Back
HIGH COURT OF ANDHRA PRADESH
JAGANMOHAN REDDY,QAMAR HASAN,KUMARAYYA, JJ.
Sarkar-E-Aali Zaria Nazim
Versus
Athar
Appeal No. 1887/4 of 1357F. against decree of Chief Judge, City Civil Court, Hyderabad
Decided On : 08-04-1957
SUIT FOR POSSESSION - AGAINST DIRECTOR OF ENDOWMENTS - WHETHER MAINTAINABLE - WHETHER SUIT SHOULD HAVE BEEN AGAINST GOVERNMENT OR AGAINST DIRECTOR OF ENDOWMENTS OR AGAINST INDIVIDUAL DIRECTOR WHO ILLEGALLY TOOK POSSESSION PURPORTING TO ACT IN HIS OFFICIAL CAPACITY - WHETHER SUIT AGAINST GOVERNMENT SERVANT AS SUCH ONLY A NOTICE U/S 439 IS TO BE GIVEN TO A PARTICULAR GOVERNMENT SERVANT ECONOMIZE FOR ANY ACT PURPORTING TO BE DONE IN HIS OFFICIAL CAPACITY - WHETHER THE SUIT SHOULD HAVE BEEN AGAINST THE GOVERNMENT OR AGAINST THE NAZIM, UMOOR-E-MAZ-HABl, (DIRECTOR OF ENDOWMENTS) OR AGAINST THE INDIVIDUAL DIRECTOR WHO ILLEGALLY TOOK POSSESSION PURPORTING TO ACT IN HIS OFFICIAL CAPACITY - WHETHER THE SUIT AS FRAMED BY THE PLAINTIFF IS MAINTAINABLE OR NOT - WHETHER THE SUIT SHOULD BE AGAINST THE ACTUAL WRONG DOER OR WRONG-DOERS PERSONALLY AND NOT AGAINST THE SERVANT OR AGENT OF THE CROWN OR OF THE DEPARTMENT - WHETHER THE GOVERNMENT CANNOT BE SUED - WHETHER IN REGARD TO SUITS OR CONTRACTS THE GOVERNMENT AS SUCH CANNOT CLAIM ANY LIABILITIES OF BEING SUED - WHETHER A SUIT BASED ON TORT WILL NOT LIE AGAINST THE GOVERNMENT IN RESPECT OF THE ACTS AND DEFAULTS OF ITS SERVENTS - WHETHER THE GOVERNMENT SERVANT TO WHICH A REFERENCE IS MADE THEREIN, IS THE NATURAL PERSON - WHETHER THE OFFICE OR THE GOVERNMENT DEPARTMENT IS NOT A PERSON NOT ONLY BECAUSE IT IS NOT INCLUDED IN THE SAID DEFINITION BUT BECAUSE IT IS NEITHER A NATURAL PERSON NOR AN ARTIFICIAL PERSON, FORE A LEGAL PERSON - WHETHER THE SUIT RELATING TO ANY ACT DONE BY A GOVERNMENT SERVANT IN HIS OFFICIAL CAPACITY WOULD BE ONE AGAINST HIM PERSONALLY AND NOT AGAINST THE OFFICE AS SUCH WHICH HE HOLDS - WHETHER THE SUITS AGAINST THE GOVERNMENT OR AGAINST THE GOVERNMENT SERVANT WERE GOVERNED BY DIFFERENT PROVISIONS OF LAW THAN THOSE GOVERNING IN INDIA AND PAKISTAN - WHETHER THE PROCEDURE RELATING TO SUITS AGAINST THE GOVERNMENT WERE MORE ANALOGOUS TO THOSE RELATING TO THE REMEDY BY WAY OF A PETITION OF RIGHT IN ENGLAND - WHETHER SUITS AGAINST THE GOVERNMENT SERVANT WERE OF TWO KINDS: (1) AGAINST HIM PERSONALLY AND (2) AGAINST HIM FOR ACTS DONE IN HIS OFFICIAL CAPACITY - WHETHER IF IT IS WITH RESPECT TO THE LATTER, IT MUST BE CONSIDERED WHETHER THE LIABILITY IS TO BE FOISTED ON THE GOVERNMENT OR AGAINST THE GOVERNMENT SERVANT - WHETHER IN SO FAR AS IT IS A SUIT AGAINST THE OFFICE WHETHER SUCH A SUIT WILL LIE OR NOT WOULD DEPEND UPON WHETHER THE OFFICE IS A JURISTIC PERSON OR NOT - WHETHER IT IS NOT EVERY PERSON THAT IS CLOTHED WITH JURISTIC PERSONALITY - WHETHER SUITS AGAINST THE GOVERNMENT SERVANT COULD ONLY BE FILED WITH I RESPECT TO ACTS DONE IN HIS OFFICIAL CAPACITY WHICH ARE TORTS - WHETHER THE NAZIM, UMOOR-E-MAZHABl C DIRECTOR OF ENDOWMENTS), WAS NOT A LEGAL OR JURISTIC PERSON AND THE RULES MADE UNDER THE ENDOWMENTS ACT RELATING TO THE FILING OF THE SUITS WERE ULTRA VIRES OF THE RULE MAKING POWER - WHETHER IF THE SUIT IS AGAINST ANY PARTICULAR GOVERNMENT SERVANT IN RELATION TO ACTS DONE IN HIS OFFICIAL CAPACITY, THE PROVISIONS OF SECTION 439 WILL OPERATE AND IF IT IS AGAINST HIM PERSONALLY AS SUCH NOT IN RELATION TO AN OFFICIAL ACT, THEN THE SAID PROVISIONS ARE INAPPLICABLE - WHETHER AN OFFICE OR AN OFFICER AS SUCH IS NOT A LEGAL PERSON, UNLESS BY ANY LAW A PARTICULAR DEPARTMENT! OR OFFICER HAS BEEN GIVEN THE JURIDICAL STATUS AND! THAT THE AWWAL TALUQDAR WAS NOT A LEGAL PERSON - WHETHER A PERSON WHO COMES WITHIN THE DEFINITION OF 'PERSON' DOES NOT CEASE TO BE A PERSON BECAUSE HE HAPPENS TO OCCUPY A POST.
