Budh Singh Maya Singh vs Mst. Jiwi

Kapur, J.—This is an appeal against a judgment of Falshaw J. dated 8-10-1948 affirming the judgment and decree of the Senior Subordinate Judge who had confirmed the decree of the trial Court decreeing the plaintiff''s suit.

Budh Singh had mortgaged his land in dispute to Fauja Singh for Rs. 800/- and the interest on this mortgage amount was Rs. 1-4-0 per cent, per mensem. Budh Singh also owed Rs. 160/- to Karnail Singh to whom also the land in dispute was mortgaged. On 13-7-1943 Budh Singh sold the land in dispute to Mst. Jiwi, mother of Pauja Singh, for a sum of Rs. 1,500/-. The consideration was as follows:

Due to Fauja Singh, previous mortgagee Rs. 962/-.

Due to Karnail Singh Rs. 160/.

For the deed of sale and other registration expenses Rs. 50/-.

To be received at the time of registration Rs. 328/-.

Rs. 328/- were paid before the Registrar.

Mutation of this sale was rejected by the Assistant Collector on 18-5-1944 on the ground that the alienee was a creditor within the meaning of S. 3-A of the Land Alienation Act and the transaction was a contravention of that section. Before the Assistant Collector Pauja Singh and Khemi, mother of Budh Singh, both agreed that the mutation be rejected. An appeal was taken to the Collector but on 28-8-1944 it was dismissed on the ground that both parties had agreed to the rejection of the mutation.

Mst. Jiwi brought a suit for possession on 25-2-1945 and the defence was that the transaction was in contravention of S. 3-A, Punjab Land Alienation Act, hereinafter termed the Act, that the civil Court had no jurisdiction because the Revenue Officer had already decided the matter and that the matter was exclusively within she jurisdiction of the Deputy Commissioner under S. 21 of the Act. A third point was also taken that the sale was without consideration but this matter does not seem to have been put in issue. The trial Court and the Senior Subordinate Judge both held that the transaction was not in contravention of S. 3-A of the Act and this matter was upheld by Falshaw J. who held that B. 3-A did not apply because Fauja Singh was not a creditor within the meaning of this section but he did not decide the other question which was raised that the Revenue Officer when he was acting at the time of mutation was a Deputy Commissioner within the meaning of S. 2(3) of the Act.

Mr. Bahri has taken two points before us and both of them seem to be highly ingenious but without substance. The first argument is that the civil Court has no jurisdiction to decide this matter because under S. 3-A the determination of the question whether the alienation has been made by the debtor to a person other than the creditor so as to pass a beneficial interest to the creditor is for the Deputy Commissioner to decide. The second point which he has taken is that if it is held that the order of 28-8-1944 is not a decision of the Deputy Commissioner this Court should not decide the matter and should leave it to the Deputy Commissioner to adjudicate upon the point. I will take both these points separately.

Section 3-A of the Act provides as follows:

3-A. Except with the sanction of the Deputy Commissioner as provided for in this Act no member of an agricultural tribe shall make an alienation of his land to a member of the same tribe or of a tribe in the same group who being a creditor has advanced to such person any loan, until such loan has been repaid or settled in full by the debtor and a period of three years has elapsed since repayment or settlement; provided that if the Deputy Commissioner alter making such enquiries from the parties concerned as may be prescribed in this behalf by the Provincial Government, rinds that an alienation has been made by a debtor to a person other than his creditor the effect of which is to pass the beneficial interest to such creditor in evasion of the provisions of this section, he shall, after recording his reasons by order in writing, declare the alienation void and shall eject any person in occupation of the land by virtue of such alienation and shall place the alienor in possession thereof.

Explanation (2): The term ''creditor'' means a person or a firm carrying on the business of advancing loans and shall include the legal representative and the successor-in-interest whether by inheritance, assignment, or otherwise, of such person or firm.

Three things seem to be necessary to give to the Deputy Commissioner the jurisdiction. There should be,

(1) a debtor,

(2) a creditor, and

(3) that the effect of the transaction should be to pass the beneficial interest to such, creditor.

It has been held by all the Courts that Fauja Singh was not a creditor within the meaning of Explanation 2 of S. 3-A of the Act and nothing has been said by Mr. Bahri which will convince us that the finding of the three Courts is wrong on this point and there is nothing to show that any beneficial interest has passed to Fauja Singh. Lord Esher M.R., in - ''Reg. v. income tax. Commissioners'', (1883) 21 Q3D 313 (A), has pointed out the distinction in the two cases when a Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit of its jurisdiction depends and when it cannot. He has also pointed out that the formula which is enunciated in regard to jurisdiction of courts of limited jurisdiction is quite plain but its application is often misleading.

The learned Master of the Rolls has observed as follows on this point:

When an inferior court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give the tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be question, and it will be held that they have acted without jurisdiction.

These observations of the Master of the Rolls have been quoted with approval by Mahajan J. in - ''Ebrahim Aboobakar v. The Custodian General of Evacuee Property'', AIR SC 2 SC 313 (B). In the Lahore High Court this question was decided by a Full Bench in - ''Lachhman Singh v. Natha Singh'', AIR 1941 Lah 401 (C), where the question to be decided was the jurisdiction of the Debt Conciliation Board and it was held that when it assumed jurisdiction in regard to usufructuary mortgages which were not debts within the meaning of the word as used in S. 7, Punjab Relief of Indebtedness Act it act-ad without; any jurisdiction. A similar rule was laid down by another Full Bench in - AIR 1941 234 (Lahore) In this case before the Deputy Commissioner can give a decision it has to be determined whether the three conditions which I have mentioned above have been fulfilled and if they are not fulfilled in my opinion the jurisdiction of the Deputy-Commissioner does net arise, and in any case it; is for the Courts of general jurisdiction to decide; as to whether the conditions for giving jurisdiction to the Deputy Commissioner have arisen'' or not.

In any case this Court has jurisdiction, under Art. 226 of the Constitution to quash orders passed by judicial or quasi-judicial bodies which are contrary to law and even if the Deputy Commissioner were to decide, as counsel for the appellant admits he should, the matter would be subject to the jurisdiction of this Court and no amount of tailing away the jurisdiction of civil Courts can deprive this Court of its jurisdiction under the Constitution which was framed by the Constituent Assembly representing the people of this country.

The next point taken by Mr. Bahri is that even if it be held that the matter has not so far been decided by the Deputy Commissioner & that the Collector acting on appeal was not a Deputy Commissioner within the meaning of the Act the matter should be left to him. The Act has now been repealed by Presidential order. There is nor Deputy Commissioner within the Act at the present moment and therefore there is no officer who can decide within the provisions of the Act and therefore this argument is wholly without force.

In my opinion the learned single Judge has come to a right conclusion and I would therefore affirm the judgment and dismiss this appeal with costs of the Letters Patent Appeal.

Soni J.

I agree.