Shri Lokraj
& Ors Vs. Kishan Lal & Ors [1995] INSC 37 (11 January 1995)
Ramaswamy,
K. Ramaswamy, K. Manohar Sujata V. (J)
CITATION:
1995 SCC (3) 291 JT 1995 (2) 500 1995 SCALE (1)295
ACT:
HEAD NOTE:
ORDER
1.This
appeal by special leave arises from the division bench judgment dated January 22, 1986 made in CRP No. 1215/ 77 of the
High Court of Andhra Pradesh. The respondent- plaintiff laid the suit-O.S.
No.59 of 1968 in the Court of the Chief Judge, City Civil Court, Hyderabad for partition of the plaint
schedule properties and for 1/6th share therein. We are concerned in this
appeal with the properties mentioned in 'D' schedule of the plaint. It consists
of 8 items, of which item 5 relates to lands- bearing Survey Nos. 174, 175,
179, 192, 193 and 205 admeasuring 20 acres 21 gunthas situated in Attapur
village.
The
said land was acquired by the government to establish Zoo. The compensation was
determined in O.P.No.35/ 63 by the First Addl. Judge, City Civil Court, Hyderabad. The rest of the properties are now found to be Inam lands
as per the finding of the High Court:- "Thus, there does not appear to be
any controversy between the parties on the question whether the plaint 'B'
schedule properties are Inam lands or not. Therefore, it becomes an admitted fact
that the plaint B schedule lands are Inam lands".
2.On
those admitted facts, the Division Bench proceeded to consider whether the suit
for partition is maintainable.
Section
3 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955, as amended
in 1967, (for short 'the Act') 502 deals with the abolition and vesting of the Inam
lands.
Section
3(1) is relevant, which reads thus:
"Abolition
and vesting of inams and the consequences thereof. (1) Notwithstanding to the
contrary contained in any usage settlement, contract, grant, sanad order or
other instrument, Act, regulation, rules or order having the force of law and
notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat
Court, and with effect from the date of vesting, all inams to which this Act is
made applicable under sub- s.(2) of s. 1 of this Act shall be deemed to have
been abolished and shall vest in the State".
3.
Therefore, notwithstanding any contra usage, settlements etc. enumerates s.3(1),
on and from the date of the Act the inams were abolished and inam lands stood
vested in the State. Section. 3 expressly saves certain properties from the
vesting as enumerated in clauses (a) to (i) of the sub-s.(2) thereof, with
which we are not presently concerned. Section 4 gives right to registration by
the Inamdar as occupant. As per this Section, every inamdar shall, with effect
from the date of vesting, be entitled to be registered as an occupant of all inam
lands other than the lands enumerated in clauses (a) to (c) therein. Sec- tions
6 to 8 deal with registration of permanent tenants as occupants, either
protected tenants or non-protected tenants etc. Section 5 deals with
registration of Kabize-kadim tenants as occupant. Section 9 deals with vesting
of certain buildings and inam lands used for non-agricultural purposes. Section
10 creates forum for determination of the entitlements in ss.4 to 9. Section 11
saves certain rights ereated under the Act before the date of vesting as Inamdars.
Section 23 deals with constitution of Special Tribunals and their power to deal
with the questions arose therein. Section 24 gives right of appeal against the
order passed by the authorities constituted under s. 10 to determine the
questions enumerated in ss.4 to 9. Thus the Act is a complete Code, abolished
the Inam, vested the land in the government and conferred rights on the persons
in oc- cupation enumerated, subject to the right of appeal and the decision
thereon. The Act abolished existing rights and created new rights. Created forum
to determine the rights and liabilities arising therefrom. The question,
therefore, is whether the civil suit for partition is maintainable, after the
estate was abolished.
4.
Consequent to the abolition, the pre-existing right, title and interest of the Inamdar
or any person having occupation of the Inam lands stood divested and vest the
same in the State until regrant is made. The inamdar, thereby lost the
pre-existing right, title and interest in the land. The right to partition
itself also has been lost by the statutory operation unless regrant is made. We
are not concerned with the consequences that would ensue after regrant of this
appeal. Therefore, it is not necessary for us to go into the question that may
arise after the regrant.
5.In
B.P. Narain Singh v. S. Mukherjee. 1.971 (3) SCR 639, this Court held that
after the estate was abolished under Bihar Land Reforms Act 1950, the decree
for partition stood abated as the lands stood vested with all assets in the
State of Bihar. This Court pointed out that the object of the Act was to cause
transference to the State of the interest of the proprietors and tenure-holders
in land as also of the mortgagees and lessees of such 503 interests including
interest in the lands etc. etc. Though the plaintiffs therein had a share in
the lands as a ryat after the regrant, but they had- lost the right as a
tenure- holder or proprietor. In S.P. Shah v. B.N. Singh, (1969)3 SCR 908, this
Court held that after the estate is abolished,the rights created under s.6 of the
Bihar Land Re- forms Act has to be worked out in accordance with the provisions
of the Act. In Chayanna v. K. Nannayana, -(1979) 3 SCC 42, and Chenchulakshmamma
v. Subramanya Reddy, (1980) 1 SCR 1006, this Court held that after the
abolition of the estate 'and vesting of the land in the State, while the new
rights were created under the Act, the civil court has no jurisdiction to
adjudicate the pre-existing rights. The parties have to work out the rights
under the Act before the forums created thereunder.
6. In Sheethal
Singh v. Mahmood Shariff, 1984 (1) Andhra Weekly Reporter, 406, a Single Judge
of the High Court con- sidered the effect of the abolition and following the
judgments of this Court held that the suit is not maintainable. The Division
Bench overruled the judgment on the sole ground that the ratio in Govind Reddy
v. Lakshminarayan Reddy, 1959(1) Andhra Weekly Reporter, was not considered,
therefore, it was not good law. The Division Bench obviously overlooked the
fact that under Aliyat Act the ultimate jurisdiction for deciding the question
has been vested only in the civil court. There- fore, the division bench in Govind
Reddy's case had held that suit for partition was maintainable. But that ration
bears no relevance to the consequence that would ensue under the Act. The
division bench, therefore, was not right in holding that the suit for partition
is maintainable, even though Inam has been abolished under the Act and the,
lands stood vested in the State.
7.Madhav
Reddy, the learned senior counsel, placing reliance on K. Babgonda Patil v.B.K.
Patil, (1989)Supp (1) scc 246, and S.T. Karaban v. P.H. Karaban, (1994)4 SCALE
750, contended that the right to claim partition has. not been lost, though Inam
has been abolished. We find no force in the contention. Therein, after
abolition of the Watan regrants were made in favour of Watandars. In view of
the pre-existing watans burdened with service of watandar as per pre-existing
law, excluded the junior members of the family to claim partition, was abolished
and regrant was made to the watandar, after the regrant the property became the
joint family property. So the coparceners of the Hindu joint family were held
entitled to lay the suit for partition and civil court has jurisdiction to
grant decree of partition by metes and bounds pro-rata. 'Mat ratio has no
application to the facts of this case. When regrant is made and in what
capacity the regrant would be made is a matter to be considered and decided in
terms of the regrant.
8.The
appeal is accordingly allowed in respect of all the items except item 5 of the
'B' schedule. The suit stands dismissed. With respect to item 5, the civil
court would proceed for deciding the controversy relating to the compensation
awarded by the civil court between the parties in terms of shares to which parties
arc entitled to. In the facts and circumstances of the case, parties are
directed to bear their own costs.
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