Narayan Nagappa Hegde v. Shankar Narasimha Bhat

1. The question of law that has been raised by the learned counsel for the respondent in this revision petition relates to the competence of this Court to entertain this petition under Section 115 of the Code of Civil Procedure to revise the order passed by the Assistant Commissioner under Section 23(2) of the Mamlatdars' Courts Act, 1906.

2. The petitioner commenced the suit which has given rise to this revision petition, by filing a plaint on 18th May 1959 under Section 7 of the Mamlatdars' Courts Act, 1906 (hereinafter called the Act) in the Court of the Mamlatdar (now called the Tahsildar) at Yellapur, praying for the issue of an in junction restraining the respondent from causing disturbance to his peaceful possession and enjoyment of Survey No. 5 of Kodlagadde village. He contended that he had been in possession of the land in spite of the potmulgeni lease that he had executed in favour of the respondent since the Tahsildar declined to certify the sub-lease as being in contravention of the provisions of the Bombay Tenancy and Agricultural Lands Act, and he never delivered possession in pursuance of that document. The respondent, however, contended that he had been put in possession and had been cultivating the land himself since the date of his lease. After recording evidence of both the parties the Tahsildar held in favour of the petitioner and issued an order of injunction; against that order the respondent approached the Assistant Commissioner who set aside the order and remanded the case back to the Tahsildar for disposal. On enquiry, the Tahsilddar decreed the suit on 3rd August 1962 and issued an order of injunction against the respondent restraining him from causing any disturbance in the peaceful possession and enjoyment of the land by the petitioner. The respondent preferred revision Petition No. JNC-SR-111/9 before the Assistant Commissioner, Sirsi Division who allowed his petition and dismissed the suit, holding that it was the respondent who was in possession of the hind since the date of the sub-lease. It is the legality of this order that has been impugned in the present revision petition.

3. Mr. Datar the learned counsel for the petitioner submitted that the Assistant Commissioner had no jurisdiction to interfere with a finding of fact under Section 23(2) of the Act and that the order dismissing his client's suit was without jurisdiction. Mr. Krishnaswami Rao the learned counsel for the respondent tried to justify the order of the Assistant Commissioner on the ground that the Tahsildar had failed to consider the entire evidence in the case and that the Assistant Commissioner had jurisdiction to interfere with the order. He further raised a preliminary objection as to the competency of this Court to entertain the revision petition under Section 115 of the Code of Civil Procedure.

4. Before entering into a discussion of the competency of this Court, it is convenient to dispose of the petitioner's challenge to the impugned order. Section 23 of the Act may be read here—

“23(1) There shall be no appeal from any order passed by a Mamlatdar under this Act.

(2) But the Collector may call for and examine the record of any suit under this Act, and if he considers that any proceeding, finding or order in such suit is illegal or improper, may, after due notice to the parties, pass such order thereon, not inconsistant with this Act, as he thinks fit.

(2A) The Collector may delegate the powers conferred on him by this section to any Assistant Collector, Deputy Collector or Assistant Commissioner subordinate to him;

(3) Where the Collector, Assistant Collector, Deputy Collector or Assistant Commissioner takes any proceedings under this Act he shall be deemed to be a Court under this Act.”

It is manifest from the wording of sub-section (2) of Section 23 that the Collector, or the Assistant Commissioner under the delegated powers gets jurisdiction to interfere with an order passed by the Mamlatdar under this Act only if the finding or the order passed by him is illegal or improper. I have been taken through the orders passed by the Tahsildar as also the Assistant Commissioner by Mr. Krishnaswami Rao. I do not find that there is any substance in the letter's contention that the order of the Tahsildar was improper as he had failed to consider part of the evidence. The Tahsildar has considered the entire evidence on record. On the other hand, the Assistant Commissioner has drawn his conclusions mainly upon what he calls the local practice of handing over possession simultaneously with the execution of the sub-lease. There is no evidence either about the local practice or about the delivery of actual possession in the present case. The main ground for interfering with the finding as expressed by the Assistant Commissioner himself is that he disagreed with the conclusion of the Tahsildar.

