Abdul Waheed Khan Vs. Bhawani &
Ors [1966] INSC 50 (21 February 1966)
21/02/1966 SUBBARAO, K.
SUBBARAO, K.
RAMASWAMI, V.
CITATION: 1966 AIR 1718 1966 SCR (3) 617
ACT:
Bhopal State Land Revenue Act (4 of 1932),
ss. 71, 89, 93, 95 and 200(1)-Suit based on title-If barred by decision of
revenue officer.
HEADNOTE:
The suit of the appellant as khatedar of the
land in dispute, for ejectment of the respondents on the ground that they were
shikmi tenants, was decreed by the Tahsildar under s. 71 of the Bhopal State
Land Revenue Act, 1932. Within 12 years of the date of their dispossession the
respondents filed the suit against the appellant in the civil court, claiming
to be the khatedars and for possession. The lower courts and the High Court
held that the decision of the revenue court did not bar the jurisdiction of the
civil court on the question of title to the suit land and decreed the suit.
In appeal to this Court,
HELD : Section 200(1) of the Act, read with
ss. 71, 89, 93 and 95, does not exclude the jurisdiction of the civil court to
entertain a suit based on title. [621 E-F] Section, 200(1) bars the civil court
from entertaining a suit with respect to any matter which a revenue officer is
empowered by the Act to determine. But the question of title is a matter
foreign to the scope of s. 71. The Tahsildar is no doubt empowered under s. 93
to decide on any dispute about any entry to be made in the Record of rights
showing the persons who are holders of land, but, under s.
95, the effect of such an entry is only to
make it a presumptive piece of evidence in a collateral proceeding such as a
suit based on title. Therefore, it is assumed that such a suit could be filed
in spite of a decision under s. 93. The suit was within time under Art. 142,
Limitation Act, 1908, and since the High Court and the lower courts held that
the presumption raised by the entry was rebutted by the oral and documentary
evidence adduced by the respondents, the correctness of the concurrent findings
of fact could not be canvassed in the appeal under Art. 136. [621 B, C; 622 B,
C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1039 of 1963.
Appeal by special leave from the judgment and
order dated June 24, 1959 of the Madhya Pradesh High Court in Civil Second
Appeal No. 8 of 1957.
N. N. Keswani and Urmilla Kapur, for the
appellant.
B. Sen, C. L. Sanghi and A. G. Ratnaparkhi,
for the respondents.
The Judgment of the Court as delivered by:
Subba Rao, J. This appeal by special leave
raises mainly the question whether a civil court had jurisdiction to entertain
the 618 suit filed by the respondents for the recovery of possession of the
plaint-schedule land and mesne profits' The relevant facts may be briefly
stated: The respondents, claiming to be the khatedars of an extent of 57.07
acres of land in Mauza Bhanpur, Tahsil Huzur, Western District Bhopal, filed a
suit against the appellant on the ground that the latter was in illegal
possession thereof. The appellant contested the suit mainly on the ground that
he was the khatedar of the said land and that he was in possession thereof in
that capacity. He also pleaded that his title to the property was declared by
the Tahsildar in an application for ejectment filed by him against the
respondents under the Bhopal State Land Revenue Act, 1932 (Act No. IV of 1932),
hereinafter called the Act, and that the said decision would be a bar to the
maintainability of the suit in a civil court.
The learned Subordinate Judge, Bhopal, held
that the respondents were the khatedars of the suit land and that they had been
in possession thereof in that capacity. He held that the suit was maintainable
in a civil court.
On appeal, the Additional District Judge
agreed with the findings arrived at by the trial court.
On second appeal to the Madhya Pradesh High
Court, Shiv Dayal, J., of that Court, after admitting certain notifications as
evidence, came to the same conclusion both on the question of title and on the
question of jurisdiction. In the result he dismissed the second appeal.
Hence the present appeal by special leave.
Mr. Keswani, learned counsel for the
appellant, raised before us a number of points; but his arguments may
conveniently be crystallized into the following points: (1) whether the
decision of the revenue court on the question of title to the suit land bars
the jurisdiction of the civil court; (2) whether the concurrent finding given
by the lower courts on the question of title was vitiated by an error of law by
the courts wrongly throwing the burden of establishing title on the appellant
notwithstanding the fact that in the Record of Rights the said land was entered
in the name of the appellant; and (3) whether the suit was barred by
limitation. The other questions mooted by him were pure questions of fact and,
therefore, they need not be noticed.
