Ramji Lal vs Radhey Gopal
1967 Latest Caselaw 33 Del

JUDGMENT

K.S. Hegde, C.J. and M.M. Ismail, J.

(1) This appeal has come before this Bench as a result of the reference made by A. N. Grover J. on April 30, 1955. That reference became necessary in view of conflict of judicial opinion on the question of law arising for decision.

(2) The principal question that arises for decision in this case is whether the civil Courts have jurisdiction to grant the relief prayed for by the Respondent in this case, in view of the provisions in the Delhi Land Reforms Act, 1954, which will be hereinafter referred to as the Act.

(3) Before proceeding to consider the question of law arising for decision, we shall briefly set out the material 'facts. The respondent herein is the proprietor of land bearing Khasra No. 619, situate in mauza Wazirpur, Delhi State. The appellant was a tenant under him for some time anterior to 1953-54. After the Act came into force, the respondent moved the Revenue Assistant under the proviso to sub-section (2) of section 11 of the Act for declaring that the land in question is his Khud Kasht. His case was that he had to lease the land as he was an invalid person and hence he is entitled-to the declaration prayed for. The Revenue Assistant refused to grant him the declaration asked for. Thereafter, the appellant was declared as Bhumidar in property in question under Section 13(1) of the Act. After the said declaration was made, the Respondent instituted suit No. 447 of 1962 in the Court of shri B. M. Aggarwal. Sub Judge, Delhi. seeking a declaration that the appellant was nto entitled to' any Bhumidari right in respect, of land bearing khaSra No.619, situate in mauza Nizampur, Delhi State, and, as such. the Bhumidari declaration issued under section " 13 of the Act by the Revenue Assistant with respect to that land is "wrong, illegal, ultra vires, without Jurisdiction and ineffective" as against his interest.

(4) The trial Court dismissed the suit primarily on the ground that the same was nto maintainable in view of section 185 of the Act. The appellate Court reversed the decree of the trial Court. It held that the suit is maintainable. Aggrieved by that judgment, the appellant came up with this second appeal.

(5) For deciding the question, whether the civil Court had jurisdiction to entertain this suit, we must first find out the relief prayed for by the respondent. As seen earlier he wants' a declaration to the effect that the declaration of Bhumidari right made in favor of the appellant under section 13(1) of the Act, is invalid, and .ineffecitiye. In toher words, he wants the civil Court to nullify the declaration made by the Revenue Assistant under section 13(1). Is such a suit maintainable in law?

(6) In order to answer the above question, it is necessary to examine the relevant provisions of the Act, Section 5 provides :-

"5. Every person belonging to any of the following classes shall be a Bhumidar and shall have all the rights and be subject to all the liabilities conferred or imposed upon a' Bhumidar by or under this Act, namely :- (a) * * * * (b) every class of tenants toher than those referred to in clause (a) and sub-tenants who are declared Bhumidars on the commencement of this Act ; or Admittedly, the appellant's case comes within the scope of section 5(b). The next relevant section is section 10(1), which provides- " 10(1) Every tenant of Sir and Sub-tenant of an occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, or sub- tenant of a tenant holding land under a Patta Dawami or Istamrari, with right of transfer by sale, who in the fasli year immediately before the commencement of this Act, is recorded as a tenant of Sir or as a sub-tenant, shall be deemed to be non-occupancy tenant of the land held by him at the rate of rent payable by him in the said year and the land held by such tenant and sub-tenant shall nto for the purposes of section 11 be available to the Sir-holder, occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, or to the Pattadar Dawami or Istamrari for acquisition of Bhumidari rights.'"

(7) It is nto denied that the appellant was a non-occupancy tenant in the property in question, when the Act came into force. The respondent's contention is that despite the fact that the appellant was cultivating the land in question during the year 1953-54, he was nto entitled to be declared as a Bhumidar in view of the fact that he had to lease out the land in question to the appellant as he was a disabled person. Therefore, the only question that the Revenue Assistant had to decide was whether the respondent was a disabled person or nto. There was no dispute between the parties as regards the relationship of land- lord and tenant. That was an admitted fact.

(8) Bearing in mind the above facts, let us now proceed to examine sections 11 and 13 of the Act, which are the most important sections for our present purpose. Section 11 reads-

