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Ananda Kishore Chowdhry v. Daije Thakurain
Structured Summary of the Provided Opinion
Factual and Procedural Background
The appellants (plaintiffs below) brought a suit for a declaratory decree that certain immovable properties had been privately partitioned and therefore could not be subjected to partition proceedings by the Collector under the Estates Partition Act. The Subordinate Judge dismissed the suit on preliminary grounds without trial, relying on four principal bases: (1) that the suit was not maintainable under Act V of 1897; (2) that it was barred by limitation under section 25 of that Act; (3) that Section 119 of the Estates Partition Act precluded questioning the Revenue Court's order; and (4) that the suit was barred under Section 42 of the Specific Relief Act because the defendants were in possession.
The plaintiffs appealed to this Court. The appellate court reviewed procedural history indicating partition proceedings before the Collector had been initiated as early as 1884, and that key Revenue orders (including one under Section 63 of Act VIII of 1876) pre-dated 1897. The Subordinate Judge's dismissal on preliminary points was challenged, and the appellate court ultimately allowed the appeal, set aside the lower court's judgment, and remitted the case for trial on the merits. The appellants were awarded costs in this Court and directed to have the court-fees paid on the memorandum of appeal returned under Section 13 of the Court Fees Act.
Legal Issues Presented
- Whether Act V of 1897 applied to the partition proceedings begun before 1897, or whether Act VIII of 1876 governed the proceedings (i.e., applicability of Section 2, Clause (b) of Act V of 1897).
- Whether the plaintiffs' suit is maintainable in the Civil Court to contest the Collector's partition when the Collector and the Board of Revenue had earlier determined that a private partition was not established (i.e., whether Revenue decisions on the reality of private partition are conclusive and exclude civil jurisdiction).
- Whether the suit was barred by limitation under the relevant provisions of the Estates Partition Act (the corresponding provisions in Act VIII of 1876, notably Section 26) or, alternatively, by Article 14 of the Limitation Act.
- Whether Section 119 of the Estates Partition Act barred the plaintiffs from questioning the Revenue order in the Civil Court.
- Whether Section 42 of the Specific Relief Act barred a declaratory suit because the defendants were said to be in possession—i.e., whether the purported possession (recorded in the Collector's order-sheet) was sufficient proof to defeat a declaratory action.
Arguments of the Parties
Appellants' (Plaintiffs') Arguments
- The Subordinate Judge erred in applying Act V of 1897 rather than Act VIII of 1876; the partition proceedings pre-dated 1897, and thus the earlier statute governs.
- The question whether there had been a private partition (and thus whether the Collector had jurisdiction) required trial on the merits and could not be disposed of on the preliminary grounds relied upon by the Subordinate Judge.
- The suit was not barred by limitation or by Article 14 of the Limitation Act because, if the Collector's order was made without jurisdiction, it was a nullity and need not be set aside under Article 14.
- The defendants' alleged possession was not established by the Collector's order-sheet entry and, in any event, any dispossession occurred after the suit was begun.
Respondents' (Defendants / Revenue) Arguments
- The Subordinate Judge correctly applied Act V of 1897 and the plaintiffs' suit was not maintainable under that Act.
- The suit was barred by limitation (relying on the corresponding section in Act V of 1897 / Section 25 as applied by the Subordinate Judge).
- The decision by the Revenue authorities (Collector and Board of Revenue) that the private partition was not established is conclusive between the parties and the Civil Court lacks jurisdiction to inquire into that question—reliance was placed on Section 148 (as cited in the record) of Act VIII of 1876 to support non-justiciability.
