1. This appeal has been filed against the judgment and decree of the Senior Subordinate Judge, Gurgaon, dated November 28, 1962.
2. The facts of the case briefly are that Lakshmi Narain alias Soondu (hereinafter referred to as the deceased) son of Ram Sarup alias Bhona of village Taoru Tehsil Nuh, was an occupancy tenant under section 5 of the Punjab Tenancy Act, 1887(hereinafter referred to as the Tenancy Act) in one half share of land measuring 2 bighas 13 biswas comprised in Khasra No.730 situated in that village. The plaintiff who is the nephew of the deceased was the occupancy tenant of the other half share in the aforesaid land. The deceased was required in a murder case. As he had absconded, his share in that land was attached by the Magistrate 1st Class, Gurgaon, under Section 88 of the Code of Criminal Procedure, 1898(hereinafter referred to as the Code). He was, however, arrested to 5 years' rigorous imprisonment on December 30, 1944. On appeal he was acquitted by judgment dated May 29, 1946. Lakshmi Narain deceased died issueless and the plaintiff claims that he is entitled to succeed to his property being his only legal heir. After coming into force of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953(herein after referred to as the Act), the deceased had become full owner of the said land. The plaintiff is in possession of half of the land comprised in khasra No.730 as owner and in the other half belonging to the deceased, as a tenant. The defendant is in possession of the share of the deceased as a trustee and is bound to restore it to the plaintiff who is the heir of the deceased. The suit has been contested by the defendant who denied the claim of the plaintiff. It is stated that the plaintiff ceased to be owner of one-half of the property. It is also pleaded that the suit was barred by limitation. The trial Court dismissed the suit. The plaintiff went up in appeal which was accepted by the first appellate Court. The defendant has filed an appeal in this Court against the decree of the first appellate Court.
3. The first contention of the learned counsel for the appellant is that the Civil Court had no jurisdiction to try the suit. The learned counsel for the respondent submits that the objection had not been taken by the appellant in the written statement and he cannot be allowed to take it at this stage. After hearing the learned counsel for the parties, I do not find any force in the objection of the learned counsel for the respondent. If there is inherent lack of jurisdiction in a Court, the objection can be taken even at the stage of second appeal. No further evidence is required to determine this question. In the circumstances, the question can be raised by the learned counsel for the appellant in this appeal. I am supported in the aforesaid view by a decision of this Court in Mula v. Har Narain, 1966 Pun LJ 216. The question that arises to be gone into is whether the Civil Court has the jurisdiction to try the suit. The facts of the case are not disputed. The property was attached by the Magistrate. First Class, Gurgaon, on June 9, 1924, under Section 88 of the Code, as the deceased had been declared an absconder. The appellant thereafter took possession of the property. The deceased was arrested afterwards and convicted on December 30, 1944. He went up in appeal against the judgment which was accepted and he was acquitted on May 29, 1946. This suit was instituted on May 30, 1961. The first appellate Court has held that he died 8 or 9 years prior to the institution of the suit, i.e., in 1952 or 1953. No application was filed by him for restoration of the property during his lifetime. Section 87 of the Code says that if any Court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. The property, of the absconder can be attached by the Court issuing the proclamation under Section 87 at any time, after he is declared as the proclaimed offender. Any person other than the proclaimed offender can prefer objection, regarding the attached property under subsection (6-A) of Section 88 on the ground that he has an interest in such property and that such interest is not liable to attachment under this section, to the Court by which the order of attachment was issued. Such claim shall be enquired into by the Court which may allow or disallow it in whole on in part. If the claim of any person is disallowed in whole or in part by the Court, he may within a period of one year from the date of such order institute a suit to establish the right which he claims in respect of the property in dispute. Subject to the result of such suit, if any, the order of the Court shall be final. Sub-section (6-E) of Section 88 says that if the proclaimed offender appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment. According to sub-section (7), if the proclaimed offender does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of the State Government. The aforesaid sub-section is as follows:--
'If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of the State Government, but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under sub-section (6-A) has been disposed of under that sub-section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner, in either of which cases the Court may cause it to be sold whenever it thinks fit.'
Any person whose property is or has been at the disposal of the Government under sub-section (7) of Section 88, can apply for restoration thereof under Section 89 of the Code. The said section is as follows:--
'If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (7) of Section 88, appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attended within the time specified therein such property, or if the same has been sold, the net proceeds of the sale, or if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying there out all costs incurred in consequence of the attachment, be delivered to him. The provisions for restoration of the attached property are contained in subsections (6-A) to (6-D), (6-E) of Section 88 and Section 89, of the Code. Sub-section (6-A) relates to filing of the objections of the third persons who claim interest in the attached property. The Court ordering attachment enquires into the objections and decided the matter. In case the person is aggrieved against the order of the Court, he can file a suit to establish his right in a Civil court. Sub-section (6E) of Section 88 enjoins upon the Court to release the property from attachment if the proclaimed person appears within the time specified in the proclamation. Section 89 provides that the absconder on an application can be given back his property if he proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant and that he had no notice of the proclamation.
