (2) by an ordinary tenant filed before the Collector. If the application be not by an ordinary tenant, the jurisdiction of the Civil Court to proceed with the suit would not be ousted. In order that there should be an ordinary tenant, he should hold land from a tenure-holder for agricultural purposes. The Civil Court can certainly enquire into the pre-requisite conditions to ascertain whether it should stay its hands to enable the Revenue Court to adjudicate upon the matter in dispute. If the Civil Court finds that the pre-requisite conditions are absent, it is not bound to stay the suit under Section 170 of the Madhya Pradesh Land Revenue Code, 1954.

7. In Govindprasad v. Pawankumar, ILR (1952) Nag 444: (AIR 1952 Nag 278) (FB), the claims officer had intimated the High Court that an application for determination of the secured debts under Section 19 (1) of the M. P. Abolition of Proprietary Rights Act No. 1 of 1951, was pending before the Claims Officer. Therefore, the High Court was required to stay the hearing of the appeal till the decision by the Claims Officer. This is what the learned Judges of the Full Bench observed:

'Thus according to the learned Judges, the conditions essential for creating and raising the jurisdiction of a tribunal or the restraints attaching to the mode of exercise of that jurisdiction are included in the conception of jurisdiction, though the extent to which they may be included is sometimes a question of nicety. In our opinion, therefore, the decision of the Full Bench lends support to the view taken by Grille C.J. and Hidayatullah J. in Krishna v. Udhaorao, ILR (1946) Nag 786: (AIR 1947 Nag 78) and Netram v. Laxman, ILR (1948) Nag 142: (AIR 1948 Nag 409) respectively.

We would point out that there is a clear distinction between the jurisdiction of the Court to try and determine a matter, and the erroneous action of such Court in the exercise of that jurisdiction. The former involves the power to act at all, while the latter involves the authority to act in the particular way in which the Court does act. Therefore, the question whether a condition necessary for the exercise of that power exists or not is a matter included in the conception of jurisdiction and is not related to the exercise of jurisdiction ...........

The power of a Civil Court to examine into cases where the provisions of the Act are said not to have been complied with necessarily involves the power to ascertain whether the facts upon which the jurisdiction of a special tribunal is claimed exist or not. In our judgment, this decision of their Lordships also affords support to the view taken by Grille C.J. and Hidayatullah J. Upon a consideration of the authorities our view is that a Civil Court has power to ascertain whether conditions which are pre-requisite for the exercise of its jurisdiction by the special tribunal exist or not. The power under Section 20 of the M. P. Abolition of Proprietary Rights Act is not exercisable if there does not exist a secured debt. Therefore, where a certificate was issued in a case in which there is no secured debt or claim, the Civil Court can question the jurisdiction of the Claims Officer to issue the certificate.'

Although there may be conflicting views on this question, the controversy, in my opinion, is settled by the decision of the said Full Bench. Had it not been for the Full Bench case. I would have been inclined to refer the matter for consideration by a larger bench. But, in my opinion, the question involved in the present case is fully covered by the observations of the Full Bench. It is not for the Civil Court to ascertain whether an application filed by a party before the special tribunal is bona fide or otherwise. But it is always open to the Civil Court to see if the pre-requisite conditions for the exclusion of the jurisdiction of the Civil Court are existing or not. If the Civil Court finds the pre-requisite conditions existing, it has to stay its hands in the matter of trial of the suit. But if the pre-requisite condition be wanting, the Civil Court is not bound to stay the trial of the suit. In the present case, as the application made to the Collector was not by a person holding land for agricultural purposes, the Civil Court was not bound to stay the trial of the suit.

8. The principle laid down by their Lordships of the Supreme Court in AIR 1952 SC 319 (supra) and AIR 1959 SC 492, is about interference with the decisions of the special tribunals. The exact question involved in the present revision was not for consideration before their Lordships. The question came up for consideration before their Lordships of the Privy Council in the Secy, of State v. Mask and Co.. ILR (1940), Mad 599: (AIR 1940 PC 105). Their Lordships no doubt laid down that where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it the party must adopt the form of remedy given by the statute and has no right to resort to the Civil Courts. But their Lordships further pointed out at p. 614 (of ILR Mad): (at p. 110 of AIR):

'It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well-settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where provisions of the Act have not been complied with, or the statutory tribunals have not acted in conformity with the fundamental principles of judicial procedure.'

Those observation of their Lordships of the Privy Council have not been dissented from by their Lord ships of the Supreme Court. In AIR 1952 SC 319 (supra), the question was about the issuing a writ of certiorari against the decision of a special tribunal, namely, the Custodian General of India. While the question in AIR 1959 SC 492 (supra) was about the jurisdiction of the Civil Court regarding fixation of rent under Section 5 (4) of the U. P. (Temporary) Control of Rent and Eviction Act No. 3 of 1947; This is what their Lordships of the Supreme Court laid down in AIR 1959 SC 492 (supra):

'The only question to be decided in the instant case is as to whether the High Court had correctly interfered under Section 115, Civil Procedure Code, with the order of the Civil Judge. As we have held above, at the instance of the landlord the suit was only maintainable if it was based on the inadequacy of the reasonable annual rent and for that purpose the necessary jurisdictional fact to be fount was the date of the construction of the accommodation and if the Court wrongly decided that fact and thereby conferred jurisdiction upon itself which, it did not possess, it exercised jurisdiction not vested in it and the matter fell within the rule laid down by the Privy Council in Joy Chand Lal v. Kamalaksha Chaudhuri, 76 Ind App 131: (AIR 3949 PC 239), (supra). The High Court had the power to interfere and once it had the power it could determine whether the question of the date of construction was rightly or wrongly decided. The High: Court held that the Civil Judge had wrongly decided that the construction was of a date after 30-6-1946 and therefore fell within Section 3-A.'

In view o the principles laid down by their Lordships of the Privy Council and their Lordships of the Supreme Court, the view of a Full Bench of this Court in ILR (1952) Nag 444: (AIR 1952 Nag 278) (supra) cannot be said to have been disapproved of in any manner, and sitting singly I am bound by the same.

9. The lease deeds, on which the learned counsel for the applicant relied, are in writing and registered. They are undoubtedly for a non-agricultural purpose. If the applicant claims the status of an. ordinary tenant on the basis of the said lease deeds, he has clearly no case for filing the application under Section 169 of the Madhya Pradesh Land Revenue Code, 1954, as the said leases are for non-agricultural purposes. At the time of arguments, it was not pointed Out by the learned counsel for the applicant that the applicant was claiming rights on the basis of any other lease for an agricultural purpose. Therefore, following the Full Bench case, I hold that the Civil Court was not bound to stay the trial of the suit as required by Section 170 of the Code. I, therefore, agree with the conclusion of the trial Judge, though for different reasons.

10. For the reasons aforesaid, this revision, therefore, fails and is dismissed with costs. Counsel's fee Rs. 25, if certified,


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