- The defendants were in possession, so a declaratory action by the plaintiffs was barred under Section 42 of the Specific Relief Act (the Subordinate Judge relied on an entry in the Collector's order-sheet indicating possession was delivered to the defendants).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Laloo Singh v. Purna Chander Banerjee (1896) I.L.R. 24 Calc. 149 | That an order made without jurisdiction is a nullity and Article 14 of the Limitation Act does not apply to such orders. | The Court relied on this authority (grouped with several others) to hold that if the Collector's order was without jurisdiction, Article 14 did not bar the plaintiffs' suit because a nullity need not be set aside under Article 14. |
| Raj Chandra Roy v. Fazijuddin Hossein (1904) X.L.R. 32 Calc. 716 | Same principle: orders made without jurisdiction are nullities and are not governed by Article 14. | Used alongside other decisions to support the conclusion that Article 14 does not apply to orders which are nullities for want of jurisdiction. |
| Narendra Lal Khan v. Jogi Hari (1905) I.L.R. 32 Calc. 1107 | Same principle regarding nullity of jurisdictional orders and non-application of Article 14. | Applied with the other cited cases to establish that lack of jurisdiction renders an order a nullity not subject to Article 14 limitation. |
| Alimuddin v. Ishan Chandra Dey (1906) I.L.R. 33 Calc. 693 | Again, supports the rule that orders made without jurisdiction are nullities. | The Court cited this as further support for the proposition that Article 14 does not apply to orders made without jurisdiction. |
| Parbati Nath Dutt v. Rajmohun Dutt (1901) I.L.R. 29 Calc. 367 | Held that Article 14 applied to a suit under Section 116 of Act VIII of 1876 where the Revenue authorities had jurisdiction and the plaintiff was party to the order. | The Court distinguished this case: there the Revenue authorities had jurisdiction and the plaintiff was party to the order; in the present case, if the Collector's order was without jurisdiction (because of a private partition), Article 14 would not apply. |
| Mir Tapurah Hossein v. Gopi Narayan (1907) 7 C.L.J. 251, 262 | Entry in the Collector's order-sheet is not, by itself, evidence that possession was delivered to a party; possession must be proved (e.g., by peon's return and examination). | The Court relied on this authority to hold that the Collector's order-sheet entry did not prove the defendants' possession for purposes of Section 42 of the Specific Relief Act. |
| Ram Ratan Sahu v. Mohant Sahu (1907) 6 C.L.J. 74 | Events occurring after the commencement of a suit cannot affect the suit in the manner claimed. | Applied to conclude that alleged possession obtained after commencement of the suit (Collector's order dated 29 Jan 1907 vs. suit commenced 9 Apr 1906) could not defeat the plaintiffs' declaratory action. |
| Waman Rao Damodar v. Rustomji Edalji (1890) I.L.R. 21 Bom. 701 | Supports the proposition that events occurring after institution of suit cannot be relied upon to defeat the suit. | Used together with Ram Ratan Sahu to support the conclusion that subsequent possession could not bar the plaintiffs' declaratory suit. |
| Jugdeo Singh v. Habibullah Khan (1907) 6 C.L.J. 612 | Permission to amend a plaint so that it is appropriate to a suit for possession is available in appropriate circumstances. | The Court noted that, if possession had been obtained during pendency, the plaintiffs could seek leave to amend their plaint to claim possession, citing this authority. |
| Raj Narain Das v. Shama Nando Das Chowdhry (1899) I.L.R. 26 Calc. 845 (subsequently set aside on review, I.L.R. 33 Calc. 1362) | The decision (as reported) was relied upon by respondents but was later set aside on review; it involved dispossession prior to the suit. | The Court observed that even if that reported decision stood, it was distinguishable because the dispossession there occurred before the suit; here any dispossession (if at all) happened after the suit began. The Court further noted the reported decision had been set aside on review. |
Court's Reasoning and Analysis
The Court proceeded by addressing each of the preliminary grounds relied on by the Subordinate Judge and applied statutory construction and existing authorities strictly by reference to the facts on record.
- Applicability of Act V of 1897 vs. Act VIII of 1876: The Court found it was a material error to apply Act V of 1897 because proceedings before the Collector had commenced as early as 1884 and the relevant Collector's order under Section 63 of Act VIII of 1876 was made before 1897. Relying on Section 2, Clause (b) of Act V of 1897 (as cited in the record), the Court held that subsequent proceedings must be carried on under Act VIII of 1876 as if Act V had not been passed. Consequently, the Subordinate Judge should have judged the maintainability of the suit with reference to Act VIII of 1876.
- Jurisdictional effect of a claimed private partition and the Civil Court's competence: The Court examined Section 12 of Act VIII of 1876, which bars Collector partition where a private division has been made unless there is a joint petition of all proprietors or the Civil Court orders partition. The Court described the Collector's statutory procedure under Sections 21, 23 and 31 (objections, allowance or overruling, and admission to partition). Although the Collector and the Board of Revenue had earlier decided that the private partition was not established (an order dated 29 April 1886), the Court rejected respondents' contention that such Revenue decisions are necessarily conclusive and beyond Civil Court review. The Court distinguished the types of orders excluded from Civil Court cognizance under Section 148 (as cited) / Section 149 (as discussed in the opinion) and concluded that the policy underlying those exclusions was to avoid Civil Court interference in matters concerning revenue division or partition details, not to bar the Civil Court from deciding jurisdictional questions going to the root (i.e., whether the Collector had jurisdiction in view of Section 12). Therefore, the Civil Court remained competent to decide the plaintiffs' challenge to the Collector's jurisdiction.