"II.(1) Subject to the provisions of section 10, the Deputy Commissioner shall declare as Bhumidars persons holding the follow- ing lands, namely:- (a) Khud Kasht land or a proprietor's grove in the tracts to which the Punjab Tenancy Act, 1887, was applicable or Sir land or Khud Kasht land or a proprietor's grove in the tracts to which the Agra Tenancy Act, 1901, was applicable ; (b) land held by occupancy tenants under section 5 of the Punjab Tenancy Act, 1887, with right of transfer by sale ; and (e) land held under Patta Dawami or Istamrari by tenants with rights of transfer by sale. (2) For the purposes of sub-section (1), the Deputy Commissioner shall take into consideration the entries in the revenue records which shall be presumed to be correct unless the contrary is proved : Provided that where land held as Khud Kasht by a proprietor bt'longing to any of th(r) categories of p(r)rsons referred to in sub- section (2) of section 10 has been before the commencement of this Act, let out to antoher person by or on behalf of such propliutor, the Revenue Assistant, on application made to him in this behalf by or on behalf of such proprietor within six months of the commencement of this Act and after giving an opportunity to the tenant of being heard, shall declare such land to be the proprietor's Khud Kasht for the purposes of this section. (3)* * * * Clause (v) of sub-section (2) of section 10 provides that ntohing ia sub-section (1) of section 10 shall apply to a tenant of a person incapable of cultivation by reason of blindness or physical infirmity. We may next go to section 13(1) which says that- " 13(1) On the commencement of this Act, the Deputy Commissioner shall also declare the following clauses of tenants as Bhumidars, who shall, with effect from the same date, have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidars under this Act, namely :- (f) a non-occupancy tenant, "

(9) As mentioned earlier, the appellant was the non-occupancy tenant of the Respondent in respect of the land, mentioned above, even prior to the year 1953-54. We may remind our-selves at this stage that the respondent's application under the proviso to section 11(2) has been dismissed by the Revenue Assistant. We may further bear in mind the fact that the respondent had nto gone up in appeal against the declaration made by the Revenue Assistant under section 13(1). With that background, we shall now examine whether the Civil Courts had Jurisdiction to entertain the respondent's suit. Section 185 of the Act provides-

"185. (1) Except as provided by or under his Act, no court toher than a court mentioned' in column 7 of Schedule I shall, ntowithstanding anything contained in the Code of Civil Procedure 1908" take cognizance of any suit, application, or proceedings, mentioned in column 3 thereof. (2) Except as hereinafter provided no appeal shall lie from an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid. (3) An appeal shall lie from the final order passed by a court mentioned in column 7 in the proceedings mentioned, in column 3 to the court or authority mentioned' in column 8 thereof. (4) A second appeal shall lic from the final order passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 9- of the Schedule aftoesaid. "

The only toher provision, which'we need take ntoe of is Sub-section (1) of section 186, which says- '

"186(1) Ntowithstanding:anyting'contained in section 185, it in any suit or proceedings mentioned in column 3 of Schedule I, a question is raised regarding the title of any party to the land, which is the subject matter of the suit or proceeding and such question, is directly and substantially in issue the Court shall, unless the question has already been decided by a competent Court, frame an issue on the question of the title and submit the record to the competent civil court for the decision of that issue only. * * * * "

(10) The relevant portion of Schedule I read's as follows :-

Schedule I Section 185 S1. Section Description of suit application Period of Time from No. of the application and toher Limitation, which period Act proceedings. begins. ____________________________________________________________________________ 1 2 3 4 5 ____________________________________________________________________________ 4-,10, 11, 12, 13, Application for declaration None None 73. 74, 79 and of Bhumidhari rights. 85. ____________________________________________________________________________ Proper Court Court of original Court of fees. jurisdiction. -------------- 1st Appeal 2nd Appeal 6 7 8 9 ____________________________________________________________________________ As in Court Fees Revenue Assistant. Deputy Commissioner Chief Commissioner Act, 1870. sioner. ____________________________________________________________________________

From a reading of the entries in item No. 4 of Schedule I, it is clear that as against a declaration made by the Revenue Assistant under section 13, there is a first appeal to the Deputy Commissioner and a second appeal to the Chief Commissioner. Therefore, in view- of section 185 the jurisdiction of the civil Court is ousted. The present case clearly falls within the scope of item No. 4 of Schedule 1. Hence, it directly comes within the scope of sub-section (1) of section 185. We may also mention at this stage that a revision to the Chief Commissioner is provided for under section 187.

(11) Mr. J.K.Seth, learned counsel for the respondent, contended that as against an order made by the Revenue Assistant under the proviso to sub-section (2) of section 11, no appeal is provided for under the Act. We are nto so sure that there is no appeal against an order made under that proviso. It must be remembered that an order under that provision is only a preliminary step leading to a declaration under sub-section (1) of section 11, which is the final order. An appeal is provided against that order. In that appeal, the decision of the Revenue Assistant, arrived at under the proviso to section 11(2) can, in our opinion, be challenged. If that be the true position in law, as we think it is, then Mr. Seth is nto right in saying that no appeal is provided against an order under the proviso to sub-section (2) of section 11.

(12) Assuming that the contention of Mr. Seth that no appeal is provided against an order under the proviso to sub-section (2) of section 11, is correct, the same is of no assistance to the respondent A right of appeal is nto a fundamental right. It is merely a conferred right. If the Legislature did nto think it fit to confer that right on the parties, no one can say that the order made by the original authority can be either ignored or challenged in a manner nto contemplated by law. The Act created special rights. It has also provided special remedies for the aggrieved parties. Further, it has prescribed the forum, before which the disputes arising under the Act can be agitated. That being the position, the dispute with which we are concerned in this case, can only be agitated before the forum prescribed by the Act and nto before any toher forum. The Supreme Court in N. P. Ponnuswami v. Returning Officer, Namak Lal Constituency and toher, laid down that.- Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.

