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Sm. Indira Debi and anr. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 135 of 1965
Judge
Reported inAIR1967Cal469
ActsTenancy Law; ;West Bengal Estates Acquisition Act, 1954 - Sections 44(2), 53, 57 and 57A
AppellantSm. Indira Debi and anr.
RespondentState of West Bengal and ors.
Appellant AdvocateR. Chowdhury and ;Chandra Nath Mookerjee, Advs.
Respondent AdvocateN.C. Chakravarti and ;B.B. Mitter, Advs.
DispositionAppeal allowed
Cases ReferredBaul Chand Sen v. Surish Chandra Sen
Excerpt:
- b.c. mitra, j. 1. this appeal is directed against a judgment and order of laik, j. dated december 23, 1964, whereby a rule nisi obtained by the appellants in an application under article 226 of the constitution, was discharged.2. certain plots of land recorded in khatian no. 140 of mouza dwarir jangal in the district of 24 parganas and included in the revisional record of rights formed part of the property owned by one rajendra chandra banerjee, since deceased. the said revisional record of rights was prepared under the west bengal estates acquisition act, 1954, (hereinafter referred to as the act). the appellants are the executors of the will of the said deceased. in course of the administration of the estate of the deceased, the appellants made various settlements of the said land and.....
Judgment:

B.C. Mitra, J.

1. This appeal is directed against a judgment and order of Laik, J. dated December 23, 1964, whereby a rule nisi obtained by the appellants in an application under Article 226 of the Constitution, was discharged.

2. Certain plots of land recorded in Khatian No. 140 of Mouza Dwarir Jangal in the district of 24 Parganas and included in the Revisional Record of Rights formed part of the property owned by one Rajendra Chandra Banerjee, since deceased. The said Revisional Record of Rights was prepared under the West Bengal Estates Acquisition Act, 1954, (hereinafter referred to as the Act). The appellants are the executors of the will of the said deceased. In course of the administration of the estate of the deceased, the appellants made various settlements of the said land and in the Record of Rights as finally published, the names of the tenants were duly recorded. It is alleged that the lands recorded in the said Khatian No. 140 were settled by the appellants, as executors of the Estate of the deceased, with one Jayanta Kumar Banerjee, long before the vesting of the estates under the provisions of the Act.

3. In April, 1963, the appellants received a notice from the respondent No. 3 under Section 57 of the Act directing them to file relevant records in connection with the settlement recorded in Khatian No. 140, as in the opinion of the respondent No. 3, the settlement was invalid. The case number given in the notice was 124 and in the notice it was specified that the case was under Section 151 of the Code of Civil Procedure.

4. This notice is dated March 27, 1963. The particulars of the case as set out at the top of the notice are as follows: --

'Case No. 124 under section 151, Civil Procedure Code

Notice

Under Section 57 of Act I of 1954. West Bengal Act for Acquisition of Zamindari rights and rights of the intermediaries.'

5. It is the validity of this notice, and the threatened proceedings under the same, that were challenged by the appellants in the writ petition. The grounds on which the validity of the notice have been challenged are;

(1) Section 151 of the Code of Civil Procedure cannot be invoked for correction or revision of a finally published record of rights.

(2) The respondent No. 3 is not a civil Court and the provisions of the Code of Civil Procedure cannot be applied by him for correction of a finally published record of rights.

(3) Proceedings for correction of record of rights cannot be initiated under Section 151 of the Code of Civil Procedure as there are specific provisions in the Act for such correction and also a right of appeal.

(4) The proceedings have been initiated arbitrarily and without jurisdiction as there is no error apparent on the face of the record of rights.

(5) Section 151 of the Code of Civil Procedure does not confer any new power or authority to revise the finally published record of rights.

(6) There is nothing to show that the respondent No. 3 has been invested with any power under Section 15 of the Code of Civil Procedure.

(7) Initiation of the proceedings under Section 151 of the Code of Civil Procedure is an abuse of the provisions of that Section.