- Limitation and Article 14: The Subordinate Judge's reliance on limitation provisions of Act V of 1897 was incorrect for the reasons already given. Turning to the corresponding provisions of Act VIII of 1876, Section 24 and Section 26 were considered: those provisions concern an objector who raises a question of title or right and then institutes a Civil suit to have that title or right adjudicated; the successful litigant's decree is to be subject to the partition proceedings before the Collector. The Court concluded Section 26 did not bar the present suit because the statutory scheme contemplates a particular scenario (objector raising title/right and suit consequent upon that objection), which does not match the present case's circumstances. On Article 14 of the Limitation Act (one year for suits challenging government officer acts not otherwise provided for), the Court applied authorities holding that orders made without jurisdiction are nullities and therefore not governed by Article 14. The Court cited cases to support that principle and distinguished Parbati Nath Dutt on the ground that in that case the Revenue authorities had jurisdiction and the plaintiff had been party to the order, requiring setting aside before relief.
- Section 119 of the Estates Partition Act: The Court found the Subordinate Judge erred in relying upon Section 119 of the Act, holding that the provision had no application to the present case. The opinion does not elaborate extensive analysis on Section 119, but states plainly that this ground cannot be supported.
- Section 42 of the Specific Relief Act — possession: The Court examined whether the defendants' alleged possession barred the declaratory suit. It observed there was no evidence of possession on the record aside from an entry in the Collector's order-sheet that possession had been delivered to the defendants. Citing Mir Tapurah Hossein v. Gopi Narayan, the Court held such an entry is not proof of possession; possession must be proved (for example by the peon's return and evidence). Moreover, the Court noted the Collector's order recording delivery of possession was dated 29 January 1907, whereas the suit commenced on 9 April 1906, so any possession recorded post-commencement could not defeat the plaintiffs' declaratory action. The Court also noted that, if necessary, the plaintiffs could be permitted to amend the plaint to a suit for possession (citing Jugdeo Singh).
Holding and Implications
Final Holding: The appeal is allowed; the judgment and decree of the Subordinate Judge are set aside; the case is remitted to the Subordinate Judge to be tried on the merits.
Consequences and immediate implications:
- The appellants (plaintiffs) are entitled to their costs in this Court.
- The Court directed that the court-fees paid by the appellants on the memorandum of appeal to this Court be returned to them under Section 13 of the Court Fees Act.
- The Subordinate Judge must now proceed to try the suit on its merits rather than dispose of it on the preliminary grounds relied upon below.
Broader implication regarding precedent: The opinion applies and distinguishes existing authorities and statutory provisions to permit Civil Court inquiry into jurisdictional questions (e.g., whether the Collector could partition where a private partition is alleged). The opinion does not state that it sets a new precedent beyond the legal conclusions it applies to the facts; the direct legal effect is the remittal for trial and the administrative directions as noted above.
1. This is an appeal on behalf of the plaintiffs in a suit for declaration that the immovable properties, which form the subject-matter of litigation, had been privately partitioned and could not form the subject-matter of partition by the Collector under the Estates Partition Act. There has been no investigation into the facts of the case, but the Subordinate Judge has dismissed the suit on several preliminary grounds, namely, first, that the suit was not maintainable under the provisions of Act V of 1897; secondly, that it was barred by limitation under section 25 of that act; thirdly, that under Section 119 of the Act, the plaintiffs were precluded from questioning the validity of the order for partition made by the Revenue Court; and fourthly, that the suit was barred under Section 42 of the Specific Relief Act.
