Nath Prasad v. Baij Nath

Stuart, C.J:— I substantially concur in the opinion which has been adopted by my colleagues in this reference.

The two questions submitted to us are (i) whether the jurisdiction for the case is the Civil or the Revenue Court, and (ii) whether, if the Civil Court has the jurisdiction, such civil jurisdiction is that of the Munsif or of the Small Cause Court. It appears that, while a dispute among those claiming as heirs to the property in suit in consequence of Kaula Kuari having died childless and a dispute as to the succession to the property having arisen among the family, an arrangement was made with the plaintiff, a stranger, that his name should be entered in the register of lambardars, and that lie should pay the revenue due from the property, and this he did from the 28th January, 1874, till the 6th February, 1878, that is, he paid the revenue leviable from the property for upwards of four years. The family dispute about the succession appears to have been brought to a termination, for on the 28th of the same month of February, 1878, the name of the defendant was entered as heir in the khewat and revenue register and that of the plaintiff expunged, and the defendant is now in possession. The plaintiff, who, as I have said, was stranger and held no share in the village, has therefore brought this suit for recovery of the money so advanced by him, filing it in the Court of the Munsif. The Judge considers that in adopting this course he was mistaken, that the Munsif had not jurisdiction to entertain the case, and that he should have proceeded in the Revenue Court. In support of this view the Judge refers to s. 93(g) of the Rent Act XVIII of 1873, but in this view of the law I cannot concur. The portion of s. 93 referred to applies only to “suits by lambardars for arrears of Government revenue, payable through them by the co-sharers whom they represent, and for village-expenses and other dues for which the co-sharers may be responsible to the lambardars.” In the present case, however, the plaintiff was in no such position. He was not a share-holder in any sense, but a stranger whose name had been entered in the register of lambardars for the mere purpose of meeting of Government revenue pending the dispute among the family to the succession to the property, and therefore s. 93(g) has no application to him, and lie cannot therefore be regarded an amenable to the jurisdiction of the Revenue Court. The plaintiff was therefore entitled to bring his suit in the Civil Court and the Civil Court having jurisdiction, exclusive jurisdiction, is the Small Cause Court, this being a claim clearly within the meaning of s. 69 of the Contract Act. But being a suit of that nature there is under s. 586 of the Procedure Code no second appeal to this Court, and therefore the decision of the Judge cannot be interfered with by any from of appeal. But as such a result must cause gross injustice, the money being due and the opinion of the Judge on the question of jurisdiction obviously wrong, the plaintiff would be well advised, when the case comes on again before the referring Bench, to apply to this Court under s. 622 of the Procedure Code and for such remedy as can thus be afforded.

Straight, J. (Pearson, J., and Oldfield, J., concurring):— The simple question for determination in this reference is whether the suit brought by the plaintiff-appellant was of the nature cognizable by a Court of Small Causes. If this be answered in the affirmative, then under the terms of s. 586 of Act X of 1877, no second appeal lies to this Court from the decision of the Zila Court. The following are the material facts: One Kaula Kuari had a five-anna four-pie share in the village of Madanpur. Upon her death disputes arose among her heirs, of whom the defendant-respondent was one, and thereupon the plaintiff, who was not a share-holder in the village, was on the 28th January, 1874, entered in the revenue records as lambardar of the share of the deceased and so continued until the 28 February, 1878, when the name of the respondent, as heir, was substituted. Between 1874 and 1878 the appellant had paid various sums for revenue due in respect of the five anna four-pie share of the village of Madanpur, and it was to recover these amounts from the respondent that the present suit was brought on the 5th February, 1879. The Munsif decreed the claim, but on appeal his decision was reversed by the Judge, who held that cl. (g) of s. 93 of Act XVIII of 1873 applied, and that the appellant should have gone to the Revenue and not to the Civil Court. It may be remarked that, although he disposed of the case on the question of jurisdiction, the officiating Judge seems to have entertained and dealt with the facts. In my opinion, he was wrong in holding that the suit fell within the description of the section of the Rent Act already adverted to. Between the appellant and the respondent the relations of lambardar and co-sharer in the proper sense of the term never existed. The former, a stranger of the village of Madanpur, was simply placed in vicarious charge to the share of the deceased, under what provision of the law is not very clear, until the right of inheritance should he determined, and though nominally he was designated lambardar, he cannot be said ever actually to have held towards the respondent the position contemplated by cl. (g), s. 93 of Act XVIII, of 1873. Moreover, at the time he brought the suit his name had been expunged from the revenue record, and his temporary connection with the five-anna four-pie share of Kaula Ivuari had terminated. It therefore appears to me that the officiating Judge was in error in holding the appellant's suit to be one for the Revenue Court.

But now comes the real and important question, was it of a nature cognizable by a Court of Small Causes, or in other words, does it fall within the terms of s. 6 of Act XI of 1865. No doubt there are many cases to be found in our reports in which it has been held that a suit for contribution cannot be brought in the Court of Small Causes, and a notable judgment by Sir Barnes Peacock in 1867 may be found in Rambux Chittangeo v. Madhoosoodun Paul Chaudhri , though it is right to add that there is also one of the Madras High Court in 1870, Govind Muneya Tiruyan v. Bapu (2), which is directly adverse. I think, however, that neither of those important decisions should have any bearing or influence one way or other on the determination of the question before the Court. They were both of them delivered before the passing of Act IX of 1872, when legislation had not stepped in with plain language to give distinct vitality and effect to certain relations between parties out of whose moral obligations one to another a legal fiction had grown up for implying a contract, and while, as learned expositions of law, they may be read with interest and advantage, for practical purposes to the point under consideration they are absolute and irrelevant. Chapter V of the Contract Act provides for “certain relations resembling those created by contract,” and ss. 69 and 70 seem specially framed to meet cases in which, while no contract can be said actually to exist (and to imply one would involve a resort to legal fiction), justice and equity require that a person, for whom an act has been done or money has been paid by another of which he enjoys the benefit, such other not intending to do the act or make the payment gratuitously, should reimburse or compensate the person doing such act or making such payment. Consequently these two sections create a statutable duty, or in other words, turn a natural into a legal obligation in the person for whom the act has been done or the payment has been made towards the person doing such act and making such payment, and the latter may call upon the former to fulfil such duty and obligation, and if he fail to discharge it, he will be responsible in damages for the breach. In the present case the plaintiff paid the revenue for the defendants lawfully, that is, for a lawful purpose; he did not intend to do so gratuitously, and the defendant has adopted and enjoyed the benefit of the payments. The position of the parties therefore, directly, falls within the terms of s. 70 of the Contract Act. The plaintiff's suit accordingly was in reality one for damages, the measure of which will be the amount he has actually ??? and as such was of the nature cognizable by a Small Cause Court, the amount sought to be recovered being under Rs. 500; s. 586 of the Civil Procedure Code consequently applies, and no second appeal can be had from the decision of the officiating Judge to this Court.