(8) Section 151 of the Code of Civil Procedure does not confer any power and for that reason no order can he made for investing any authority to exercise any power under that Section.

6. The appellant No. 1 is the widow of the said Rajendra Chandra Banerjee and the appellant No. 2 is his son. Jayanta Kumar Banerjee in whose favour the settlement of the land recorded in Khatian No. 140 had been made, is the son of the appellant No. 2. Jayanta had been recorded in the finally published record of rights prepared under the provisions of the Act, having an interest in the land as of a Raiyat, with occupancy right, the annual rent being about Rs. 112. On June 12, 1961, the respondent No. 3 granted a certified copy of the record of rights. The said notice dated March 27, 1963, was in Bengali and it required that the appellants should file necessary papers being the particulars of their title and they were also directed to appear in person or through their empowered officer before the Respondent No. 3. A description of the necessary papers is set out in the said notice, in which it is also alleged that the lands recorded in Khatian No. 140 had been illegally settled by the appellants and that the said Khatian was never under the appellants. It was on receipt of this notice and being aggrieved thereby that the appellants moved the writ petition in which a rule nisi was issued, limited to grounds I, II and III set out under paragraph 7 of the petition. This rule nisi was discharged by Laik, J. by his judgment dated December 23, 1964, and this appeal is directed against this judgment.

7. The first contention of Mr. B. Chowdhury, learned counsel for the appellants, was that the respondent No. 3 was not a civil Court, and for that reason could not exercise the inherent powers of a Civil Court. It was argued that Section 57A of the Act, conferred upon the State Government, the power of investing any authority specified in Section 53 of the Act with all or any of the powers of a Civil Court under the Code of Civil Procedure. The inherent power of a Civil Court Mr. Chowdhury argued, was not a power created by the Code of Civil Procedure, which had merely recognised and preserved the inherent powers of the Court. Mr. Chowdhury further argued that the term 'inherent power' itself indicated that this was a power which could be exercised by a Civil Court and by no other authority. It was not a power conferred or created by statute. It was further argued that the inherent power of a civil Court was not a power under the Civil Procedure Code. That being the position. Mr. Chowdhury argued, the respondent No. 3 had no jurisdiction to exercise the inherent power of a Civil Court.

8. Mr. Chowdhury next contended that the respondent No. 3 was an authority specified in Section 53 of the Act and under Section 54(2) of the Act he could only exercise the powers under the Act and no other power. He argued that inherent power was not a power created by the Act and therefore the inherent power of a Civil Court could not he exercised by the respondent No. 3. It was contended that the respondent No. 3 was a statutory officer and he derived powers from the statute which created the office. The Act had created various powers and it is only these powers which could be exercised by the respondent No. 3. Although the respondent No. 3 was invested with all the powers under the Code of Civil Procedure, and although he was entitled to exercise the powers under the Act or any rules made thereunder he was not entitled to exercise the inherent powers of a civil Court, as such powers had not been conferred upon him.

9. The learned Government Pleader, appearing for the respondents, contended that the State Government had by an order invested the respondent No. 3 with the powers of a civil Court under the Code of Civil Procedure as required by Section 57A of the Act. He argued that all the powers of a civil Court having been conferred upon the respondent No. 3, the inherent powers of a Court could be exercised by that officer, as it was constituted a civil Court contemplated by Section 57A of the Act. Mr. Chakravarty further argued that a civil Court undoubtedly had the jurisdiction in exercise of its inherent powers, to rectify an error or a mistake in its records. The respondent No. 3 had come to the conclusion that by some interpolation, Khatian No. 140, which was in the name of one Brojoinohon Singh was converted into Khatian No. 140/1, and further interpolation had been made in Khatian Nos. 133 and 134 to show the existence of Khatian No. 140/1. Mr. Chakravarty argued that the appellants contended that the lands recorded in Khatian No. 140 were settled with one Jayanta Kumar Banerjee, but since the respondent No. 3 came to the conclusion that the original record of rights in respect of Khatian Nos. 140, 140/1, 133, 134 and 165 had been tampered with, the respondent No. 3, who had been invested with the powers of a Civil Court, was justified in commencing proceedings to rectify the mistake or error arising from the alleged interpolation or tampering with the original record of rights. Mr. Chakravarty relied upon the statements in the affidavit-in-opposition affirmed by the respondent No. 3 on September 10, 1963, in support of his contention. He argued that nothing had been done yet, except that a notice had been issued to the appellants to file necessary papers for preparation of a list of compensation, payable with regard to acquisition of Zamindaries, and the rights of the intermediaries under the Act. The issue of this notice could not be challenged as Section 57 of the Act clearly empowered the respondent No. 3 to issue a notice for production of papers and documents. This was all that was done by the respondent No. 3 so far. It was argued that the issue of the notice under Section 57 of the Act had not been challenged by the appellants in the writ petition. In issuing the notice the respondent No. 3 exercised the statutory powers conferred upon him, and as he suspected that interpolation had taken place, and illegal and unauthorised entries had been made in the Khatians mentioned above, he was entitled to issue the notice and indeed it was his duty to do so.