5. In support of his contention Mr. Datar has placed reliance on the decision of the Bombay High Court in Babaji Kondaji v. Bala Fakira(1), which is on all fours with the facts of the present case. Beaumont C.J briefly reviewed the earlier decisions of that High Court which had consistently taken the view that in exercising his powers of revision, ‘the Collector was not entitled to set aside the Mamlatdar's order merely because he disagreed with the findings of the Mamlatdar who was competent to arrive at those findings’. This Court had to consider in Maharudrappa Puttappa Arali v. Shankaragouda Fakirgouda Patil, the jurisdiction of the Revenue Appellate Tribunal acting under Section 79 of the Bombay Hereditary Offices Act, 1874, which is identical with Section 23(2) of the Act in its wording, and accepted the view taken by Beaumont C.J in the aforesaid case as regards the effect of sub-section (2) of Section 23 of the Act. It is not the case of Mr. Krishnaswami Rao that the Tahasildar's order suffered from any illegality or was vitiated by any irregularity. I have held above that his only contention that the appreciation of the evidence by Tahsildar was defective in the sense that part of the evidence had been left out of consideration is without substance. Hence on merits, the petition must succeed.

6. Coming to the preliminary objection as regards the competence of this Court, Mr. Krishnaswami Rao's objection is two-fold. (1) he contends that the Courts of the Mamlatdar and of the Assistant Commissioner are not civil Courts and (2) even if they are held to be civil Courts they are not subordinate to the High Court and that this Court has therefore no jurisdiction under Section 115 of the Civil Procedure Code to entertain this petition. In reply, Mr. Datar referred to the decision in Babaji Kondaji's Case(2) and particularly to the following passage from the judgment of Beaumont C.J:

“It is very undesirable that the practice of the Court in this case should remain in doubt. It is a hardship on litigants if they do not know whether an application in revision against an order of the Collector under Section 23(2), Mamlatdars' Courts Act, will be entertained or not. In my opinion, on the balance of the authority it must be taken as settled that the Court will interfere in this ease. It is clear that such a case falls within the terms of Section 115, Civil Procedure Code because the basis of the decisions of this Court has been that the Collector has assumed his jurisdiction in appeal, which he does not possess under the Act, and has therefore exercised a jurisdiction not vested in him. The question is one as to the practice of the Court and in my judgment the practice must now be taken as settled in favour of interference in a proper case.”

The aforesaid passage was quoted with approval by S.R Das Gupta, C.J in the aforementioned decision of this Court.

7. Mr. Krishnaswami Rao concedes that the Bombay High Court has consistently taken the view that the High Court has jurisdiction to entertain a revision petition against an order passed by the Collector or the Assistant Collector under Section 23(2) of the Act but submits that none of the decisions had expressly considered the aspects of the contention raised by him. Mr. Datar has further relied on the decision of the Bombay High Court in Purushottam Janardan Chaphekar v. Mahadu Pandu Turmalkar, where the question of jurisdiction of the High Court under Section 115 has been considered. Scott C.J who delivered the judgment of the Court, observed—

“The Mamlatdars' Courts Act, however, expressly constitutes the Collector (taking proceedings under that Act) a Court, and it has been ruled in The Collector of Thana v. Bhaskar Mahadev Sheth, that the Collector when exercising judicial functions is subject to the superintendence and control of the High Court.

Section 115 of the Civil Procedure Code authorizes the High Court to call for the record of any case which has been decided by any Court subordinate to such High Court and there can, we think, be no doubt that the Collector as a Court, under the Mamlatdars' Courts Act, is subordinate to the High Court.

Reference has been made to Section 3 of the Civil Procedure Code in which certain Courts are stated to be subordinate to the High Court, but that does not exclude all other Courts from the category of Courts subordinate to the High Court.”

