Macleod, C.J:— The plaintiff instituted ??? action to recover possession of certain ??? which had been mortgaged to the ??? by Yamunabai, the plaintiff's decessor-in-title, on the ground that on death the alienation became void ??? section 5 of the Vatan Act. The first ??? in the trial Court was whether the ??? had jurisdiction to try the suit in ??? of the fact that the matter in suit dealt with before by the Assistant ???. It appears that the plaintiff had ??? to the Assistant Collector for an ??? that the Vatan land should be ??? from the possession of the ??? and delivered into the possession he petitioner. On that petition the ??? Collector replied.
“??? the document passed by Yamunabai bears ??? it has to be said that the said ??? was passed with your consent. There the land bearing Survey No. 270 cannot for resent he delivered over to you and as you want Survey No. 271 to be removed and to you application is disposed of.”
2. The trial Court held that the order of the Assistant Collector refusing to grant relief to the plaintiff was no bar to the suit. Then it held on the merits that the fact that the plaintiff had attested the mortgage deed executed by Yamunabai could not extend the period of the mortgage beyond the life-time of the mortgagor, and it passed a decree in favour of the plaintiff that the defendant should deliver up possession of the plaint property to him.
3. In first appeal it was argued that the Revenue Authorities having declined to restore the lands to the plaintiff under the provisions of the Vatan Act, the suit was barred by the Bombay Ravenue Jurisdiction Act. The learned appellate Judge came to the conclusion that the decision of the Assistant Collector refusing the relief asked for by the petitioner was an order within the meaning of section 4, clause (a) of the Bombay Revenue Jurisdiction Act, and that therefore, the Court bad no jurisdiction to set it aside. He referred to two unreported decisions in the cases of Somappa v. Nagalingappa (1) and Madivalappa v. Bhimappa (2) and it cannot be denied that the decisions in those appeals afforded some ground for the learned appellate Judge's decision. In both those cases there had been a decision of the Revenue Authorities that a particular disputed alienation was not null and void. In both those cases it was held by the High Court that the Civil Courts had no jurisdiction thereafter to consider whether or not the alienation was null and void.
4. A similar decision was recently given by Heaton, A.C.J and Crump, J. in Govindrao v. Hanmappa (3). There are, however, kindred decisions of this Court which, though not directly conclusive on the exact point before us, nevertheless tend to throw considerable doubts on the correctness of those decisions. It is admitted by Mr. Rao for the appellant that if the Collector had declared that this mortgage was null and void as against the petitioner, now the plaintiff, this Court had no jurisdiction to consider whether the Collector's decision was wrong. But it was argued that the fact that the Collector refused to declare the alienation null and void did not amount to an order with which this Court could not interfere, but that it was still open to the parties to get the question decided in a civil Court. I think, therefore, it is necessary that this question should be referred to a Full Bench.
The question would be:—Whether, after the Collector, on an application by a Vatandar so declare that a particular alienation is null and void, has refused to make an order that the alienation is null and void, the party aggrieved can file a suit in a civil Court against the alienee in respect of that alienation?
Shah, J.:— I concur in the proposed reference. I desire to add that it is not without significance that in a case where the Revenue Authorities had dealt with the question whether a particular alienation was null and void, and had ultimately decided not to declare it to be null and void the suit was entertained by civil Courts up to the Privy Council, and apparently no question as to the bar of jurisdiction under section 4, clause (a) of the Bombay Revenue Jurisdiction Act was raised. See Padapa v. Swamirao (4). Farther it seems to me that it is necessary to consider in connection with the question referred to the Full Bench whether on a strict construction of section 4 of the Bombay Revenue Jurisdiction Act, a suit between private parties to recover possession of the Vatan property on the footing that the alienation has come to an end on the death of the original alienor can be treated as a suit to set aside or avoid an order under Bombay Act III of 1874 within the meaning of that section.
OPINION.
Macleod, C.J:— The facts of the case are set out in the referring judgments from which it appears that the plaintiff claiming to be the Vatandar for the time being, asked for possession from the defendant who was a mortgagee from the previous Vatandar, on the ground that the alienation could not hold good beyond the life of the mortgagor. The Collector was of opinion that the alienation was good as against the applicant, and therefore, dismissed the application. The question referred to us is, whether, after the Collector, on an application by a vatandar to declare that a particular alienation is null and void, has refused to make an order that the alienation is null and void, the party aggrieved can file a suit in a civil Court against the alienee in respect of that alienation. It was decided by a Bench of this Court in Somappa v. Naglingappa , that an order or decision by the Revenue Authorities that an alienation which had been challenged was not null and void, was an order under section 11 of the vatan act and therefore, a suit to set it aside would not lie under section 4, clause (a), of the Bombay Revenue Jurisdiction Act.