2. The plaintiffs have appealed to this Court, and on their behalf it has been contended that the view taken by the Subordinate Judge on each of the above points is erroneous and that the case ought to be tried on the merits. In our opinion, this contention is well-founded and must prevail
3. It is obvious as regards the first ground that the Subordinate Judge has committed a serious error in applying the provisions of Act V of 1897 to the circumstances of this case. It appears that proceedings were commenced before the Collector for partition of the estate so far back as 1884, and from the papers placed before us, it is fairly clear that the order under Section 63 of Act VIII of 1876, which was in force when the partition proceedings were commenced, must have been made before 1897 when the Act now in force came into operation. We hold, therefore, that under Section 2, Clause (b) of Act V of 1897, all subsequent proceedings for partition must be carried on under Act VIII of 1876, as if Act V of 1897 had not been passed. It follows consequently that the Subordinate Judge ought to have determined the question of the maintainability of the suit with reference to the provisions, not of Act V of 1897 but of Act VIII of 1876. Now, let us turn for a moment to the provisions of Act VIII of 1876 and see whether the present suit is barred. Section 12 of Act VIII of 1876 provides that no partition of an estate in which private division has already been made is to be made by the Collector except on a joint petition of all the proprietors or by an order of the Civil Court. In other words, in a case in which is established that an estate has been privately partitioned, the Collector has no jurisdiction to partition it again under the Estates Partition Act, except in one or other of two contingencies, namely, either upon the joint petition of all the proprietors or by the order of the Civil Court. Section 21 provides that, if, in the opinion of the Collector, the application for partition fulfils the requirements of Sections 18 and 19, that is, is in proper form and is accompanied by the necessary documents, and if in his judgment there does not appear to be any objection to the making of the partition, he may invite objections thereto--one of the objections may be under Section 12 of the Act, for any of the proprietors upon issue of notice under Section 21 may appear before the Collector and contend that he has no jurisdiction to make the partition in view of the provisions of section 12. If such objection is taken, it may be allowed by the Collector under Section 23 or it may be overruled by him under Section 31. In the latter contingency, the Collector directs that the application be admitted and declares the estate to be under partition. In the case before us, so far as we can gather from the materials on the record, an objection was taken that, in view of the provisions of section 12, the Collector had no jurisdiction to make the partition. The allegation that there had been a private partition was challenged, and it was determined by the Collector and ultimately by the Board of Revenue, that the private partition set up was not established, and that consequently there was no bar to the partition of the estate. This order appears to have been made so far back as the 29th April 1886. It is now contended by the respondent that the decision of the Revenue authorities upon the question of the reality of the alleged private partition is conclusive between the parties, and that the Civil Court has no jurisdiction to investigate whether or not it was competent to the Collector to make the partition in view of the provisions of section 12. In support of this view, reliance is placed upon the provisions of Section 148 of Act VIII of 1876. In our opinion the section mentioned is of no assistance to the respondent. That section provides that certain specified orders are not liable to be contested or set aside by a suit in the Civil Court. An order under Section 31 overruling an objection taken under Section 21 to the effect that the partition cannot proceed in view of the provisions of section 12 does not fall within the scope of Section 149. It is suggested by the learned vakil for the respondent that, as an order under the first clause of Section 32 cannot be challenged in a Civil Court, an order under Section 31 also must by implication be taken to fall within the scope of Section 149. There is obviously no foundation for this contention. On the other hand, the very circumstance that orders under Sections 11 and 32 are expressly excluded from the cognizance of the Civil Court, makes it fairly obvious that an order under -Section 32 of the description now before us was not intended to be excluded from challenge in a Civil Court. In our opinion the policy which underlies Section 149 is clearly against the contention of the respondent. The object obviously is to exclude the jurisdiction of the Civil Court in cases where the question relates to the division of the Government revenue or to the details of the partition. Where, however, the question raised goes to the very root of the matter and relates to the jurisdiction of the Collector to make a partition in spite of the provisions of section 12 of the Act, it is impossible to hold that the Civil Court is not competent to decide the matter in controversy between the parties. The view taken by the Subordinate Judge that the suit is not maintainable, cannot, therefore, be supported.
