Kaniz Fatima and Others vs Khushia and Others

J.N. Bhat, J.—This is a letters patent appeal against the order of a learned Single Judge of this Court (Ali, J.) dated 2-7-64 whereby be has

held that the suit is maintainable in a civil Court.

A preliminary objection has been taken by the learned Counsel for the Respondents that no applies as this appeal is preferred against an order

which can be called an interlocutory order and is not a judgment within the meaning of Clause 12 of the letters patent. In our opinion this

preliminary objection of the learned Counsel for the Respondents has no force. The term judgment as used in the letters patent of different . High

Courts has come up for interpretation in a series of cases. The Respondent's learned Counsel has referred to Tuljaram Row v. Alagappa Chattiar,

ILR 35 Mad 1 (FB) and Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, . In the Madras case Sir Arnold White J. has made the

following observations:

The test seems to me to be not what is the form of the adjudication, but what is its effect on the suit or proceeding in which it is made. If its effect,

whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far

as the court before which the suit of proceeding is pending is concerned, or if its effect if it is not complied with, is to put an end to the suit or

proceeding, I think the adjudication is a judgment within the meaning of the clause.

In the Supreme Court case, AIR 1953 S C 198 (Supra) their Lordships refused, to consider an order of transfer by the Supreme Court as a

judgment within the meaning of Clause 15 of the Letters Patent.

It is true that there has been some divergence of opinion on this point in the different High Courts, but the consensus of authorities is to the effect

that when an important matter in the suit has ;been decided by a single Judge of the High Court, an appeal will lie under the letters patent,

construing the matter thus decided as a judgment. Only a few authorities need be cited in support of this view.

In Har Prashad v. Naranjan Nath, AIR 1959 J&K 139, this High Court has held that an order holding the Defendant to be a non-agriculturist is

a judgment within the meaning of Clause 12 of the letters patent of this Court.

6 In Tar Mohd. v. Mt. Zulaikha Bai, AIR 1928 KANT 90 it was held that an order of the court decided that the court had jurisdiction to entertain

a suit was an order within the meaning of the Liters patent and hence appeal able.

In Shorab Merwanji Modi and Another Vs. Mansata Film Distributors and Another, it was held that an order refusing to stay a suit is a

judgment within the meaning of the letters patent. Their Lordships held that the word 'judgment' is not the language of the Indian legislature, but the

language of the English lawyers as it was in use amongst them before the words 'judgment' 'decree' and 'order came to be clearly differentiated

alter the passing of the Judicature Acts. It one wanted lo ascertain what the framers of the Letters Patent had really in mind when they used the

word 'judgment' one would perhaps have to make a search in the vocabulary of old English lawyers, as appearing, in contemporary rules and

judicial decisions. But such starch is no longer necessary because, by reason of judicial interpretation, the term, as used in the Letters Patent, has

now acquired an Indian meaning.

In this case their Lordships have cited two cases, Justices of Peace for Calcutta v. Oriental Cas Co. 8 Cal L R 433 and ILR 35 Mad 1 (FB)

and have also referred to the Supreme Court authority in Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, of the .;judgment their

Lordships have stated:

On a strict construction of the Calcutta test the right or liability must mean some right or liability which is a subject matter of controversy in the suit

or proceeding, but in its application to individual cases, that strict construction has not been adhered to and was indeed often departed from by

Couch C. J. himself who was the author of the test. Orders concerning the jurisdiction of the Court to entertain a suit, as distinguished from matters

of the actual dispute between the parties, were held by him to come within the category of judgments.

In view of the somewhat indeterminate terms in which the tests laid down in the two leading High Court decisions were framed, the task of

deciding whether a particular order is or is not judgment is not easy. But it appears to me that at least where a question of the jurisdiction of the

Court to entertain or proceed with a suit or proceeding is involved and a decision on that decision is given, such decision affects the merits of the

controversy between the parties.

Therefore their Lordships held that ""au order refusing to stay a suit involves assumption of jurisdiction and in so far as it negatives the

Defendant's contention that the [suit cannot by proceeded with and upholds the Plaintiff's claim that the suit must proceed, it seems to me that it

affects the merit? of, a part of the controversy being controversy in the suit as to where the subject matter should be tried.

In AIR 1949 1 (Federal Court) a judgment in Civil matters has been held to be a judicial decision given on the merits of the dispute brought

before the Court. The Federal Court judgment discusses case law on the subject.

In Firm Shaw Hari Dial and Sons v. Sohna Mai Beli Ram, AIR 1942 Lah 95 (FB) it has been held that the word judgment under the letters

patent is not synonymous with decree. Their Lordships have further held that an order determining the forum in which the suit is to be tried amounts

to a judgment within Clause 10 and is therefore appealable. It has further been held that the word judgment in Clause 10 is not the same as the

words 'final judgment.