There is no provision in the Code under which the order passed under Section 89 can be challenged by a separate suit. Reading of the aforesaid provisions clearly shows that wherever the Legislature wished that the matter decided by the criminal Court was subject to the decision of the Civil suit, that has been specifically provided in the Code. In case the Legislature wished that the decision under Section 89 of the Code should be subject to the decision of the civil Court, it could have provided so in the Code. Appeal has been provided, against the decision of the criminal Court passed under Section 89, in section 405 of the Code, which says that any person whose application under Section 89 for the delivery of the property or the proceedings of the sale thereof has been rejected by any court may appeal to the Court to which appeal ordinarily lies from the sentences of the former Court. No provision of appeal has been made from orders under sub-section (6-A) of Section 88 of the Code. From the aforesaid provisions, the only inference is that if the property of an person is attached, he has to file an application for restoration under Section 89 of the Code and in case he is aggrieved from the order of the Court, he can go up in appeal against that order. In the case of third persons who have got interest in the property, the order of the Civil Court shall be final. The remedy of a person whose property is attached, lies in filing claim under Section 89 of the Code, and not in instituting a suit against the attachment. When a remedy is provided in a particular Act and its shows that the jurisdiction of the civil Court is impliedly barred, the civil Court shall have no jurisdiction to try any suit in connection with that mater. I am fortified in the aforesaid observations by a Division Bench judgment of the Lahore High Court in Dewa Singh v Fazal Dad, Air 1928 Lah 562. It was observed therein that a proclaimed person, whose immovable property has been attached and sold by a criminal Court in proceedings under Sections 87 and 88, of the Code, has no right to maintain an ordinary civil action for the restoration of the property sold, even though the procedure laid down for issuing the proclamation and attachment have not been strictly followed. It is also observed that a civil suit for the purpose of setting aside such a sale is impliedly barred by the provisions of the Code. The learned Bench also held that it is an established principle of law that when an act of Legislature gives power to any person for a public purpose from which an individual may receive an injury, then if the mode of redress is also specified in the statute, jurisdiction of ordinary Courts will be ousted.
The learned counsel for the respondent placed reliance on Dattaji Nana Patil v. Narayanrao Bhimrao Patil, AIR 1923 Bom 198. In that case, on absconding of the plaintiff, his property was confiscated and regranted to defendant No.1. It was held that unless the plaintiff can show that he acquired title to the property since the confiscation he cannot maintain a suit for possession against defendant No 1. The aforesaid case has been considered by the division Bench in Dewa Singh's case. AIR 1928 Lah 562. The learned Bench disagreed with observations of the Bombay High Court. I am in agreement with the observations made by the learned Division Bench of the Lahore High Court.
4. The learned counsel for the respondent has then submitted that the property in dispute, namely, the occupancy rights, had not been auctioned by the State Government and was at its disposal. He also submits that, after coming into force of the Act, the rights of the landlord extinguished in the property and the deceased became full owner thereof. He urges that he deceased having become full owner of the property, could claim the same by instituting a civil suit. The property attached, i.e., occupancy rights in the property in dispute, remained at the disposal of the State Government under sub-section (7) of Section 88 of the Code. The phrase ` at the disposal of the State' means that the property attached stays under the control of the State Government and no rights in it can be transferred by any person in any way during the continuance of the attachment. Admittedly, in the present case, the occupancy rights have not been released from attachment, which continues even today. The respondent is in possession of the occupancy rights in dispute as tenant under the State Government. Section 3 of the Act conferred full ownership on the deceased. By virtue of clause (a) of Section 3, landlord's rights, title and interest in the property vested in the deceased free from all encumbrances created by the occupancy tenant on the occupancy rights also ceased to exist after it came into force. Therefore, the occupancy rights will remain at the disposal of the State Government and the Civil Court has no jurisdiction to adjudicate upon those rights. Other rights, than the occupancy rights, in the land, namely, the landlord's rights, however, vest in the plaintiff-respondent. For the reasons recorded above, the plaintiff is not entitled to the possession of the land in dispute as owner.
5. I, therefore, accept the appeal and dismiss the suit of the plaintiff-respondent with no order as to costs.
6. Appeal allowed.