Most of the subsequent decisions of the Bombay High Court have accepted the view taken by Scott C.J It must be conceded that the judgment does not disclose the grounds on which the Court concluded that the Court of the Collector was a Civil Court. As regards the subordination of the Collector's Court to the High Court, the interpretation placed on Section 3 of the Civil Procedure Code indicates that the enumeration of ‘subordinate’ Courts is only illustrative and not exhaustive of other categories of Courts subordinate to the High Court.

8. Mr. Krishnaswami Rao does not dispute the fact that under the Act the Mamlatdar and the Assistant Commissioner exercising their respective powers are Courts. I have already referred to Section 23(3) where express provision has been made to the effect that where the Collector or the Assistant Collector takes any proceedings under this Act he shall be deemed to be a Court under this Act.

9. I have next to consider whether the Courts constituted under the Act are Civil Courts for the purpose of Section 115 of the Civil Procedure Code. Whenever a question is raised as to whether any Court, Tribunal or authority is a Civil Court, that question has to be determined with reference to the specific provisions contained in the enactment which constitutes such Court and cannot be answered generally without reference to the powers and functions entrusted to it thereunder. The expression ‘civil court’ has not been defined in any Act or the Code. The Code of Civil Procedure in its preamble indicates that it is an Act to consolidate and amend the laws relating to the Courts of civil judicature, in other words, the courts which have jurisdiction to deal with civil disputes and rights pertaining to property and person. Section 5(1) of the Code empowers the State Government to apply by notification either with or without modifications, provisions contained in the Code of Civil Procedure to ‘any revenue court’ where the special enactment applicable to such court is silent upon any matter of procedure. So far as the Act is concerned, Sections 7 to 20 contain provisions which are almost identical with those contained in the Code of Civil Procedure regarding the contents of plaint, requirements of the plaintiff to subscribe and verify the contents thereof, the rejection and return of plaint, the examination of the parties and witnesses on oath, the rejection of the plaint on default of the plaintiff, power to render an exparte decision in the absence of the defendant, adjournment of proceedings provision for addition of parties and substitution of legal representatives on the death of a party, the points which the Mamlatdar has to decide at the hearing of suits under the Act and the need of endorsing an order on plaint and of reading it in open court. Section 21 provides for execution of the orders including the order for recovery of costs while Section 22 provides for delivery of possession without prejudice to the rights of parties ‘until otherwise decreed or ordered or until ousted by competent civil courts’. In this connection, it is pertinent to refer to Class (a) and (b) of Section 5(1) of the Act which enumerates the powers which every Mamlatdar presiding over the Court can exercise within the territorial limits of his jurisdiction. They read as follows—

“5(1) Every Mamlatdar shall preside over a Court, which shall be called a Mamlatdat's Court, and which shall, subject to the provisions of sections 6 and 20, have power, within such territorial limits as may from time to time be fixed by the State Government,—

(a) to remove or cause to be removed any impediment, erected otherwise than under due authority of law, to the natural flow in a defined channel or otherwise of any surface water naturally rising in or falling on any land used for agriculture, grazing, trees or crops, on to any adjacent land, where such impediment causes or is likely to cause damage to the land used for such purpose or to any such grazing, trees or crops thereon;

(b) to give immediate possession of any lands or premises used for agriculture or grazing, or trees, or crops, or fisheries, or to restore the use of water from any well, tank, canal or water-course, whether natural or artificial, used for agricultural purposes to any person who has been dispossessed or deprived thereof otherwise than by due course of law, or who has become entitled to the possession or restoration thereof by reason of the determination of any tenancy or other right of any other person, not being a person who has been a former owner or partowner, within a period of twelve years before the institution of the suit of the property or use claimed, or who is the legal representative of such former owner or part-owner:

Provided that, if in any case the Mamlatdar considers it inequitable or unduly harsh to remove or cause to be removed any such impediment or, to give possession of any such property or to restore any such use to a person who has become entitled thereto merely by reason of the determination of any such tenancy or other right, or if it appears to him that such case can be more suitably dealt with by a Civil Court, he may in his discretion refuse to exercise the power aforesaid, but shall record in writing his reasons for such refusal.”