10. It is true that Section 57 of the Act confers upon a revenue officer the power to compel the production of statements and documents and to enforce attendance of witnesses. It is also true that the notice dated March 27, 1963, had been issued under that Section. But production or filing of documents and records as contemplated by Section 57 of the Act must be for a purpose or object. Such production is not an end in itself, but it is a means to an end, and the end or object contemplated by the notice are preparation of a correct record of rights in connection with the acquisition of Zamindaries and rights of intermediaries, and preparation of a list of compensation payable in respect thereof. The notice, however, further proceeded to provide a description of necessary papers and in such description the appellants were charged with illegal settlement of the land in Khatian No. 140 to Jayanta Kumar Bandopadhyay. This charge against the appellants was, made in the following terms:---

'Khatian No. 140 of Mouza Dwarir Jangal, J.L. No. 37, under Thana Sandesh Khali is a Khatian under you, which it appears has been illegally settled by you and which never was under you. So on appearing with proof etc. of your granting settlement to tenants of Khatian No. 140, in the name of Jayanta Kumar Bandopadhyay son of Satish Chandra Bandopadhyay, you will get your subordinate interest correctly recorded.

11. The material portion of the impugned notice set out above, makes it plain that the production and filing of the documents required by the respondent No. 3 was for the objects specified therein. Mr. Chakravarti's contention therefore, that the production of records under Section 57 of the Act cannot be challenged, because it was made in exercise of the statutory power conferred upon the respondent No. 3, cannot be sustained. Mr. Chowdhury contended that the object of the notice was rectification of the record of rights, which according to the respondent No. 3. had been interpolated with the result that settlement of certain lands in Khatian No. 140 was found to have been illegally made in favour of Jayanta Kumar Banerjee. The question is, can such rectification or correction of the record of rights be made by the respondent No. 3 in exercise of the inherent powers of a civil Court, which have been preserved and recognised by Section 151 of the Code of Civil Procedure? There is no doubt that the respondent No. 3 seeks to rectify the record of rights in exercise of the inherent powers of a Civil Court. Indeed the respondent No. 3 appears to have gone very much further, as he states in the affidavit-in-opposition affirmed by him on September 10, 1963, that in the matter of the alleged interpolation in the original record of rights he even started an enquiry under Section 151 of the Code of Civil Procedure. It is clear, therefore, that the respondent No. 3 not only proposed to rectify the records in exercise of the inherent powers of a Civil Court, but as an administrative officer he started an enquiry into the alleged interpolation in exercise of the inherent powers of a Civil Court.

