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High Court Of Madhya Pradesh
Shiv Dayal, J.
PHULUWA - Appellant
Versus
LAXMICHAND SITABRAI - Respondents
Misc. Civil Appeal 20 Of 1957
Decided On : 10/26/1959
QANOON MAL - SECTIONS 325, 326, 377 - SPECIFIC RELIEF ACT - SECTION 8 - LIMITATION ACT - ARTICLES 113, 144 - JURISDICTION OF CIVIL COURT - RES JUDICATA - LIMITATION - LEASE OR AGREEMENT TO LEASE - DISTINCTION.
Fact of the Case:
Plaintiff brought a suit for possession of agricultural land based on a patta granted by defendants. The patta was registered, but possession was not delivered. Plaintiff served a notice to defendants to deliver possession, but they did not comply. Plaintiff then instituted a suit under Sections 325 and 326 of the Qanoon Mal before the Tahsildar, which was dismissed as he had not been given possession. Plaintiff then filed a civil suit for possession and mesne profits, or alternatively, for the return of consideration paid for the patta. Defendants contended that the civil court lacked jurisdiction, the suit was barred by limitation, and the matter was res judicata.
Finding of the Court:
The court held that the civil court had jurisdiction to try the suit as the plaintiff's claim was based on a patta and not on physical possession and dispossession. The court also held that the suit was not barred by limitation as Article 144 of the Limitation Act applied, which provides a limitation period of 12 years for suits for possession of immovable property. The court further held that the principle of res judicata did not apply as the plaintiff's previous suit before the Revenue Court was dismissed on the ground that he had not been in possession.
Issues: 1. Whether the civil court had jurisdiction to try the suit. 2. Whether the suit was barred by limitation. 3. Whether the matter was res judicata.
Ratio Decidendi: 1. The court held that the civil court had jurisdiction to try the suit as the plaintiff's claim was based on a patta and not on physical possession and dispossession. The court relied on Section 8 of the Specific Relief Act, which provides that a suit for specific performance of a contract may be instituted in a civil court. 2. The court held that the suit was not barred by limitation as Article 144 of the Limitation Act applied, which provides a limitation period of 12 years for suits for possession of immovable property. The court distinguished the case from those where Article 113 of the Limitation Act applies, which provides a limitation period of three years for suits for specific performance of contracts. The court held that Article 113 applies to suits for specific performance of executory contracts, while Article 144 applies to suits for specific performance of contracts that create an interest in property. 3. The court held that the principle of res judicata did not apply as the plaintiff's previous suit before the Revenue Court was dismissed on the ground that he had not been in possession. The court held that the plaintiff was not given an opportunity to be heard on the merits of his case and, therefore, the dismissal of the previous suit did not bar the present suit.
Final Decision: The court dismissed the appeal and upheld the order of the first appellate court remanding the case for trial of the remaining issues.
( 1 ) THE respondent brought a suit against the appellants for an agricultural land on the basis of patta granted by the defendants in favour of the plaintiff o 231-1946. The patta was registered. The plaintiff, as advised, gave a notice to the defendants on 26-3-1946 to deliver possession to him. Since the defendants did not deliver possession to him he instituted a suit under Sees. 325 and 326 of the Qanoon Mal before the Tahsildar, Bhilsa. That matter went up to the Board of Revenue. The plaintiff did not succeed'there because it was held that he had not been given possession and as such he could not bring a suit under Sec. 326 or 325 of the Qanoon Mal. The plaintiff then brought this civil suit for possession and also claimed mosne profits. In the alternative the plaintiff claimed a decree for the return of consideration for the patta viz. Rs. 495/ -. The suit was instituted on 22-101954. The defendants resisted the suit inter alia on the ground that the civil Court had no jurisdiction to try it; that the suit was barred by time; and that the matter was res judicata,
( 2 ) THE learned trial Judge held that the suit was competent and that it was not res judicata, but it was dismissed as time barred, by applying Article 113 of the Limitation Act.
( 3 ) ON appeal the Additional District Judge Bhilsa held that Article 144 of the Limitation Act applied and the first prayer, but not the second prayer, made in the suit was within limitation. He also affirmed the decision of the trial Judge on the other two questions. He, therefore, set aside the decree of the trial Judge and remanded the case for trying the remaining issues.
( 4 ) IN this second appeal against the order of remand Shri Patankar contends that the Civil Court has no jurisdiction to try the suit. He relies on Section 377 (1) of the Qanoon Mal, which reads thus : ^^tks nkos c:; dkuwu gktk dkfoy lekvr vnkyr eky djkj fn;s x;s gs og rkcs vgdke nqk 313 vnkyr nhokuh esa lekvr u gksxs] tc rd fd mudh lekvr fd;s tkus dh ckcr dkuwu gktk esa lkq fgnk;r ntz u gksa** The argument is that the plaintiff could bring this suit under Ss. 325 and 326 of the Qanoon Mal. I am of the opinion that in the first place, the defendants cannot raise the objection because when the plnintiff went to the Revenue Courts, he was not heard on the ground that he had not been in possession and, therefore, he could not bring a suit under those sections of the Qanoon Mal. The learned counsel makes a distinction on the ground that the revenue suit which was instituted by the plaintiff was on the basis of notice and not on the basis of a patta. This argument is not tenable because at the very outset the Board of Revenue mentioned in its judgment, the Patta dated 23-1-1946 and an earlier patta. There it was urged by the defendants that the suit could not be decreed just because of the patta and accepting that contention the Board held that since the possession had not been delivered to the plaintiff, he could not bring the suit under Section 325 or 326 of the Qanoon Mal and it was further observed that if possession had not been given to the plaintiff he should have taken proceedings for that purpose. Having successfully contended before the Revenue Court that the suit under Section 325 or 326 of the Qanoon Mal was not competent defendants cannot be allowed to approbate and reprobate. They cannot challenge the jurisdiction of the Civil Court on the ground that the plaintiff had the remedy under Sections 325 and 326 of the Qanoon Mal.
( 5 ) THAT aside, I am clear in my mind that the present suit as instituted by the plaintiff could not be instituted either under Sec. 326 or 325 of the Qanoon Mal. Both these sections, contemplate physical possession of the plaintiff first and then his dispossession by the defendants. Here the plaintiff's allegation is that he was granted a patta but not given possession of the land. Such a suit could be instituted in the Civil Court only. Sec. 8 of the Specific
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