4. The second ground upon which the Subordinate Judge has dismissed the suit is that it is barred by limitation under Section 25 of the Estates Partition Act. Here also the Subordinate Judge has fallen into error in relying upon the provisions of Act V of 1897. The question, however, remains whether the suit is barred under the corresponding section of Act VIII of 1876. Section 26 of that Act provides that no suit instituted in a Civil Court by any person, claiming any right or title in the parent estate after the lapse of four months from the issue of an order of the Collector under Clauses (a) and (6) of Section 24 or after the lapse of four months from the issue of an order of the Collector under Section 31 declaring the estate to be under partition, shall avail to stay or affect the progress of any proceedings which shall have been taken under the Act for the partition of the estate; and all rights which may be conferred on any person by the final decree in such suit shall be subject to such proceedings in the manner hereinafter provided. This section has to be read with the provisions of section 24, and if the two sections are taken together, there cannot, in our opinion, be any doubt that Section 26 has no application to the circumstances of the present case. Section 24 prescribes the procedure to be followed when the objection raises any question of title or right. Section 26 then provides that if the objector institutes a suit to have his title or right established, and if he succeeds in the litigation, the decree of the Civil Court is to be subject to the result of the partition proceedings before the Collector; in other words, the successful litigant before the Civil Court takes the allotment which would otherwise have fallen to his opponent. It is clear, therefore, that the suit is not barred by the provisions of Section 26 of Act VIII of 1876, nor can it be suggested that the suit is barred under the provisions of Article 14 of the Limitation Act. That article no doubt provides that a suit to set aside any act or order of an officer of Government in his official capacity, not otherwise expressly provided for, must be commenced within a year from the date of the act or order. It has' been held, however, in the cases of Laloo Singh v. Purna Chander Banerjee (1896) I.L.R. 24 Calc. 149, Raj Chandra Roy v. Fazijuddin Hossein (1904) X.L.R. 32 Calc. 716 Narendra Lal Khan v. Jogi Hari (1905) I.L.R. 32 Calc. 1107 and Alimuddin v. Ishan Chandra Dey (1906) I, L.R. 33 Calc. 693 that an order made without jurisdiction is a nullity and need not be set aside; to an order of this description, Article 14 has no application. The case of Parbati Nath Dutt v. Rajmohun Dutt (1901) I.L.R. 29 Calc. 367 in which an apparently contrary view was taken is really distinguishable. In that case it was held that a suit by a party to an enquiry under Section 116 of Act VIII of 1876 (against whom there has been an adverse decision of the Revenue authorities), for a declaration that the land was part of his howla, was governed by Article 14. There, however, the Revenue authorities had jurisdiction to pass the order, and as the plaintiff was a party to the order, it may be suggested that he was bound to set it aside before he could ask for any relief. If the contention of the plaintiff in the case before us is well-founded, that is, if it is established that there was a private partition as alleged in the plaint, the order of the Collector was clearly without jurisdiction in view of the provisions of Section 12 of Act VIII of 1876; and it would be wholly unnecessary for the plaintiff to have such order set aside. The suit is, therefore, not barred under Article 14 of the Limitation Act.
5. The next ground upon which the Subordinate Judge has held that the suit is not maintainable is equally unfounded, for he has proceeded upon the provisions of Section 119 of the Estates Partition Act, which has no application. This ground, therefore, cannot be supported.
6. The fourth and last ground upon which the Subordinate Judge has dismissed the suit is that as the defendants are in possession, the plaintiff cannot maintain a declaratory action, and, therefore, in view of the provisions of Section 42 of the Specific Relief Act, the suit is bound to fail. It is pointed out, however, that upon the question of possession of the defendants, there is really no evidence on the record. The Subordinate Judge has relied apparently upon an entry in the order-sheet of the Collector to the effect that possession has been delivered to the defendants. In view, however, of the decision of this Court in Mir Tapurah Hossein v. Gopi Narayan (1907) 7 C.L.J. 251, 262 the entry in the order-sheet of the Collector is no evidence that the defendants are in possession. If the defendants allege that they are in possession the fact has to be proved. No,doubt they may produce the return of the peon who is alleged to have given them possession, and the peon may also be examined. But the ex parte entry in the order-sheet by itself is no proof of possession as against the plaintiff. Apart from this consideration, however, it is fairly clear that if the defendants are now in possession, they must have obtained possession during the pendency of this suit. It is worthy of note that the order of the Collector which recites that possession has been delivered was made on the 29th January 1907 while the suit had been commenced on the 9th April 1906. The suit, therefore, could not be affected by an event which happened during its pendency: Ram Ratan Sahu v. Mohant Sahu (1907) 6 C.L.J. 74 and Waman Rao Damodar v. Rustomji Edalji (1890) I.L.R. 21 Bom. 701. The plaintiff, however, would be entitled, under circumstances like these, to ask for leave to amend the plaint so as to make it appropriate to a suit for possession. This is clear from the decision of this Court in Jugdeo Singh v. Habibullah Khan (1907) 6 C.L.J. 612. Reliance was again placed by the respondents upon the decision of this Court in the case of Raj Narain Das v. Shama Nando Das Chowdhry (1899) I.L.R. 26 Calc. 845, which, however, has been subsequently set aside on review. See I.L.R. 33 Calc. 1362 But if that judgment were good law, the present case is clearly distinguishable, because there the dispossession had taken place before the suit was commenced; here the dispossession, if any, must have taken place after the commencement of the suit and the plaintiff cannot in any view be blamed for framing it as a declaratory action.
7. The result, therefore, is that this appeal must be allowed, the judgment and decree of the Subordinate Judge set aside, and the case remitted to him to be tried on the merits. The appellants are entitled to their costs in this Court.
8. As the suit was dismissed by the Court below on a preliminary ground, we direct that the Court fees paid by the appellants on the memorandum of appeal to this Court be returned to them under Section 13 of the Court Fees Act.
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