12. Mr. Chowdhury's contention, however, that the respondent No. 3 cannot in any circumstances exercise the inherent powers of a Civil Court by virtue of Section 57A of the Act cannot be accepted by us, in the form in which it has been advanced. If a statute confers upon an authority the power of a civil Court, it cannot be said that the authority invested with such powers, should exercise all the powers of a civil Court other than the inherent power. It is true that Section 57A of the Act confers upon the authority the powers of a civil Court under the Code of Civil Procedure, and the inherent power of a civil Court has not been created by the provisions of the Code of Civil Procedure. The authority which obtains powers of a civil Court under Section 57A of the Act should also get the benefit of the preservation and recognition of the inherent power of a civil Court by Section 151 of the Code of Civil Procedure. But even though the statute confers upon an authority all the powers of a civil Court including the inherent power, different considerations will apply to justify the exercise of the inherent power by such an authority. If such an authority is to exercise the inherent power of a civil Court, it must be exercised subject to all the limitations under which such inherent powers can be exercised by a civil Court. I shall, however, revert to this subject later in this judgment.

13. In support of his contention that Section 151 of the Civil Procedure Code did not create or give to the civil Courts any new powers but only provided for preservation of the inherent powers of the court, Mr. Chowdhury relied upon a decision of the Judicial Committee in Emperor v. Nazir Ahmad and a decision or the Supreme Court in State of Uttar Pradesh v. Mohammad Naim, : [1964]2SCR363 .

In both these cases the effect of Section 561A of the Code of Criminal Procedure was considered and it was held that the inherent power which the Court possessed was preserved by that Section, lest it be considered that the only powers possessed by the Court were those expressly conferred by the Code and that no inherent powers survived the passing of the Code. Section 561A of the Criminal Procedure Code preserves the inherent powers of the Court in criminal matters, just as Section 151 of the Code of Civil Procedure preserves such powers in the civil matters. Mr. Chowdhury argued that Section 151 of the Code of Civil Procedure did not create any new powers for Civil Court but merely preserved the same. This contention of Mr. Chowdhury is well founded.

14. The trial Court, however, held that revenue officers were not civil Courts, but functioned as quasi judicial tribunals and their decisions were quasi judicial in nature. It was also held that as a quasi judicial tribunal the exercise of inherent powers of a civil Court by the Respdt. No. 3 was justified. In our opinion, this view of the trial Court cannot be upheld. A quasi Judicial tribunal cannot claim or exercise the inherent powers of a civil Court, unless a statute has conferred all the powers of a civil Court on such a tribunal. Such a tribunal cannot be equated to a civil Court except on authority of law. Unless, therefore, the statute confers upon such quasi judicial tribunal all the powers of a civil Court either expressly or by implication, the inherent powers of a civil Court cannot be exercised by such a tribunal.

15. It was next contended by Mr. Chowdhury that the powers of a statutory authority or corporation are limited and circumscribed by the statute by which such authority or tribunal is created. In support of this contention Mr. Chowdhury relied upon Halsbury, 3rd Ed. Vol. 9, p. 62, Art. 129 and a decision of this Court reported in ILR (1944) 2 Cal 101: (AIR 1946 Cat 23) and a decision of the Patna High Court reported in AIR 1959 Pat 369 (?). In my opinion the principle that statutory corporations and authorities can exercise only such powers as had been conferred upon them, is of no assistance to the appellants in this case. As I have noticed earlier, all the powers of a civil Court had been conferred upon the respondent No. 3, which, therefore, could exercise the inherent powers of a civil Court, subject to this limitation that the exercise of such inherent powers could be justified in the circumstances of the case.

16. Mr. Chakravarty relied upon a Bench decision of this Court in Sudhakar Mukherjee v. Gofur Sheikh, : AIR1959Cal386 , in support of his contention that the inherent power of a Civil Court could be exercised by the respondent No. 3. In that case an appeal was preferred to the Tribunal under Section 44(3) of the Act, against a decision of the revenue officer rejecting an objection to certain entries in the record of rights. While the appeal was pending an application was made for an order of temporary injunction restraining the recorded owners from dispossessing or causing any obstruction to the appellant's peaceful possession, and the Tribunal issued the temporary injunction prayed for. Section 55(2) of the Act provides that a Tribunal shall have all the powers of a Civil Court under the Code of Civil Procedure, and the question was whether the Tribunal could issue an order of injunction, even though Order 39 Rules 1 and 2 did not apply. It was held that the Tribunal did not exercise a judicial discretion in issuing an order of injunction and had acted illegally in issuing an order of injunction. It was, however, observed that even if the provisions of Section 151 of the Code of Civil Procedure were not strictly applicable, the inherent powers of a Civil Court still remained and the Tribunal could in an appropriate case make such an order for injunction. These observations appear to be obiter having regard to the fact that it was held that the exercise of the inherent jurisdiction by the Tribunal was illegal. This decision, is my opinion, is of no assistance to Mr. Chakravarty, because in the first place, it was not held that Section 151 of the Code of Civil Procedure was applicable, secondly, it was held that the provisions of Order 39 Rules 1 and 2 did not apply and thirdly, in the facts of that particular case, it was found that the order of injunction was illegally made.