In National Textiles Vs. Premraj Ganpatraj, it was laid down that if the judgment of the Court was challenged and it was contended that the

Court which granted the extension of time had no jurisdiction to grant it, being functus officio at the time, while the other side contended that it had

such jurisdiction, an order deciding in favour of jurisdiction decided, a question touching the merits of the' controversy between the parties and was

appeal able;

In Union of India (UOI) Vs. Khetra Mohan Banerjee, a distinction has been drawn between what are stated to be cardinal issues and

supplementary issues, and it has been laid down that if the decision is upon a cardinal issue it is a judgment within tho meaning of Clause 15 of the

Letters Patent.

Then we have got a Full Bench authority of the Allahabad High Court in Standard Glass Beads Factory and Another Vs. Shri Dhar and

Others, which has referred to a large number of decisions on tho point what a judgment is. By a majority of the Court consisting of Mootham C. J.

and Ruehubar Dayal J.) (Srivastava J. dissenting) it was held that a judgment in Clause 10 of the Letters Patent' includes a final judgment, a

preliminary judgment and an interlocutory judgment, all of which expressions are used in the letters patent. It was further held that the term

judgment does not necessarily exclude an order. An order of a single judge of the High Court dismissing an appeal against an order granting a

temporary injunction is an order which finally determines the right of a party.

A Full Bench of the Andhra Pradesh High Court in Sattemma v. Vishnu Murthy, AIR 1984 AP 182 held that a decision refusing to review an

order is a judgment within the meaning of Clause 15.

Similarly in State of U.P. v. Vijay Anand, AIR 1963 S C 948 it has been held that a review application dismissed by a single Judge of the High

Court under the U.P. Agricultural Income Tax Act is a judgment within the meaning of Clause 10 of the Letters Patent. ' .

A bare look at the authorities cited above and other authorities cited therein would show that the term judgment under the letters patent has to

be construed rather liberally. No hard and fast rule can be laid down as to what can be considered to be a judgment and what a simple order. This

determination depends upon the circumstances of a particular case. But on a perusal of the case law on the subject it can safely be held that an

order which decides an important issue between the parties affecting the merits of a case should be considered a judgment. The issue of a

jurisdiction is very important because it determines the power of the Court to adjudicate upon the matters in controversy or otherwise debars the

Court from holding any inquiry into the matter pending before it. An order deciding that a Court has jurisdiction to try a case is a question of vital

importance in the case and affects the very root of the case. In our opinion such an order should easily be, categorized as a judgment within the

meaning of ""Clause 12 of the Letters Patent. We, therefore, overrule the preliminary objection raised by the learned Counsel for the Appellants

about the maintainability of the appeal.

We now come to the merits of the appeal. About merits we are afraid the appeal must fail, though on grounds slightly different from those

mentored by the learned single judge. To appreciate the points involved in this case a brief narration of the facts leading to this appeal is necessary.

The Plaintiffs brought a suit for a declaration that they are the owners of land measuring 3814 kanals and 12 marlas under different survey numbers

in village Chak Sohna Nopa Tehsil Kathua, and the will dated 1st Chet 1999 (B) is a forged and faked document and is void as against the

Plaintiffs. Consequently the Defendants have no right or title to the land in dispute and the Defendants should be restrained from interfering with the

possession of the Plaintiffs over this land. The Plaintiffs alleged that one Brig. Khuda Baksh who is Defendant 15 in the suit owned considerable

land in village Chak Sohnanopa,. 'On the promulgation of the Big Lahded Estates Abolition Act he selected the unit of 182 kanals of land and the

rest of this land was mutated into buy of the Plaintiffs by mutation Nos. 42 to 137 and 139 to 152 and 155 to 160, as the Plaintiffs were the tillers

of this land. By virtue of the provisions of this. Act fluey became the owners thereof. The Defendant No. 15 first himself tried to contest the

imitations. The Revenue Minister by his order dated 24,-4-59 had remanded the case for a local inquiry on tile spot. Later on Defendant 15 set up

the other Defendants who claimed one land on various grounds. Amongst other things they pleaded that one Sonaul-lah Knan father-in-law of

Defendant 15 had made a will on 1st Chet 1999 whereby half of this land was alleged to have been purchased by Khuda Baksh with his own

money and half of it with the money of his wife. There were some proceedings in the revenue courts. Ultimately the Financial Commr. by his order

dated 28-6-62 ordered the addition of the names of Defendants 1 to 14 along with Defendant 15 as owners of the land The Plaintiffs feeling

apprehensive about these revenue entries and further apprehending the disturbance of their possession, brought the suit as indicated above.