To appreciate the first question it is
necessary to notice a few facts. The appellant as khatedar of the land in
dispute had filed a suit under s. 71 of the Act in the court of the Tahsildar,
Tahsil Huzur, Bhopal for the ejectment of the respondents on the ground that
they were his shikmi tenants.
The said court held that the appellant was
the khatedar of the land in dispute and the respon619 dents were his shikmi
tenants. The present contention is that the said decree was given by a court of
exclusive jurisdiction and, therefore, the respondents could not reagitate the
same subjectmatter in a civil court.
Under s. 9 of the Code of Civil Procedure, a
civil court can entertain a suit of a civil nature except a suit of which its
cognizance is either expressly or impliedly barred. It is settled principle
that it is for the party who seeks to oust the jurisdiction of a civil court to
establish his contention. It is also equally well settled that a statute
ousting the jurisdiction of a civil court must be strictly construed. The
question is whether a suit based on title of a khatedar and for possession is
either expressly or by necessary implication barred by the provisions of the
Act.
The relevant provisions of the Act may now be
read:
Section 200 (i) Except as otherwise provided
in this Act, or in any other enactment for the time being in force no civil
court shall entertain any suit instituted or application made to obtain a
decision or order on any matter which the Government or any revenue officer is,
by this Act, empowered to determine, decide or dispose of, and in particular
and without prejudice to the generality of this provision, no civil court shall
exercise jurisdiction over any of the following matters Cls. (a) to (u) No
reliance is placed on the matters described in cls. (a) to (u) of' this
section. But it is said that under the other provisions of the Act a revenue
officer is empowered to determine, decide or dispose of a question of title of
a person to a land as khatedar and, therefore, a suit in a civil court is
barred in terms of s. 200(1). The first section relied upon in that context is
s. 71, which reads:
"A shikmi may be ejected by order of the
Tahsildar if he fails to vacate land on the termination of his lawful
possession or does anything in contravention of his agreement, if any, provided
that no ejectment shall take effect before the commencement of the next
agricultural year."' "Shikmi" is defined under the Act to mean a
person who holds land from an occupant and is or but for a contract, would be.
liable to pay rent for such land to that occupant, but does not include a
mortgagee or a person holding land directly from Government.
"Occupant" is defined to mean "a person who holds land direct
from Government or would do so but the right of collecting land revenue having
been assigned or relinquished." Section 71, therefore, presupposes the
existence of a legal relationship of landlord and tenant and enables the
occupant to evict his shikmi if he does not comply with one or other of the
conditions mentioned therein; it does not comprehend a decision on a question
of 620 title. The question of title is a matter foreign to the scope of S. 71.
If so, a suit in a civil court for a declaration of title and possession by a
khatadar against a trespasser falls outside the -scope of S. 200(1) of the Act.
The second limb of the contention turns upon
a fasciculus of provisions relating to the preparation of the Record of Rights.
The relevant provisions are as follows:
Section 89. The Record of rights in each
village shall comprise (1)........................................
(2) a register, to be called the
"register of rights", showing all persons who are holders of land and
the nature and extent of their interests and the conditions and liabilities, if
any, attaching thereto.
Section 92. No entry in the register of
rights shall be contrary to the decree or order of a civil court.
Section 93. (1) If any dispute arises about
any entry to be made in any document of the record of rights, the Tahsildar or
other officer preparing the record shall inquire into it summarily and shall
pass such order as he thinks fit.
(2) Such order, if passed with reference to
any entry in the register of rights, shall not be subject to appeal, but no
such order shall debar any person from establishing any right to land in a
civil court, and the civil court may direct that the entry relating to the land
shall be altered in accordance with its decision.
(3) Any such order, if passed with reference
to a record other than the register of rights shall be subject to appeal but
shall not be called in question in a civil court, except in so far as any
private right, is infringed and then only by a suit instituted within one year
from the date on which the contents of the record were announced under section
88.