17. The next contention of Mr. Chowdhury was that even assuming that the respondent No. 3 had the inherent powers of Civil Court, such powers could neither be invoked, nor exercised in this case, as the statute had made specific provision for revision of the record of rights even after final publication. It was argued that the exercise of inherent powers by a Civil Court would be wholly without jurisdiction if there was statutory provision for making the order, which was sought to be made in exercise of the inherent powers of the Court. The inherent powers of the Court, Mr. Chowdhury argued, could be exercised only for the ends of justice, and if the ends of justice could be met by exercise of statutory powers, the resort to inherent powers of a Civil Court would be entirely without jurisdiction.

18. The respondent No. 3 is seeking to rectify certain entries in the record of rights alleged to have been made by tampering with the records and by making interpolations therein. It was argued by Mr. Chowdhury that assuming that the allegations of interpolation and tampering with the records were true, a revision of the records could be made by the respondent No. 3, in exercise of the powers conferred upon him by Section 44(2-a). This subsection expressly confers upon an officer empowered by the State Government to revise an entry in the record finally published, either on the application of a party or of his own motion. Mr. Chowdhury argued that having regard to the provisions in this sub-section, a resort to Section 151 of the Code of Civil Procedure was entirely without jurisdiction, and the respondent No. 3 could not proceed to rectify the incorrect entries in the Khatian No. 140 in exercise of the inherent powers of a Civil Court.

19. In support of this contention, Mr. Chowdhury relied upon a decision of the Supreme Court in Manohar Lal Chopra v. R. B, Rao Raja Seth Hiralal, : AIR1962SC527 . In that case the Supreme Court considered the question of inherent power of the Court to issue an order of injunction in a case in which the provisions of Order 39 of the Civil Procedure Code did not apply. In construing the effect of the term 'if it is so prescribed in Section 94 of file Code of Civil Procedure the majority view of the Supreme Court at page 582 of the report was as follows :--

'The effect of the expression 'if it is so prescribed' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued; ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunction, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so'.

Again at page 536 of the report it was held:--

''When there is special provision in the Code of Civil Procedure for dealing with contingencies of two such suits being instituted, recourse to the inherent powers under Section 151 is not justified.'

20. It is clear that the inherent powers of the Court can be invoked and exercised for the ends of justice, only if there is no other provision in law whereby the Court can make the order. But if there is a clear and specific provision in the statute, as in this case, can it be said that the respondent No. 3 is justified in taking action under the inherent powers of a Civil Court? Do the ends of justice demand that the respondent No. 3 should rectify the record of rights by invoking the inherent powers of a Civil Court in complete disregard to the provisions of Section 44(2-a) of the Act? The statute clearly contemplates that there may be occasion and necessity for revising the record of rights even after final publication, and has accordingly made provision to enable the appropriate authority to revise the record of rights. But in this case instead of taking recourse to the clear statutory provisions for the purpose of revising the record of rights, the inherent powers of a Civil Court are sought to be invoked by the respondent No. 3 for revising the record of rights.