A preliminary objection was taken by the Defendants in their written statement that the suit was barred under the provisions of the Land

Revenue Act and the Big Landed Estates Abolition Act. The Civil Court had no jurisdiction to try the suit. A preliminary, issue was struck in the

case which runs as follows:

Is the suit not maintainable in a civil court as being hit by Section 32 of the Big Landed Estates Abolition Act and Section 139 of the Land Revenue

Act? OPD The parties produced certain documents in the trial court but did not produce oral evidence in support of the issues. The learned Judge

ultimately decided the matter on 2nd July 63 holding that he had jurisdiction to try this case. Against that order the present -appeal has been

preferred.

The details of the proceedings in the revenue courts are not given in the pleadings of the parties, but during arguments the learned Counsel have

elucidated the facts about which there seems to be no dispute. The case of the Defendant is that after the promulgation of the Big Landed Estates

Abolition Act, Defendant 15 Brig. Khuda Baksh out of an area of about 4000 kanals selected 140 kanals of land in Village Chak Sonanopa and

the remaining 42 kanals were selected by him from other villages in the State.

The rest of the land was mutated by means of 16 mutations in favour of the State and the Plaintiffs.

Against mutation No. 42 Brig. Khuda Baksh filed an appeal which was decided by the Financial Commr.

on 18-6-60 in his favour, remanding the whole case to the Tehsildar for further inquiry. 11 of the mutations were set aside in revision by the Fin.

Commr. on 22-11-58, who held that the ex-proprietor was entitled tohold this land. Later on an application which is admittedly-preferred u/s 27

of the Land Revenue Act was 'presented ""by Defendants 1 to 14 before the Tehsildar Kathua alleging that the 4000 kanals and Odd of land

standing in the name of Brig. Khuda Baksh was not his exclusive .property but the. defended of land Baksh was not exclusive property but the

Defendant's 1 to 14 were equally entitled to necessary entries in (the Record. of Rights maybe made. The matter went up to the Fine. Commr, and

the then Fine. Commr. Syed ,. Nazir Ahmad; accepted the contention of 'Defendants- 1 to 14 and ordered the entry of their,'names in the revenue

records along with the name of Brig. Khuda Baksh. The Revenue Minister-by, his order dated"" 15-7-63 dismissed a revision petition, against this

order holding that he had no power to interfere with the: order passed by the financial Commr. because wide the Land Revenue Act the, Revenue

Minister had no power whatsoever, and the authority was the Finan, Commr. Later on it was represented to the successor of S. Nazir Ahmad

Shah, Agha Nasir, that other mutations effected in favour of the plaintiffs. Need, he cancelled, By his order dated 5-9-83 the Agha held that the

import 'of the order dated 26r6-82. passed by his predecessor. S. Nizir Ahmad Shah was clearly the correction of the remainipgfen tries in the.

The argument of the learned Counsel for the Appellants is that the orders"" passed by The Fine Commr. correcting the revenue records are

final' and cannot be challenged by means of a suit in the jived court. The argument is twofold: (1) that the jurisdiction of the civil court is ousted

under .the provisions of Section 32 of the Big Landed Estates Abolition Act, and (2) the civil court has no jurisdiction to entertain. the suit under

the provisions of Section 139(b) (vi)of the Land Revenue Act. The matter does not require any elaborate discussion. Section 32 of the Big Landed

Estates- Abolition Act reads thus:

No suit or other proceeding shall lie in any civil or revenue court in respect of any order or concerning any matter which is the subject of any

proceedings- taken under the Act."". . ' What the Plaintiffs here challenge is the correction of the entries 'made in the revenue records. It is

conceded by the learned Counsel for the Appellants that the corrections were not made under any of the provisions of the Big Landed Estates

Abolition Act An application for the correction of any such record under the Big Landed Estates Abolition Act could be made u/s 19 of the Act.

Such applications had to be made within three months from the date of the commencement of the Act. The Defendants' have not put in their

application u/s 19 of the Act. In the first place they moved into the matter in the years 1962 which is after about 10 years of the enforcement of the

Act. Secondly they nowhere took resort to this section but all through pursued their remedy u/s 27 of the Land Revenue Act Therefore no order

concerning any matter which was the subject matter of any proceedings under the . Big Landed Estates Abolition Act has been called into question

in this suit. The learned Counsel for the Appellants had therefore to concede that this section of the Big Landed Estates Abolition Act did not stand

in the way of the suit of the Plaintiffs. His whole emphasis was on Section 139 (2)(vi) of the Land Revenue Act. This Section reads as under:

No civil court shall have jurisdiction in ..; (vi) the correction of any entry in a record of rights, annual record or register of mutations.

