Shatrughan Badri Singh vs Mange Mir Singh
1971 Latest Caselaw 350 Del

JUDGMENT

1. This execution section appeal has been filed by Shri Satrughan Appellant against the appellate order of the Additional District Judge dated 17th August, 1971 by which he dismissed the appeal and maintained the order of the Court of first instance dated 4th June, 1971 ordering the issue of warrant of possession for restitution of the property which had been delivered to the appellant before me in execution of the decree of the Court.

2. The material facts leading to this appeal are not much in dispute. The appellant herein filed a suit for a declaration that the grant of Bhumidari rights by the Revenue Assistant to the respondent was illegal and he sought recovery of the possession. The suit was decree by Shri K.I. Wason, Subordinate Judge on 12th March, 1962. The first appeal against the same failed, but on second appeal, the High Court (S.N. Andley, by judgment and order dated 2nd April, 1971 in R.S.A. 125-D Of 1963) held, upon a decision of the Supreme Court in Hatti v. Sunder Singh , that the civil Court had no jurisdiction to entertain the suit relating to Bhumidhari rights and the High Court ordered the dismissal of the suit.

3. It was represented before the High Court that in execution of the decree of the Court below, the possession of the suit land had been taken by the plaintiff appellant and the High Court observed that no order could be made by it in the appeal as it would be open to Mange to apply to the trial court for restitution. Eventually Mange applied to the trial court for restitution. The application was resisted on behalf of the appellant herein and the Court rejected the objections of the appellant and ordered restitution. The appeal against the same failed before the Additional District Judge.

4. The contention which has been raised on behalf of the appellant in this Court is the same which was pressed before the Courts below, namely that under Section 185(1) of the Delhi Land Reforms Act, 1954 (the jurisdiction?) of the civil Court has been excluded in respect of matters provided in Schedule I in particular entry No. 19 which covers a suit for ejectment of a person occupying land without title ; and that under Section 84 of the Act, a person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force and where the land forms part of the holding of a Bhumidar or Asami without the consent of such Bhumidar or Asami * * * shall be liable to ejectment on the suit of the Bhumidar and such a suit is cognizable by a Revenue Court and has been excluded from the jurisdiction of the civil Court. Relying on the said provisions of law, the learned counsel for the appellant submits that the civil Court has not jurisdiction to order restitution under Section 144 of the Code of Civil Procedure.

5. I have heard the learned counsel for the parties. In my opinion, there is no force in the appeal. Section 84 of the Act does not govern the proceedings before the civil Court. It also does not take into consideration the acts of the civil Court delivering possession to a party in execution of its order or decree. Such a matter would be determined by the provisions of the Civil Procedure Code itself and not by Section 84 of the Land Reforms Act.

6. The counsel has relied upon a passage in the judgment of the Supreme Court in Hatti's case, (supra), which is to the effect that the Revenue Act is a complete Code under which anyone wanting a declaration of his right as a Bhumidar or aggrieved by a declaration issued without notice to him, can approach the Revenue Assistant and should there be a dispute as to possession of agricultural land, the remedy sought would be under Section 84 of the Land Reforms Act. of the Act and the civil Court has no jurisdiction to entertain the said claim. The counsel, relying upon these observations submits that the civil Court's jurisdiction has been expressly taken away by the provision of the Land Reforms Act and as such the Court does not have the jurisdiction to order for restitution.

7. There is a fallacy in the submission of the learned counsel. The jurisdiction of the civil Court in respect of Bhumidari rights has undoubtedly been excluded as has been held by the Supreme Court, but if that is so, the delivery of possession of the land in dispute to the appellant by the civil Court was itself an act without jurisdiction. In resisting the application for restitution, the appellant is really asking the Court to perpetuate the benefit given to him by the civil Court in proceedings without jurisdiction and he does not want the civil Court to remedy the wrong which has been done to the opposite party by its order which was illegal and without jurisdiction. In my opinion, the duty of the Court is clearly to see that its act does no injury to any party. As observed by Lord Cairns in Rodger v. The Comptoir D' Escompte, (1871) 3 Pc 465, one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression "the act of the Court" is used, it does not mean merely the act of the Primary Court or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest to the highest.

The Judicial Committee in Jai Berham v. Kedar Nath Marwari, Air 1922 Pc 269, observed that "It is the duty of the Court under Section 144 of the Civil Procedure Code to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed ; nor indeed this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved. My conclusion is that it was the duty of the Court below to order restitution and remedy the wrong done by its decree which has been set aside by the Court of appeal and has been found to be without jurisdiction. It cannot be denied that a Court not having jurisdiction over the subject-matter of a suit would still retain inherent jurisdiction to recall its orders and remedy the wrong which has been caused directly by executive of its order. The arguments at the bar advanced in this appeal suggest that the parties are fighting each other in respect of the Bhumidar rights which respondent has acquired, before the revenue authorities and the appellant is challenging them and is claiming the rights in himself.

In this connection, the possession of a part for some years whether lawful or unlawful is of great significance and has a material bearing on the proceedings before the revenue authorities. In this context, it is of extremely great importance that the possession of the appellant which has been given to him in no other way except by execution of the decree of the Court below, which has been set aside, must be restored and the parties must be relegated to the same position as they were before the execution of the decree as on the date of the suit so that they could work out their rights, if any, in the revenue courts according to law.

8. In any view of the matter, I hold that there is no infirmity with the order of the lower appellate Court and there is no substance in the appeal which is dismissed with costs.

9. Appeal dismissed.