5. Again, in Madivalappa v. Bhamappa, there was in the first place an order by the Assistant Collector that a certain alienation of Vatan land which had been challenged was null and void. That order was reversed by the higher Revenue Authorities, the result being, therefore, that there was ??? decision that the alienation was good. The learned Judges there held that a suit filed ??? the purpose of challenging the alienation was a suit to set aside or avoid an order ??? which had been made under section 11 ??? the Vatan Act, and the jurisdiction of ??? civil Court was excluded.
6. Then in Madhavrao v. Venkatesh, ??? which was an application for review ??? the decision of the Court on the ??? that an order of a Revenue Officer and section 9 of the vatan act had been ??? looked, and that the suit was in ??? to set aside such order, it was held by ??? Court that at the time the suit was ??? there was no order by a Revenue Officer under section 9 of the vatan act, for ??? order which had been passed by ??? Collector had been set aside by ??? Commissioner, and there was no order to I effect that the alienation was good.
7. Now sections 9, 10 and 11 of the vatan act have been framed for the purpose protecting Vatan property against ??? alienations. Under section 9 ??? made before the Act came into ??? and without the consent of the Collector ??? might be declared by the Collector to null and void, but the Collector ??? discretion to uphold an alienation, ??? on the ground that there might be ??? where the alienees had been in ??? so long that it would be inequitable disturb them. Section 10 deals with ??? of Vatan property after the Act ??? into force, and also with alienations to persons who were non Vatandars of the same Vatan. Then by section 11 when any alienation of the nature described in section 10 of the Act shall bake place otherwise than by virtue of, or in execution of, a decree or order of any British Court, She Collector shall, after recording his reasons in writing, declare such alienation to be null and void.
8. The Collector, therefore, on the plaintiff's application in this case, had the power to declare that the alienation consisting of the mortgage in suit, was null and void as against the plaintiff, and it has been conceded for the present appellant that if such an order had been made, it would have been beyond the jurisdiction of this Court to entertain a suit filed for the purpose of getting it aside, although it may be noted that in Bhimangouin v. Secretary of State (6), it was decided by a Bench of this Court consisting of Scott, C.J and Batchelor, J. on the 10th of April 1912, that an order made by the Collector that a particular alienation was null and void, when as a matter of fact on the appreciation of the evidence and the law on the subject the alienation was good, would not be an order that could be made under the Vatan Act, and therefore, a suit to set it aside would ??? be a suit falling within section 4, clause (a) of the Bombay Ravenue Jurisdiction Act. But conceding that ??? the Collector had made an order ??? this case that the alienation was bad, ??? his Court would not have interfered ??? it, the question arises, whether, as the collector refused to make any such order ??? rejected the application of the plaintiff ??? get possession of the land on the ground ??? the mortgage was no longer binding ??? him, there is an order which has to be ??? aside before the plaintiff can get relief, ??? that therefore, the jurisdiction of the Civil Court is ousted. We think that section 4 of the Bombay Revenue Jurisdiction Act which ousts the jurisdiction ??? the Civil Court in particular cases, should be very strictly construed, and that ??? the Collector on an application for declaration that an alienation is null and refuses to make a declaration to that ??? there is no such order against the ??? which prevents his going to a ??? Court for the determination of the question whether or not the alienation is binding on him, and that therefore, it is still open to him to ask the Courts to decide that question, and that the Courts would have jurisdiction to decide it. We think, therefore, that the question referred to us should answered in the affirmative.
Shah, J.:— I agree.
Hayward, J.:— I concur. The Collector has been given certain powers under the legislation relating to hereditary offices in section 6, and for the present purposes section 10, read with section 11 of the Vatan Act, The Collector's powers were no doubt given mainly in order to secure that the duties of hereditary officers should be properly performed and it does not seem to me that it was any part of the scheme of the legislation to disentitle Vatandars from also enforcing their private rights in Civil Courts.
9. The Collector has power under section 6 to institute suits to protect a Vatan, but it is not stated, nor in my opinion implied, that this was to bar the right of suit by a Vatandar. Similarly, although the Collector has been given power under section 10, read with section 11, to declare an alienation of Vatan property null and void, it does not seem to me that it was intended that, if he should either not be called upon to make such a declaration, or should refuse to make it, the Vatandar should be deprived of his ordinary relief in a Civil Court. It seems to me that it was intentionally stated in section 11 that the Collector shall declare the alienation to be null and void and not that the Collector shall declare whether or no the alienation was null and void. If that is so, the refusal to declare the alienation to be null and void would not be an order under section 11 of the vatan act and further litigation would not be barred under section 4, clause (a) of the third paragraph of the Bombay Revenue Jurisdiction Act X of 1876.
10. I have thought it desirable to state my view upon the subject because I was a party to the decision following the ruling in Somappa v. Nagalingappa, that is to say, to the decision in Madivalappa v. Bhimappa , and also a party to the contrary decision in Madhavrao v. Venkatesh (5). It seems to me, after having heard the matter fully re-argued, that the later decision was the right one and ought to be affirmed by the Full Bench.
11. Reference answered in the affirmative.
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