The learned Counsel for the Appellants therefore argued that as the suit of the Plaintiffs in case of their success will result in the correction of

the entries in the record of rights and register of mutations pertaining to this land, the suit is, not therefore maintainable. This correction as already

stated, has been made u/s 27 of the Land Revenue which reads as under:

Entries in records of rights or in annual records except entries made in annual records by Patwaris with respect to undisputed acquisitions of

interests referred to in that section, shall not be varied in subsequent records otherwise than by:

(a) Making entries in accordance with facts proved or admitted to have occurred. Provided that no such change in record of rights shall be

effected without the order of the Government or any officer authorized by the Government in that behalf.

(b) making such entries as are agreed to by all the parties interested therein or arc supported by a decree or order binding on these parties;

Even a cursory glance ;at this section would show that Section 139(2)(vi) can be no bar to the Plaintiff's Suit The variation in the entries can be

made only (a) in accordance with facts, proved or admitted to have occurred and (b)any variations are agreed to by fill the parties interested

therein or are supported by a decree or order binding on the parties. In both the cases if the facts are proved otherwise than are mentioned in the

revenue records such variations can be made in the revenue records and all the parties interested must be agreeable to the variation. Thirdly if the

variations are supported by a decree the correction has to, be made.

In this case the whole suit of the Plaintiffs is to prove that the entries are wrong. Secondly all the partios interested have not agreed to the

variation. The Plaintiffs who are admittedly in possession of the land claim it as their own, the land having been vested in them u/s 5 of the Big

Landed Estates Abolition Act as the tillers thereof. The correction ordered by the Financial Commr. has admittedly been made without notice to

them, at their back and without their knowledge much less With their consent.

The learned Advocate for the Appellants tried to argue that the Plaintiffs were not parties interested in the matter and hence need not have

been noticed about the variations. This argument on the face of it is so puerile as not to deserve-any consideration. A person in possession who

calls himself the-owner of the property is one who can to said to be mostly interested in the variations that are sought to be made against his

interests and such an entry cannot be made without his consent under the provisions of this Act. The third contingency in which variation in the

records can be made is when the variations are supported by a decree or order binding on the parties. The Plaintiffs have brought this suit with the

solo purpose of getting a decree in their favour to the effect that they are owners of the land. If they succeed, in pursuance of the provisions of

Section 27 the variation has to be made automatically in the revenue records. All that Section 139(2)(vi) lays down is that a pure suit for the

correction of an entry in the records of rights does not lie in a civil court, but this section nowhere prohibits the institution of a suit the result of

which may be that the correction of the revenue records is an incidental matter which has to be made under the provisions of Section 27 by the

revenue authorities. The civil court-need not order the correction of the revenue records, it will be made ipso facto upon the decree of the civil

court and the revenue authorities are bound to give effect to that decision or decree of the civil court.

The suit of the Plaintiffs is for a declaration that they are owners of the land. Secondly that the will propounded by the Defendants is a forged

and faked document. Thirdly the Defendants should not interfere with the possession of the Plaintiffs over this land. All these are matters which can

be adjudicated upon only by a civil court, and no revenue court or revenue officer has jurisdiction, to entertain Such a claim. If, as already stated,

the result of a gives them the above relief a correction in the re-venue records has automatically to follow under the provisions of Section. 27 of the

Land. Revenue Act itself. Therefore there is no force in this contention of the learned Counsel for the Appellants.

A Civil Court is the proper forum for such suits. Under the provisions' of the; Administration of Evacuee's Property Act'. matters which can be

decided by the Custodian or the Custodian General under the provisions of that Act are excluded from the jurisdiction of civil-courts (Vide Section

3l of the Act). But even under that Act it has' been held by a Full,Bench of.the, Punjab; High Court in Mst. Jafran Begum Vs. Custodian Evacuee

Property, Punjab and Others, that:

When a question arises whether any property is. or is not evacuee property;' tlw6 matters have to be considered (1) whether a particular person

has or has-not become an evacuee; and (2) whether the property in dispute belongs to him. The first question, almost invariably, is a question of

fact and is to be determined finally, by the Custodian and the Civil courts-have nothing to do with it. The second question,, however, may involve a

simple question of fact ""or a complicated question of law or a question of title. Thus although the question, whether certain property is or is not

evacuee , property, is determinable-by the Custodian, the determination of a question of title by the Custodian, if such a question properly arises in

such a case, is not final and the question of title can be reopened in the civil courts and is to be-finally determined by those courts.

On the analogy of the above authority, when such questions as the title and the forgery of a will and other complicated matters arise in a case

like the present, the jurisdiction of a civil court cannot be ousted to determine such matters. In these circumstances we do not find any force in this

appeal which is rejected without any order as to costs.

J.N. Wazir, C.J.

I agree.