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1926 Supreme(SC) 42
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, LORD DARLING, AND CHIEF JUSTICE ANGLIN.
UMED MAL - Appellant
Versus
CHAND MAL - Respondents
On Appeal from the Court of the Chief Commissioner, Ajmer-Merwara.
Decided On : Oct. 19. 1926.
Solicitors for appellants :Ranken Ford & Chester. Solicitors for respondent: Barrow, Rogers & Nevill.
Under Section 115 of the Code of Civil Procedure, deciding a suit for title and possession based on a mortgage without joining the mortgagor as a defendant constitutes a material irregularity, granting the revision court jurisdiction to reverse the lower courts' decrees.
Headnote:(A) Code of Civil Procedure, 1908 - Section 115 - Revision jurisdiction - Power of the court to call for records of a case decided by a subordinate court where no appeal lies - Jurisdiction exists if the subordinate court has exercised a jurisdiction not vested in it, failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity.
(B) Civil Procedure - Non-joinder of parties - Suit for declaration of title and possession based on a mortgage - Where the central issue is whether the mortgagor included specific parcels of land in the mortgage deed, it is a material irregularity to decide the matter in the absence of the mortgagor as a defendant.
Facts of the case:
The appellants brought a suit for declaration of title and possession of certain parcels of land, contending that the land was included in a mortgage deed describing a bungalow and its connected compound. The lower courts ruled in favor of the appellants, interpreting the general description in the mortgage deed to include the disputed land. On revision, the court reversed the decree, finding the descriptions irreconcilable and noting that the mortgagor had not been joined as a party to the suit.
Findings of Court:
The revision court had jurisdiction under Section 115 of the Code of Civil Procedure. The failure to make the mortgagor a defendant in a suit where the primary question was whether the mortgagor had conveyed the property constituted a material irregularity.
Issues: Whether the revision court had jurisdiction under Section 115 of the Code of Civil Procedure to review the decision and whether the non-joinder of the mortgagor as a defendant amounted to a material irregularity.
Ratio Decidendi: The court held that Section 115 of the Code of Civil Procedure confers jurisdiction to revise a decision if the lower court acted with material irregularity. In a suit for possession where the plaintiff's title depends on whether a mortgagor included specific land in a deed, the absence of the mortgagor as a party is a material irregularity that justifies the revision court's intervention.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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practice and procedure
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civil procedure
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revisional jurisdiction
- section 115 cpc
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joinder of parties
- non-joinder of necessary party
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revisional jurisdiction
-
civil procedure
-
property law
-
mortgages
- interpretation of mortgage deeds
-
possession and title
- ejectment
-
mortgages
Judgement
Appeal (No. 105 of 1925) by special leave from a decree of the Court of the Chief Commissioner of Ajmer-Mcrwara (September 17, 1919) reversing a decree of the District Judge which affirmed a decree of the Subordinate Judge.
The appeal arose out of a suit brought in Ajmer by the appellants to recover possession from the respondent of land there situate.
The facts, and the effect of the decisions-in India, appear from the judgment of the Judicial Committee.
The only question of law upon the appeal was whether the Court of the Chief Commissioner had jurisdiction in revision proceedings. By the Ajmer Regulations that Court has the powers of revision given to a High Court by s. 115 of the Code of Civil Procedure, 1908.
1926. June 26, 27, 28. Sir George Lowndes K.C. and E. B. Raikes for the appellants. The Chief Commissioner had no power under s. 115 of the Code to entertain revision proceedings. The lower Courts had neither exercised a jurisdiction not vested in them, nor acted in the exercise of their jurisdiction illegally or with material irregularity. The question was purely one of parcels and not within
s. 115. [Reference was made to Amir Hasan Khan v. Sheo Bakhsh Singh (( 1884) L. R. 11 I. A. 237.) ; Muhammad Yusuf Khan v. Abdul Rahman Khan (( 1889) L. R. 16 I. A. 104.) ; Malkarjun v. Narhari (( 1900) L. R. 27 I. A. 216.) ; Shew Prosad Bungshidhur v. Ram Chunder Haribux (( 1903) I.
L. R. 41 C. 323.) ; Chhajju Ram v. Neki . (( 1922) L. R. 49 I. A. 144.)] On the true construction of the mortgage the land in suit was included therein.
De Gruyther K.C. and Hyam for the respondent. The District Courts acted with material irregularity in not stating at the request of the present respondent a case for the opinion of the High Court, which they should have done under the Ajmer Regulations. Further the proceedings were not regular in that the mortgagor was not made a defendant; the case could not be dealt with satisfactorily in her absence.
[Reference was made to Birj Mohun v. Rai Uma Nath (( 1892) L. R. 19 I. A. 154.) and Ross Alston
v. Pitambar Das. (( 1906) I. L. R. 25 A. 509, 523.)]
Sir George Lowndes K.C. replied.
Oct. 19. The judgment of their Lordships was delivered by
VISCOUNT HALDANE. This is an appeal from a decree of the Chief Commissioner, Ajmer-Merwara, in his re visional jurisdiction, which reversed a decree of the Court of the District Judge. The latter had confirmed a decree of the Subordinate Judge at Ajmer dismissing a suit instituted in his Court by the appellants. The subject-matter of the suit was 15½ bighas of land, which, it is agreed, belonged originally to one Haji Mohammed Khan, and at his death had devolved on his daughter, one Musammat Fatima Begum, along with a bungalow called in the suit bungalow No. 5. The proceedings were for a declaration of title and for possession.
On July 7, 1893, Musammat Fatima and her husband had executed a mortgage charging some of the properties belonging to them for a debt due to the predecessors in title of the appellants. The properties mortgaged to them were enumerated in the mortgage deed. Among them was what was described as follows " One bungalow No. 5, with out houses, and the land of the compound connected with the bungalow, situate in Qasba Dargah Khaja Sahib, Ajmer, which has fallen to the share of Musammat Fatima Begum, alias Badshah Begum, by partition ; East—Land of Isar and Nihal Mali; West—Road, compound of the bungalow of Rev. Gray ; South—Land of Isar and Nihal Mali; North— Land and Baori of Fatima Begum."
On March 27, 1903, the predecessors in title of the appellants instituted a suit on the mortgage, and a decree was made in the usual form. There was a subsequent application for execution of the decree by sale, and at the Court auction sale the decree holders purchased two of the properties mortgaged, including what was mis-described as to its number but was really bungalow No. 5, with the out offices and compound belonging to it. The purchaser