A careful examination of these provisions of Section 5 would disclose that the powers of the Mamlatdar relate to adjudication of disputes in regard to possession and enjoyment of lands including rights to receive surface water, grazing of cattle, growing trees, etc. The very fact that the proviso quoted above expressly empowers the Mamlatdar to refuse to adjudicate any of the claims brought before him under the Act for reasons to be recorded in writing ‘if it appears to him that such case can more suitably be dealt with by a civil court’ is sufficient to hold that the jurisdiction of the Mamlatdar is identical with that of the civil Court in the aforesaid matters except that his decision is subject to the final decision of a competent civil court. It may be useful to refer to the definition of a ‘revenue court’ in Section 5(2) of the Code. A ‘revenue court’ is defined as meaning ‘a court having jurisdiction under any local law to entertain suits for or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a civil court having original jurisdiction under this Code to try suits or proceedings as being suits or proceedings of a civil nature’. If this definition is considered in the light of what is contained in Section 5 of the Act, I have very little doubt in holding that the court of the Mamlatdar, Collector or Assistant Collector under the Act is a Civil Court.

10. In this connection Mr. Krishnaswami Rao contended that the Mamlatdar who presided over the Court or the Collector or the Assistant Collector who presided over the Court of revision, was a revenue officer in no way subordinate to the High Court and that therefore a Court presided by such an officer could not be considered to be a civil court. In my opinion neither the designation of the officer presiding over the Court nor the authority in whom the power of making the appointment of such a presiding officer vests is relevant. In that sense even the officers presiding over the civil courts are appointed by the Governor. What is, however, material is the power and the function which the law creating the court entrusts such a presiding officer.

11. The learned Advocate for the respondent placed strong reliance on the decision of the Andhra Pradesh High Court in Peyyeti Jagannadha Rao… v. Pamari Venkateswar Rao…. in which it has been held that the Tahsildar and the Revenue Divisional Officer acting under Section 16 of the Andhra Tenancy Act are not courts subordinate to the High Court. In arriving at that decision their Lordships have stated that the problem has to be tackled with reference to Section 16 of the Andhra Tenancy Act, 1956, and the decision mainly rests on the provisions contained in that Act. On a review of the relevant provisions, their Lordships concluded—

“In our opinion the Tahsildar and the Revenue Divisional Officer on whom certain powers are conferred to decide certain disputes between the landlord and the tenant as indicated in that Section (i.e, Section 16) are administrative Tribunals empowered to discharge functions of a quasijudicial nature.”

