Abdul Waheed Khan vs Bhawani - 1966 Supreme(SC) 63

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1966 Supreme(SC) 63

SUPREME COURT OF INDIA
K. SUBBA RAO AND V. RAMASWAMI, JJ.
Abdul Waheed Khan, Appellant
Versus
Bhawani and others, Respondents.
Civil Appeal No. 1039 of 1963.
Advocates appeared
Mr. N. N. Keshwani and Mrs. Urmilla Kapur, Advocates, for Appellant; Mr. B. Sen Senior Advocate, (M/s. G. L. Sanghi and A. G. Ratnaparakhi, Advocates, with him), for Respondents.

Advocates:
A.G.Ratnaparkhi, B.SEN, G.L.SANGHI, N.N.KESHVANI, URMILA KAPUR

Headnote:(1) Civil P. C. 1908 - S. 9 - jurisdiction of Civil Court when barred - provision excluding jurisdiction of Civil Courts-Construction of-burden of proving exclusion of jurisdiction of Civil Courts.
       Under section 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. [Para 9]
       (2) Land Revenue Act, 1932 (Bhopal) - Ss. 71 and 200(1) - scope of section 71 - question of title not covered by this section- Tahsildar ordering ejectment of a person-a civil suit claiming the statutes of a Khatedur by the person aggrieved-not barred under section 200 (1) - Civil P. C., 1908 - S.9.
       Section 71 of the Bhopal State Land Revenue Act, 1932, 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 title. The question of title is foreign to the scope of section 71.
       Where a person alleging to be Khatedar and stating that the other party is a Shikmi, secured eviction order under section 71, the aggrieved party may institute a civil suit for declaration that he is the Khatedar and the other party is a trespasser and he should be given possession. Such a suit is not barred by section 200 (1) of the Act. 17 Cal. 721 and AIR 1923 Cal. 433 referred to. [Para 9]
       (3) Land Revenue Act, 1932 (Bhopal) - Ss. 89, 95 and 93 - entry in the record of right -presumption as to correctness-value in a Civil Court-the presumption may be rebutted.
       The scope of an entry in regard to the right to hold a land under section 89 (2) of the Act and the decision under section 93 thereof is disclosed by section 95. When such an entry is made in the register of rights and is not corrected in the manner prescribed in section 93, under section 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 rebutes the presumption. Not only section 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. [Para 10]
       (4) Civil P. C., 1908 - S. 100 - finding of the lower Court-is binding on the High Court -High Court cannot review the evidence.
       The findings of the first appellate Court are conclusive and the High Court Cannot review the evidence over-again. [Para 13]
       (5) Limitation Act, 1908 - Art 142 - suit for declaration of title-plaintiff dispossessed after the suit-prayer for restoration of possession incorporated by amendment-Art. 142 applies.
       Where the suit was initially instituted for declaration of title, but subsequent to the suit the plaintiff was dispossessed and added the prayer of restoration of possession by an amendment in the plaint, Art. 142 applies to such a case. [Para 14]

Judgement

SUBBA RAO, J. : This appeal by special leave raises mainly the question whether a civil Court had jurisdiction to entertain the suit filed by the respondents for the recovery of possession of the plaint-schedule land and mesne profits.

2. 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.

3. 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.

4. On appeal, the Additional District Judge agreed with the findings arrived at by the trial Court.

5. 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.

6. Hence the present appeal by special leave.

7. Mr. Keshwani, 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.

8. 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 grounds that they were his shikmi tenants. The said Court held that the appellant was the khatedar of the land in dispute and the respondents 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 subject-matter in a civil Court.

9. 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 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 constructed. 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. (1) 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 on order on any matter which the Government or any revenue officer is, by this Act, empowered to determine, decide or dis

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