21. Mr. Chakravarty sought to repel this contention of Mr. Chowdhury by relying upon a Bench decision of this Court in Baul Chand Sen v. Surish Chandra Sen, 19 Cal LJ 251: (AIR 1914 Cal 170). In that case an application was made for amendment of the record of rights prepared under Chapter 10 of the Bengal Tenancy Act. The applicant's contention was that there had been interpolation in the record of rights and that the initials of the Settlement Officer in the record of rights were forged. An enquiry was made and it was found that the interpolation was unauthorised and the same had not been duly attested and also that the initials of the Assistant Settlement Officer to the interpolations were forged. Thereupon the name of the recorded owner was struck out and it was noted that the action was taken under Section 108-A of the Bengal Tenancy Act. In appeal to the Special Judge it was contended that Section 108-A of the Bengal Tenancy Act had no application as it empowered a revenue officer to correct an entry in a finally published record of rights only when he was satisfied that the entry had been made owing to a bona fide mistake. The Special Judge accepted this contention and set aside the order of the Settlement Officer as having been made without jurisdiction. An appeal was preferred to this Court and a rule also was obtained against the decision of the Special Judge. It was held that Section 108-A of the Bengal Tenancy Act authorised the correction of entries which had been made owing to a bona fide mistake. But in that case, there was no bona fide mistake, but an unauthorised interpolation had been made in the record of rights and therefore it was not a case of correction of an entry made in the record of rights owing to a bona fide mistake. It was. however, held that every Court had inherent power to take steps for preservation of the accuracy of its records and therefore the Settlement Officer had the inherent authority to set the record right and it was also incumbent upon the Court to take the necessary action as soon as it had been apprised of what was a grave fraud upon the Court. The order of the Settlement Officer was upheld on the ground that it was validly made in exercise of inherent jurisdiction. Relying upon this decision, Mr. Chakravarty contended that the respondent No. 3 as a Civil Court had the inherent power to correct a mistake in the record induced by fraud, as in this case also interpolation had been made in the record of rights.

22. In our opinion, this contention of Mr. Chakravarty is not well conceived. In Baul Chand Sen's case, 19 Cal LJ 251: (AIR 1914 Cal 170) (supra) the rectification was sought to be made under Section 108-A of the Bengal Tenancy Act which conferred upon a revenue officer the power to correct an entry in the record, made by bona fide mistake. This Section had been subsequently transferred and renumbered as Section 115-B, by the Bengal Tenancy (Amendment) Act, 1928. But this Section dealt with the question of correcting an entry in the record or rights made by a bona fide mistake only, The exercise of inherent power by the Settlement Officer was upheld, because there was no provision in the Bengal Tenancy Act corresponding to Section 44(2-a) of the West Bengal Estates Acquisition Act, 1954. Section 44(2)(a) of the West Bengal Estates Acquisition Act creates very wide powers to revise the finally published record of rights for any reason whatsoever. It is not confined or restricted to the correction of entries made by bona fide mistake, as was the case under Section 108-A, (later 115-B) of the Bengal Tenancy Act,

23. The decision in Baul Chand Sen's case, 19 Cal LJ 251 : (AIR 1914 Cal 170) (supra) has therefore no application to the facts in this appeal. There was no provision in the Bengal Tenancy Aft whereby the revenue officer could correct an entry in the record of rights, except in cases where an entry had been made through a bona fide mistake. It was in these circumstances, and because there was no provision in the statute to rectify a mistake caused by fraud, that the exercise of inherent powers by the Settlement Officer was upheld. But in the instant case the statute has clearly provided for revision of the record of rights for any reason whatsoever, even after final publication of such records. We cannot, therefore, accept Mr. Chakravarty's contention that the respondent No. 3 should be allowed to exercise the inherent powers of a Civil Court to rectify a mistake in the record of rights in complete disregard of the provisions in Section 44(2-a) of the Act.