Fact of the Case:
The Respondent purchased the disputed muigi in 1342F. from Mahbub Begum and in 1347F. proceedings were started as to the endowed nature of the disputed muigi and the Director of the Endowments ordered it to be registered as such in the Register for Endowments and thereafter by removing the Respondent's lock forcibly took possession of it. Before approaching the Court of law the Respondent moved the Endowment Authority for redress but without success. Consequently, he brought the present suit for relief as stated above.
Finding of the Court:
The trial Judge, alter a survey of the evidence adduced, found the above intentioned issues in favour of the Respondent and decreed the suit in the aforesaid terms.
Issues: 1. Whether the Plaintiff purchased the muigi in dispute on 8th Thir 1342F., from Mahbub Begum and whether she was competent to effect the sale? 2. Whether the Endowments Department broke open the lock and took possession of the muigi in dispute on 27th Khurdad 1347F.? 3. What is the effect in this suit of the order of the Court of Darul Qaza allowing die objection petition of Bhikamdas? 4. Whether the suit was within time? 5. Whether the suit was maintainable? 6. To what relief, if any, the Plaintiff is en-! titled?
Ratio Decidendi: The suit as framed is not maintainable. Whether it is considered as a suit against the Government or as against the Government servant u/s 439, Hyderabad Code of CPC the suit is liable to be dismissed.
Final Decision: The appeal is allowed, the judgment and decree of the trial Court reversed and the suit dismissed and in the circumstances there will be no order as to costs.
JUDGMENT
Qamar Hasan, J.
This is an appeal on behalf of the Director of Endowments against the judgment and decree dated 27th Bahman 1357F., of the First Judge, City Civil Court, awarding the Respondent the possession of mulgi bearing Municipal No. 6545/6546 situate in Maharaj Gunj, Hyderabad, and mesne profits amounting to O. S. Rs. 960/- and future mesne profits at the rate of Rs. 10/- per mensem till the date of the recovery of possession.
2. The Respondent's case, as set up in the plaint was that the muggy in disguise was mortgaged possessorily with one Zanuruddin in the year 1300F., on whose death the mortgagee's right devolved on his brother Waziruddin. On the hitter's death, in a suit brought for the distribution of his assets the indulge in question fell to the share of Mahbub Begum. Mahbub Begum in her turn sold it to the Respondent on 8th Tnir J.344F., by a registered sale-deed (page 13 of the printed copy).
One Mahbub Ali attached the muigi in execution of his decree in 1346- with the result that objection petitions were filed not only by the Respondent but also by one Bhikamdas. The objection filed by Bhikamdas was allowed and the Respondent withdrew the petition with, liberty to file a fresh petition as and when the occasion arose. Being fortified with the order passed on his objection petition, Bhikamdas applied for possession of the muigi but the Court of Darul Qaza in view of the fact that the Respondent was in its possession refused the petition and directed him to bring a suit for possession.
3. After the Respondent purchased the disputed muigi in 1342F. proceedings were started as to the endowed nature of the disputed muigi in 1343F., and the n Director of the Endowments ordered it to be registered as such in the Register for Endowments on 18th Meher 1345F., and thereafter by removing the Respondent's lock forcibly took possession of it on 27th Khurdad 1347F. Before approaching the Court of law the Respondent moved the Endowment Authority for redress but without success.
Consequently, he brought the present suit for relief as stated above. The Appellant in reply denied or pleaded want of knowledge with respect to all the material allegations made in the plaint and liaised the plea that the proper party to the suit was the Government and not the Appellant and since the necessary requirement of Act 5 of 1320F. had not been complied with, the suit was not maintainable. There was a further plea that the allegations in the plaint were vague and not clear as to whether the suit was against the Government or against a Public Officer in his official capacity.
4. On these pleadings, the following issues were raised:
1. Whether the Plaintiff purchased the muigi in dispute on 8th Thir 1342F., from Mahbub Begum and whether she was competent to effect the sale?
2. Whether the Endowments Department broke open the lock and took possession of the muigi in dispute on 27th Khurdad 1347F.?
3. What is the effect in this suit of the order of the Court of Darul Qaza allowing die objection petition of Bhikamdas?
4. Whether the suit was within time?
5. Whether the suit was maintainable?
6. To what relief, if any, the Plaintiff is en-! titled?
In order to substantiate the issues of fact adjusted as above, the Plaintiff-Respondent adduced documentary evidence and examined five witnesses in-
cluding himself. The Appellant, despite several opportunities given by the Court below, did not produce any evidence in rebuttal. The trial Judge, alter a survey of the evidence adduced, found the above intentioned issues in favour of the Respondent and decreed the suit in die aforesaid terms.
5. The learned advocate for the Appellant did not contest the appeal on facts. His main and the only attack was directed against the frame of the suit. It was contended by him that according to the Respondent's own showing in paras 5 and 12 of the plaint the alleged dispossession was not brought about by following the procedure laid down in Section 14 of the Dastur-ul-Amal
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