In recording this conclusion, their Lordships also took into consideration that only some of the provisions of the Code of Civil Procedure had been made specifically applicable to an enquiry by a Tahsildar, that there was nothing in the Act which indicated the subordination of those Tribunals to the High Court and that the position of officers discharging the functions under Section 16 of the Andhra Tenancy Act could not be equated to that of a court since they do not fall within the category of ‘courts’ enumerated in the Madras Civil Courts Act’. It may be pointed out with utmost respect that their Lordships have put a narrow construction on the expression ‘civil court’ and on Section 3 of the C.P Code which deals with subordination of courts. Such a view would exclude a large body of Tribunals and authorities which are expressly constituted as ‘courts’ and are entrusted with powers and functions of deciding disputes of a civil nature. It appears from paragraph 18 of the judgment that their Lordships' attention was drawn to an earlier decision of that High Court in Rajah of Venkatagiri v. Shaik Mahaboob Saheb in which the Court held that the sub-Collector acting under Section 15(4) of Act No. 4 of 1938 and the District Collector purporting to act under Section 205 of Act No. 1 of 1938 were both acting as Civil Courts. That decision was held inapplicable to the question before their Lordships on the ground that “both the functionaries were described as courts in the relevant provisions of the Statutes”. I may respectfully point out that the decision of Rajah of Venkatagiri's Case swami Rao, viz., whether the Sub-Collector and the District considered both the aspects of the question raised by Krishna-Collector functioning under the provisions of the Madras Agriculturists Relief Act, 1938 were Civil Courts and if so whether those Courts were subordinate to the High Court under Section 115 of the Code. In considering this question, their Lordships came to the conclusion that Section 3 of the Code was not exhaustive and did not exclude other courts which were ‘otherwise civil courts’. Adverting to what is the distinguishing characterstic of a Civil Court, their Lordships referred to the decision of the Privy Council in Nilmoni Singh Deo v. Taranath Mukherjee where the rent Courts established by Act No. X of 1859 were held to be civil courts within the meaning of Act No. VIII of 1859 and under Section 284 of Act No. VIII of 1859 (i.e, the Code of Civil Procedure than in force). During the course of the judgment their Lordships of the Judicial Committee dealt with the distinction between the rent Courts and civil Courts and pointed out that the former exercised powers over suits of a limited class and then observed—

“……In that sense there is a distinction between the terms; but it is entirely another question whether the rent Court does not remain a Civil Court in the sense that it is deciding on purely civil questions between persons seeking their civil rights, and whether, being a civil Court in that sense, it does not fall within the provisions of Act 8 of 1859.”

Thus the main reason for holding the Rent Court to be a Civil Court was that it was ‘deciding on purely civil questions between persons seeking their civil rights.’ Following this decision, the Madras High Court held in the Rajah of Venkatagiri's Case that the sub-Collector and the District Collector were Civil Courts. These decisions fully sustain the view that the Courts of the Tahsildar and of the Assistant Commissioner under the Act are civil Courts.

12. Now I proceed to consider whether these Courts are subordinate to the High Court under Section 115 of the Code. I have already referred to the views of the Bombay High Court with reference to the decisions in Purushottam's Case and Babaji Kondaji's Case. An exhaustive discussion of this point is found in the following passage from the judgment of Patanjali Sastri J. in Rajah of Venkatagiri's Case(3):—

“……‘subordination’ is nowhere defined, but, Section 3 of the Code declares:

‘For the purposes of this Code, the District Court is subordinate to the High Court, and every civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court’.

To say that the Collector's Court is a ‘Civil Court’ within the meaning of this section will be a simple and complete solution of the problem. In our judgment, it is also the correct solution. The preamble to the Code indicates that it is an Act to consolidate and amend the law relating to the procedure of the ‘Courts of civil Judicature’. Section 2(4) defines a ‘District Court’ as the Principal civil Court of original jurisdiction in a ‘District’ and Section 3(24), General Clauses Act, says that,

‘High Court’ used with reference to civil proceedings shall mean the highest civil court of appeal (not including the Federal Court) in the part of British India in which the Act or Regulation containing the expression operates.’

From these provisions it seems to us that Section 3 of the Code must be interpreted as a comprehensive declaration, as a matter of corolary, of the subordination of all ‘Courts of civil judicature’ to the District Court in a District area and to the High Court in a provincial area. There can be little doubt that in the present case the Sub-Collector and the District Collector were hearing and determining disputes of a civil nature and we see no sufficient reason why the proceedings before them should not be regarded as ‘civil proceedings’ and their Courts as ‘civil Courts’ for the purposes of Section 3. It is very difficult to suppose that the Legislature, in enacting, as part of a consolidating Code, a provision dealing with the subordination of Courts in hierarchy of civil Courts in the country, could possibly have left out of account an important class of Courts dealing with particular kinds of civil proceedings assigned to them by special or local laws.”

