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Dilawar Ally Khan Vs. Omrunissa Bibee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal350
AppellantDilawar Ally Khan
RespondentOmrunissa Bibee and ors.
Excerpt:
land registration act (beng. act vii of 1876), sections 52 and 55 - declaratory decree--specific relief act (i of 1877), section 42--jurisdiction of civil courts--possession, confirmation of. - .....to put the plaintiff out of possession,' and if this were so, he certainly could not maintain the present suit, regard being had to the provisions of section 42 of the specific belief act. if, however, the order were made under the provisions of section 52, the act gives to the order no such force. we think that although an order made under this section may be some evidence of possession, yet in the absence of any express provision of the legislature, we cannot say that it is conclusive on the question of possession. in the present case it does not appear on the face of the order under what section it was made, and we think we should not be justified in presuming against the plaintiff that it was made under section 55 rather than under section 52. we must therefore regard the.....
Judgment:

Field, J.

1. This case arises out of a proceeding under the Land [Registration Act (Beng. Act VII of 1876), The plaintiff alleges that he is entitled to a 9 annas 11 gundas 1 krant 1 dunt share in kismut Dariapur, and he makes title to this share, as to 8 annas by purchase out of his private funds, and as to 1 anna 11 gundas 1 krant 1 dunt share by inheritance.

2. The contention on the other side is, that he is entitled by inheritance alone and not by purchase; and that his proper share is therefore twice 1 anna 11 gundas 1 krant 1 dunt. The plaint, after setting out the registration proceedings, proceeds as follows: 'I pray that the Court will be pleased to pass a decree reversing the order for registration of names in respect of the 8 annas share purchased and held by me exclusively out of 9 annas 11 gundas 1 krant and 1 dunt share of the above talook; amending the said order as regards the remaining share, directing my name to be registered with respect to the aforesaid 9 annas 11 gundas 1 krant and 1 dunt share and awarding me my costs. I beg to bring this suit by naying a Court-fee stamp of the value of Rs. 10.'

3. It has been pointed out on more than one occasion that the Civil Courts have no jurisdiction to make a decree, reversing an order for the registration of the name of any person made by a registering officer appointed under Beng. Act VII of 1876. All that the Civil Courts can do is to declare the title of an individual, or to give him a decree for possession; and the registration officers, as a matter of course, would then proceed to amend their registers in accordance with the rights of the parties as settled by the Civil Courts. The present plaint does not ask in so many words for confirmation of title; but the suit has been treated in the Courts below as a declaratory suit; and the Court-fee stamp has been paid accordingly.

4. It is now contended before us that the plaintiff was not entitled to maintain this suit. It is said that the effect of the registration proceedings was to put him out of possession, and that, not being in possession, he is not at liberty to bring a suit under the provisions of Section 42 of the Specific Relief Act having for its object the declaration of his title merely. There can be no doubt that if the result of the registration proceedings was to put plaintiff out of possession, this contention must be successful. But after examining those proceedings, we come to the conclusion that it is not possible in the present case to give any such effect to what was done by the registering officer. Under the provisions of Section 52 of Beng. Act VII of 1876, ' the Collector shall consider any objections which may be advanced, and make such further enquiry as appears necessary to ascertain the truth of the alleged possession of succession to, or transfer of the estate, revenue-free property, or interest therein in respect of which registration is applied for, and if it appears to the Collector that the possession exists, or that the succession or transfer has taken place, and that the applicant has acquired possession in accordance with such succession or transfer, but not otherwise, the Collector shall order the name of the applicant to be registered.' Under the provisions of Section 55: 'If the applicant's possession of succession to, or acquisition by transfer of, the extent of interest in respect of which he has applied to be registered is disputed by or on behalf of any person making a conflicting claim in respect thereof, and if the possession of the applicant in accordance with his application is not proved to the satisfaction of the Collector, the Collector shall determine summarily the right to possession in respect of the interest in dispute, and shall deliver possession accordingly, and shall make the necessary entry in the registers.' Under Section 55 there is also an alternative proceeding providing for a reference to the Civil Court. No such reference was made in the present case, and therefore it is unnecessary to consider the effect of this provision. We now turn to Section 57, which provides that every order of a Collector passed under the first Clause of Section 55 shall be of the same force and effect as an order passed by the Judge under Section 4 of Act XIX of 1841, determining summarily the right to possession and delivering possession accordingly.' It is to be observed that no such effect is given to an order made under the provisions of Section 52. Now, if the order in the present case had been made under the provisions of Section 55, we would be compelled to say that the result of that order in accordance with the provisions of Section 67 would be to put the plaintiff out of possession,' and if this were so, he certainly could not maintain the present suit, regard being had to the provisions of Section 42 of the Specific Belief Act. If, however, the order were made under the provisions of Section 52, the Act gives to the order no such force. We think that although an order made under this section may be some evidence of possession, yet in the absence of any express provision of the Legislature, we cannot say that it is conclusive on the question of possession. In the present case it does not appear on the face of the order under what section it was made, and we think we should not be justified in presuming against the plaintiff that it was made under Section 55 rather than under Section 52. We must therefore regard the Collector's order merely as evidence of possession, which the Courts below were at liberty to consider along with the other evidence in the case. The Subordinate Judge has found, as a matter of fact, that the plaintiff is in possession of the share which he claims, and having so found it certainly was competent to him to make the declaratory decree against which the present appeal has been preferred. We come, therefore, to the conclusion that there are no grounds upon which we can interfere with the decision of the Court below, and we, therefore, dismiss this appeal with costs.


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