Section 95. Any entry in the register of
rights shall be presumed to be correct until the contrary is proved,. and all
other entries in the record of rights, subject to any change which may be
ordered in appeal, revision or review only or by a civil court under
sub-section (3) of section 93, shall be conclusive evidence of the facts to
which they relate.
On the basis of the said provisions it is
argued that under the said provisions the right of a person to hold land shall
be entered in the register of rights under s. 89(2) of the Act and a dispute in
respect thereof shall be decided by the Tahsildar under s. 93(1) thereof and
621 that thereafter such an entry shall be rectified only by filing a suit in a
civil court in the manner prescribed in s. 93(2) of the Act and that,
therefore, the Tahsildar, subject to the statutory suit, kw the exclusive
jurisdiction to determine or decide the question in regard to the said matter
within the meaning of s. 200 of the Act. This argument appears to be plausible,
but a deeper scrutiny reveals a fallacy. The scope of an entry in regard to the
right to hold a land under s. 89(2) of the Act and the decision under s. 93
thereof is disclosed by s. 95. When such an entry is made in the register of
rights and is not corrected in the manner prescribed in s. 93, under s. 95 it
shall be presumed to be correct until the contrary is proved. The effect of
such an entry, therefore, is only to make it a presumptive piece of evidence in
a collateral proceeding: that is to say, in a suit based on title when such an
entry is relied upon by one or other of the parties, the court shall presume it
to be correct unless the other party rebuts the presumption. Not only s. 95
does not by necessary implication bar a suit but also assumes that in such a
suit the correctness of such an entry could be questioned subject to the said
presumption.
Learned counsel for the appellant, in support
of his contention, relied upon Gokhul Sahu v. Jodu Nundun Roy(1), and Jatindra
Nath Chowdhury v. Azizur Rahaman 'Shanao.
Those decisions turned upon provisions which
are not in pari materia with those with which we are now concerned. They do
not, therefore, throw any light on the construction of the relevant provisions
of the Act.
It is, therefore, clear that s. 200(1) of the
Act, read with the said group of sections, does not exclude the jurisdiction of
a civil court to entertain a suit based on title.
Learned counsel for the appellant then
contended that though the patta was granted in favour of the ancestors of the
respondents in the year 1929 it was revoked later on, that under the new
settlement of 1935 the appellant's name was recorded in the register of rights,
that in subsequent khasras up to 1953 his name continued to be shown as the
owner of the suit land and that, therefore, the courts below should have held
that the presumption raised by the register of rights in his favour was not
rebutted and the plaintiff had failed to prove his title. But a perusal of the
judgments of the courts below shows that all the courts, after taking into
consideration the entire oral and documentary evidence, came to the conclusion
that the respondents had established their title. Indeed, though the High Court
rightly pointed out that the finding of fact given by the lower appellate court
was conclusive, in view of the insistence of the Advocate in the High Court, it
considered the entire documentary and oral evidence over again and came (1)
[1890] I.L.R. 17 Cal. 721.
MIlSup. Cl/66-8 (2) A.I.R. 1923 Cal. 433.
622 to the same conclusion. It also admitted
the notifications in respect of the settlement as fresh evidence and, after
considering them, held that they did not disclose that the patta issued in
favour of the respondents' ancestors was cancelled. In our view, the High Court
should have accepted the finding of the first appellate court and should not
have reviewed the evidence over again. The courts in effect held that the said
presumption was rebutted by the oral and documentary evidence adduced by the
respondents. We are not, therefore, justified in an appeal under Art. 136 of
the Constitution to permit the appellant to canvass the correctness of the said
concurrent findings of fact.
The last argument raises a question of limitation.
If, as we have held, the suit is outside the scope of the Act, the question of
limitation turns upon the provisions of the Indian Limitation Act. The suit was
originally filed by the respondents for a declaration of their title to the
suit property, but as they were dispossessed of the land on March 5, 1953,
subsequent to the filing of the suit, the plaint was amended on July 24, 1954,
praying for delivery of possession. To such a suit Art. 142 of the Limitation
Act applies. The suit is, therefore, clearly not barred by limitation.
In the result, the appeal fails and is
dismissed with costs.
Appeal dismissed.
Back