13. I concur most respectfully with this reasoning. Mention may be made of the Full Bench decision of the Patna High Court in Arjun Rautara v. Maharaja Krishna Chandra Gajapati Narayan Deo in which the question raised was whether the Deputy Collector functioning under the Orissa Tenancy Act was a Civil Court subordinate to the High Court within the meaning of Section 115 of the Code. The question was answered in the affirmative with reference to the specific provisions of that Act. In dealing with the question as to whether the Court of the Deputy Collector functioning under the Act was subordinate to the High Court, Meredith J. observed—

“…… The most obvious course ill seeking to ascertain the connotation of the word ‘subordinate’, as used in Section 115, Civil Procedure Code, is to look to the Code of Civil Procedure itself. Section 3 of this Code says:

‘For the purposes of this Code, the District Court is subordinate to the High Court, and every civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.’

In my view it plainly follows from this that if the revenue Courts hearing suits under the Orissa Tenancy Act are civil Court of a grade inferior to that of a District Court, then they are subordinate within the provisions of Section 3 and so of Section 115……….”

I am in full agreement with this reasoning. Mr. Krishnaswami Rao drew my attention to the decision of the Bombay High Court in Peoples own Provident and General Insurance Co. v. Guracharya. Where a single Judge of that High Court came to the conclusion that Debt Adjustment Board set up under the Bombay Agricultural Debtors Act, 1939 was not a Court subordinate to the High Court in order to attract the application of Section 115 of the Code. I have gone through the judgment and I disagree, with great respect, with the view expressed therein. The Judgment is brief and makes no reference to the earlier decisions of that High Court bearing on the question of Courts which are subordinate to the High Court under Section 115 of the Code.

14. Lastly, the learned counsel relied upon another Division Bench decision of that High Court in Parvatibai Utamlal v. Tupa Keshav where the question for decision was whether an order made by the Collector under Section 24 of the Bombay Tenancy Act, 1939 was subject to the revisional jurisdiction of the High Court. It will be clear from the judgment that the case was decided with particular reference to the provisions contained in the enactment. It may be mentioned that Section 28 of the Act contained an express provision that “Except in cases provided in Section 12, in all matters connected with this Act, the Provincial Government shall have and exercise the same authority and control over the Collectors and Mamlatdars as they have and exercise over them in the general and revenue administration”. After referring to this Section, Sen J. who delivered the leading judgment of the Court, observed that the provision in Section 28 clearly indicated that an order made by the Collector under Section 24 of the Act was subject to the revisional jurisdiction not of the High Court but of the Provincial Government. In recording this conclusion his Lordship observed that though the word ‘subordinate’ as used in Section 115 of the Code was primarily confined to Civil Courts exercising their powers under the Code, ‘it is open to the Legislature to say by express provisions, or to intend by manifest implication, that the decision of a special Court on a civil question should be subject to the revisional jurisdiction of the High Court.’ The same view is expressed by the Full Bench decision of the Allahabad High Court in Balgopal v. Mohan Singh in which it was held that the Tribunal constituted under Section 4 of the Displaced Persons (Debts Adjustment) Act, 1951, is a court subordinate to the High Court within the meaning of Section 115 of the Code of Civil Procedure and that a revision lies under that Section against the orders passed by such a Tribunal.

15. Considering the decisions discussed above, the relevant Sections of the Code of Civil Procedure and the provisions of the Act, I am of the considered opinion that the Mamlatdar and the Collector or the Assistant Collector functioning under the Act are Courts subordinate to the High Court and revision petition can be entertained under Section 115 of the Code.

16. On merits, I have already indicated that the Assistant Commissioner has exceeded his jurisdiction in passing the impugned order. He was not competent to enter into questions of fact and re-assess the evidence while disposing of the revision petition. I therefore hold that this is a fit case in which this Court should exercise its powers under Section 115 of the Code of Civil Procedure.

17. I accordingly allow this petition, set aside the order passed by the Assistant Commissioner and restore the order of the Tahsildar, with costs.