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Mukti Nath Thakur Vs. Hon'ble Maharaja Rameshur Singh Bahadur (09.08.1910 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.340
AppellantMukti Nath Thakur
RespondentHon'ble Maharaja Rameshur Singh Bahadur
Cases ReferredJogendra Nath Roy v. Krishna Promoad Dossi
Excerpt:
bengal tenancy act (viii of 1885), sections 106, 109, 111(a) - record-of-rights--suit under section 106, whether exclusive remedy--suit only to correct or alter entries--suit claiming other reliefs--maintainability of suit in civil court. - .....whether the facts before mr. justice brett were the same as those before us, or as to whether the relief claimed in that suit was the same as the relief claimed here, i am of opinion that there is not so far as the present case is concerned any such conflict of decision as to involve or necessitate a reference to the full bench. when the decision in jogendra nath roy v. krishna promoda dossi 12 c.w.n. 1032 : 35 c. 1013 : 8 c.l.j. 322, is examined, it will be found that the result of the suit was in all the courts the same, that is, the munsiff held that the suit was not maintainable, the subordinate judge similarly so held, and the high court in appeal confirmed his judgment. but the lower courts, though holding that the suit, as framed, was not maintainable, held also that a suit for.....
Judgment:

Woodroffe, J.

1. We are not called upon in this appeal to decide this question as if it was res integra. There are decisions which support this appeal, and the only question is whether the learned District Judge was right in holding that the decision reported in Jogendra Nath Roy v. Krishna Promoda Dossi 12 C.W.N. 1032 : 35 C. 1013 : 8 C.L.J. 322, is a bar to the suit.

2. It has been contended on behalf of the respondent that the plaintiff could have sued in the Revenue Court, under Section 106 of the Bengal Tenancy Act, and claimed the same relief which he has claimed in this suit, and that, therefore, this suit is barred. But even assuming, for the sake of argument, that the Revenue Court could have granted the same relief, the question, then, is, whether the failure of a person to institute a suit, under Section 106 of the Bengal Tenancy Act, would or would not bar him from bringing a suit such as this to establish his rights. The decision, reported in Golab Misser v. Kumar Kalanand Singh 12 C.L.J. 107 : 6 Ind. Cas. 217 : 14 C.W.N 884, would appear to answer this question in the negative; and the same view appears also to have been taken in the decision of the Court to which we have been referred in Pandab Dowari Das v. Ananda Kishun Chakravarti 14 C.W.N. 879 : 7 Ind. Cas. 102, and this also appears to be the law, having regard to the terms of Section 111(a), which provides for a suit for declaration of right, under the Specific Relief Act; and Section 109, which expressly purporting to deal with suits, from the cognizance of which the Civil Court is debarred, says that subject to the provisions of Section 109(a), a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Sections 105 to 108, both inclusive. The learned pleader for the respondent has asked us to read this section as if it contained in addition to the words shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made', the following words, namely, 'or which might have been the subject of an application made, suit instituted or proceedings taken'. There is no warrant for reading into the sections words which are not there. The question, then, is whether the decision referred to by the District Judge in Jogendra Nath Roy v. Krishna Promoda Dassi 12 C.W.N. 1032 : 35 C. 1013 : 8 C.L.J. 322 is a bar to the suit, and whether it is in conflict with the decision I have mentioned. No doubt, Mr. Justice Brett in the decision in Golab Misser v. Kumar Kalanand Singh 12 C.L.J. 107 : 6 Ind. Cas. 217 : 14 C.W.N 884, which I have mentioned, appears to have thought that, in a certain event, it might have been necessary to refer the matter to the Full Bench. Apart from the question, into which I need not now enter, namely, as to whether the facts before Mr. Justice Brett were the same as those before us, or as to whether the relief claimed in that suit was the same as the relief claimed here, I am of opinion that there is not so far as the present case is concerned any such conflict of decision as to involve or necessitate a reference to the Full Bench. When the decision in Jogendra Nath Roy v. Krishna Promoda Dossi 12 C.W.N. 1032 : 35 C. 1013 : 8 C.L.J. 322, is examined, it will be found that the result of the suit was in all the Courts the same, that is, the Munsiff held that the suit was not maintainable, the Subordinate Judge similarly so held, and the High Court in appeal confirmed his judgment. But the lower Courts, though holding that the suit, as framed, was not maintainable, held also that a suit for declaration of the plaintiff's rights might lie, and there is nothing that I can see in the judgment of the High Court which controverts the correctness of that opinion. Then, when we look at the High Court's judgment, we find that the suit was, (and it is so expressly stated in the judgment of the late Chief Justice), a suit for alteration and correction of certain entries made in the record-of-rights, published under Chapter X of the Bengal Tenancy Act. It may be, that such a suit would not lie in the Civil Court. But the suit which is now before us is not solely of that character. The present suit claims a variety of reliefs. As regards the second prayer, namely, that orders may be passed for the setting aside of the orders of the Settlement Survey Officers, for the making of a correct entry in the record-of-rights and for can-celment of the present entry, that prayer would appear to fall within the scope of the decision in Jogendra Nath Boy v. Krishna Promoda Dossi 12 C.W.N. 1032 : 35 C. 1013 : 8 C.L.J. 322, but there are other reliefs claimed; and before us the learned pleader for the appellant states that he has no desire to press his case as regards this relief. Nor, indeed, did the Munsif grant this relief. On the contrary, he in effect refused it, and limited his decree to a declaration that certain of the entries were incorrect and that other entries were correct. The first prayer, however, is for a declaration that the land in dispute is the lakheraj milik land of the plaintiff and that it is not, and cannot be, mal land assessable with rent; and the third prayer is for a declaration that the plaintiff had acquired the right of milikdar lakherajdar of the land in dispute by virtue of the adverse possession thereof for upward of 12 years. This suit is a suit, so far as it seeks for this relief, of a different character from that in the case in Jogendra Nath Roy v. Krishna Promoad Dossi 12 C.W.N. 1032 : 35 C. 1013 : 8 C.L.J. 322. In my opinion, therefore, there is neither a conflict of decisions on the point now before us, nor any bar to the entertainment of this suit. The learned District Judge has disposed of the appeal on the preliminary ground that the suit is not maintainable in the Civil Court. I would reverse the decree of the District Judge and remand the case to him in order that it may be heard on the merits. The appellant is, in my opinion, entitled to the costs of this appeal.

Teunon, J.

3. I agree.


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