24. The trial Court considered the effect of the decision of the Supreme Court in Manohar Lal Chopra's case, : AIR1962SC527 (supra), but it held that that decision did not help the appellants as it was held that recourse to the inherent powers under Section 151 was not justified as there was a special provision in the Code of Civil Procedure for dealing with the contingencies of two suits being instituted simultaneously. In our opinion, the trial Court was in error in holding that the decision of the Supreme Court in Manohar Lal Chopra's case, : AIR1962SC527 , has no application. The reasons for which the Supreme Court held in Manohar Lal Chopra's case, : AIR1962SC527 , that the inherent powers of the Court could not be invoked in that case, apply with much greater force in the appeal now before us, as there is specific provision in Section 44(2-a) for revision of the record of rights. It appears to us that the trial Court failed to consider the effect of Section 44(2-a) of the Act with regard to the claim made on behalf of the respondent No. 3 to exercise the inherent powers of a Civil Court.

25. Mr. Chakravarty next contended that this question of the exercise of inherent powers of a Civil Court by the respondent No. 3 could not be gone into by the appellants as the rule nisi was limited to grounds I, II and III set out under Paragraph 7 of the petition. But it appears to us that ground III fully covers the contention on behalf of the appellants, namely, that Section 151 of the Code of Civil Procedure could not be invoked as there was specific provision in the Act itself to enable the respondent No. 3 to revise the record of rights.

26. It was next argued by Mr. Chakravarty that the appellants had no right to apply as there had been no invasion of his right. It was argued that the person, likely to be affected was Jayanta, whose rights were likely to be affected, in the event of a revision of the record of rights, on the ground that there had been interpolations. But Jayanta, Mr. Chakravarty argued, had not come forward to agitate his grievances. There is hardly any force in this contention of Mr. Chakravarty, Jayanta undoubtedly is a person who is likely to be affected by a revision of the record of rights with regard to Khatian No. 140. But the settlement in favour of Jayanta was made by the appellants as executors of the estate of Rajendra Chandra Banerjee, since deceased. The appellants as executors of the estate of the said Rajendra Chandra Banerjee are interested in maintaining the settlement made by them and it cannot, therefore, be said that no rights of the appellants have been infringed so as to enable them to move an application under Article 226 of the Constitution.

27. It was next contended by Mr. Chakravarty that the issue of the impugned notice under Section 57 of the Act cannot be challenged nor can the notice be quashed by a writ of certiorari and therefore no order can be made with regard to the notice dated March 27, 1963, which has been validly issued by the respondent No. 3. There is no merit in this contention. The notice undoubtedly has been issued under Section 57 of the Act. But it has been issued by the respondent No. 3 in connection with the case No. 124 under Section 151 of the Civil Procedure Code. The notice does not stand by itself, but has been issued in connection with the proceedings mentioned in the notice itself, as discussed earlier in this judgment. The record of rights is sought to be revised and corrected having regard to the alleged interpolation and illegal entries made therein. Such revision and correction are proposed to be made by the respondent No. 3 in exercise of the inherent powers of a Civil Court and the notice has been issued upon the appellants calling upon them to appear before the respondent No. 3 with necessary papers. The respondent No. 3 has no jurisdiction either to commence or to carry on the said proceedings in exercise of the inherent powers of a Civil Court for the reasons mentioned earlier in this judgment. If the proceedings in case No. 124 are to be quashed, the notice also must be quashed along with them. As the respondent No. 3 has no jurisdiction to commence proceedings in exercise of the inherent powers of the Civil Court, the notice dated March 27, 1963, which is the foundation of these proceedings and which clearly specified that it was a proceeding under Section 151 of the Civil Procedure Code must be held to be bad.

28. Before I conclude I should note that reference was made to several decisions reported in : (1961)ILLJ1SC , : [1963]2SCR774 , : [1964]2SCR363 , : AIR1963Bom233 . It is not necessary for us to deal with these decisions having regard to our conclusions in this appeal.

29. For the reasons mentioned above, this appeal is allowed. The judgment and order of the trial Court dated December 23, 1964. are set aside, and the rule is made absolute. Let a writ of certiorari issue quashing the proceedings in respect of case No. 124 under Section 151 of the Code of Civil Procedure including the notice dated March 27, 1963. Each party to pay its own posts throughout.

Bose, C.J.

30. I agree.


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