(13) Mr. Seth is right in his contention that in view of section 9 of the Civil Procedure Code, a party, who complains about the infringement of a civil right of his, can approach the civil Court, unless the jurisdiction of the civil court is taken away by law either expressly or by necessary implication. He is also right in his contention that the ouster of the Jurisdiction of the civil Court will nto be readily inferred. Such an ouster must be clearly established. But it cannto be denied that the Legislature has competence to take away the Jurisdiction of the civil Courts with regard to any particular cause of action. This position was made clear by the Judicial Committee in Secretary of State v. Mask & Co. Therein their Lordships, while holding that the exclusion of the Jurisdiction of the civil Courts is nto to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied, and further even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases whether the provisions of the Act have nto been complied with, or the statutory tribunal has nto acted in conformity with the fundamental principles of judicial procedure, on examining the provisions of the Sea Customs Act, came to the conclusion that the civil Court had no jurisdiction to entertain the dispute before it. After examining the scope of sections 188 and 191 of the Sea Customs Act, their Lordships came to the conclusion that the provisions therein are self-contained and the cases falling within the scope of those provisions are taken out of the jurisdiction of the civil Courts.

(14) The ratio of the decision in Mask's case", has been approved by the Supreme Court-See the decision in Abdul Waheed Khan v. Bhawani

(15) As mentioned earlier, the relief prayed for in this case directly falls within the mischief of section 185 of the Act. Therefore, the civil Court has no jurisdiction to grant the relief prayed for.

(16) The above conclusion of ours receives support from the decision of Bedi, J. in civil Revision No. 92-D of 1969 (Nanu and tohers v. Deep Chand. decided on January 31, 1962), to which our attention was invited by Mr. Tej Singh Vohra.

(17) In support of his contention that the civil Court has jurisdiction to grant the relief prayed for by his client. Mr. Seth invited our attention to several decisions, to which reference will be made presently.

(18) The first decision, to which oar attention was invited by Mr. Seth, is that of Grover, J. in Regular Second Appeal No. 70-D of l962 (Hathi v . Sunder Singh, decided on April, 23, 1965). There is no doubt that the decision in question does lend some support to the argument of Mr. Seth, But it may be ntoed that in the case before Grover, J. the plaintiff had prayed for possession of the suit property a relief, which the Deputy Commissioner could nto have granted. That apart, with great respect to him, we are unable to agree with Grover J. when he says that the civil Court has jurisdiction to examine the correctness of a declaration made by the Deputy Commissioner either under section 11 or under section 13 of the Act.

(19) The aforementioned Judgment of Grover, J. was taken up in appeal in Letters Patent Appeal No. 67-D of 1965 Hathi v. Sunder Singh decided on December 2, 1965. The Division Bench affirmed that decision on grounds toher than those mentioned by Grover, J. In that case, the dispute between the parties was, whether the defendant was the tenant of the plaintiff or nto. In toher words, there was a dispute relating to title to the suit property. The Act has nto given exclusive jurisdiction to the Deputy Commissioner to decide that dispute. Hence the Division Bench held that the civil Court's Jurisdiction to try that dispute is nto taken away. In order to decide whether a declaration in favor of a tenant under section 13 of the Act should be given or nto it may be necessary to go into the existence of the tenancy put forward, if the same is disputed. Such a decision is a decision on a jurisdictional issue. The Act does nto make that decision conclusive. Hence that decision can be challenged before a civil Court. Section 186 of the Act lends support for that conclusion. But such is nto the position in this case. As mentioned earlier, it is admitted that the appellant is the non occupancy tenant of the suit property. Therefore, no question of title arose for decision in this case. The question of title arose for decision disabled person or nto, was the only question that was put in issue before-the Revenue Assistant. The Revenue Assistant had exclusive Jurisdiction to decide that question.

(20) We do nto think that the decision of the Supreme Court in Abdul Waheed Khan v. Bhawani and tohers', already referred to, lends any support, to the contention of the respondent. The ratio of. that decision is similar to that. adopted by the Division Bench of the Punjab High Court in Letters Patent Appeal No. 67-D of 1965- already referred to.

(21) We are unable to agree with Mr. Seth that the decision of the Supreme Court in Nand Kishore v. Ram Kishan and tohers' bears on the point under consideration.

(22) For the reasons mentioned abo.ve, we are in agreement with. the trial Court that the civil Court had no Jurisdiction to entertain the suit under appeal. In the result,: this appeal, is allowed and the decree and Judgment of the first appellate Court are set: aside and those of the trial court restored. The appellant is entitled to his costs, buth in this Court as well as in the first appellate Court.