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1958 Supreme(Pat) 16
PATNA HIGH COURT
V.Ramaswami and R.K.Choudhary JJ.
Mahendra Singh
Versus
Commissioner Of Chota Nagpur Division
Miscellaneous Judicial Case No. 464 of 1956 ;
Decided On : JANUARY 20, 1958
The Civil Procedure Code did not apply to the Kolhan area, and Wilkinson's Rules, framed under Regulation XIII of 1833 and continued by Act XIV of 1874, were valid and applicable to the suit.
Headnote:
KOLHAN TITLE SUIT - JURISDICTION - WILKINSON'S RULES - VALIDITY - CIVIL PROCEDURE CODE - APPLICABILITY - RES JUDICATA - AWARD - DECREE - EFFECT.
Fact of the Case:
Petitioners challenged the order of the Additional Deputy Commissioner of Singhbhum and the Commissioner of Chota Nagpur Division, affirming the decree in a Kolhan Title suit, contending that the Civil Procedure Code applied to the area and the suit should have been tried under its provisions, not under Wilkinson's Rules.
Finding of the Court:
The court held that the Civil Procedure Code did not apply to the Kolhan area, as it was excluded by Section 1(3) of the Code, and that Wilkinson's Rules, framed under Regulation XIII of 1833 and continued by Act XIV of 1874, were valid and applicable to the suit. The court also held that the decision of the Munsif of Chaibassa in a previous title suit operated as res judicata in the Kolhan suit, as the issue of title arose between the same parties and the land in dispute was the same.
Issues: 1. Whether the Civil Procedure Code applied to the Kolhan area. 2. Whether Wilkinson's Rules were valid and applicable to the suit. 3. Whether the decision of the Munsif of Chaibassa in a previous title suit operated as res judicata in the Kolhan suit.
Ratio Decidendi: 1. Section 1(3) of the Civil Procedure Code excluded the Kolhan area from its application. 2. Wilkinson's Rules were framed under Regulation XIII of 1833 and continued by Act XIV of 1874, and were valid and applicable to the suit. 3. The issue of title arose between the same parties and the land in dispute was the same in both suits, therefore the decision of the Munsif of Chaibassa operated as res judicata in the Kolhan suit.
Final Decision: The petition was dismissed with costs.
V.Ramaswami, J.
1. In this case the petitioners have applied for a writ in the nature of certiorari to quash the order of the Additional Deputy Commissioner of Singh bhum, dated 28-2-1952 in Kolhan Title suit, No. 11 of 1951, and also the order of the Commissioner of Chota Nagpur Division, dated 29-2-1956, affirming the same in Kolhan Title Appeal No. 53 of 1952.
2. It appears that in March, 1951, opposite parties Nos. 3 to 6 filed a Kolhan Title suit against the petitioners in the court of the Additional Deputy Commissioner of Singhbhum, praying for a declaration of the plaintiffs title to the suit land and for recovery of khas possession by eviction of the defendants. The suit was tried by the Additional Deputy Commissioner of Singhbhum under Wilkinsons Rules and a decree was granted to the opposite parties Nos. 3 to 6 on 28-2-1952. The petitioners preferred an appeal to the Commissioner of Chota Nagpur Division, but the appeal was dismissed and the order of the Additional Deputy Commissioner in the Kolhan Title suit was affirmed. The contention of the petitioners is that the Civil Procedure applies to the area and the suit ought to have been tried not under the Wilkinsons Rules but under the provisions of the Civil Procedure Code. It is, therefore, contended that the Additional Deputy Commissioner of Singhbhum had no jurisdiction to grant a decree in the Kolhan Title suit and the Commissioner of Chota Nagpur Division had no jurisdiction to hear the appeal from that decree.
3. The first ground taken by learned Counsel on behalf of the petitioners is that the Additional Deputy Commissioner of Singhbhum adopted a procedure prescribed by Wilkinsons Rules which are no longer in force. In support of this argument reference was made to a judgment of this court in K.K. Sinha V/s. Basudeo Harjiwan, Misc. Judl. case No. 392 of 1952, D/-22-12-1952 (A) in which it was held that Act II of 1951 amended the Civil Procedure Code so as to extend its operation to the whole of India, including the so-called scheduled districts, with the exception of certain Tribal Areas in the State of, Assam, in the State of Madras and in the State of Jammu and Kashmir and the State of Manipur, Act II of 1951 received the assent of the President on 17-2-1951, and came into effect from that date, and so it was held by the High Court in that case that the Civil Procedure Code applied to the entire district of Singhbhum, including the scheduled area of Kolhan.
But on behalf of the State of Bihar it was pointed out by learned Counsel that the effect of this judgment was superseded by the issue of a notification by the State Government, dated the 26th August, 1953, issued in exercise of the authority conferred on the State Government by sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India. The notification of the State Government is in the following terms :-
"No. A/AB-303/53-3533J. - In exercise of the powers conferred by sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India the Governor of Bihar is pleased to direct that the Code of Civil Procedure (Amendment) Act, 1951 (II of 1951) shall not apply to the Sadr Sub-divisional of the district of Singhbhum except the areas comprised within the Chaibassa and Charakdhar Municipalities.
2. This notification shall be seemed to have come into force on the 1st April 1951, the date on which the said Act was brought into force by the Central Government,
By order of the Governor of Bihar,
R. Singh, Secy."
In view of this Government notification J do not think that the ratio of the decision in Misc Judicial Case No. 392 of 1952 (A) has any application to the present case. It was further contended on behalf of the petitioners that even before the promulgation of Act II of 1951 the Civil Procedure Code was in force in the Kolhan area. I do not think there is any substance in this argument. Sec.1 of the Civil Procedure Code as it stood before the Amending Act
