Prabhu vs Mahabirprasad

Khan, J.—All these petitions (Nos. 75, 76, 77, 78, 79, 80, 81, and 82 of 1956) filed under Article 227 of the Constitution of India raise a common point for decision, namely, what is the effect of an order passed u/s 328 of the Quanoon Mal of Riyasat Gwalior after the terminate of a case u/s 326 of the Quanoon Mal ? The petitioners themselves have applied that these petitions should be consolidated and this having been done, they are now disposed of by a single judgment.

The facts of all these cases are more or less the same. The difference is in the dates of the filing of the various suits and the dates on which various orders were passed in the proceedings. That, however, would not affect the determination of the question stated above, I shall state the facts of case No. 82 of 1956, and, the facts of other 7 cases are typical and they need not be stated,

The facts out of which this petition arises are that Prabhu s/o Lalaram Kirar, resident of Jaksoli village, Pargana Gird, filed a suit No. 249 of 1949 u/s 326 of the Qanoon Mal, Riyasat Gwalior of Samvat 1981, on the allegations that the plaintiff was in possession of the land in dispute as a tenant of the defendant (who was a Zamindar of the village), that on 15-10-49 the defendant did not allow him to cut his crops, and thus resumed possession of the land he had leased. The relief sought was that a decree for possession and damages be passed against the defendant. Along with the suit, the plaintiff also moved the court u/s 328 of the Qanoon Mal, and offered to give security for damages etc, in case he was unsuccessful and required the defendant to be bound over and not to interfere with his peaceful enjoyment of the land. The Court allowed the petition u/s 328 and passed the following order ex-parte on 31-10-49:�

From the order it appears that on the basis of the certificate of a Patwari, the Court prima-facie held plaintiff entitled to possession, and directed that on his furnishing security, be shall remain in possession and restrained the defendant from interfering with plaintiff''s possession. The regular suit u/s 326 of Qanoon Mal was, however, dismissed and it was held that the plaintiff was not the tenant of the defendant, but that the plaintiff was working with the defendant, on the plaintiff''s land on the basis of Adhbatia, which is a recognised way of doing cultivation on an understanding that the produce of the field shall be divided half and half. An appeal was filed against this but was disallowed. In short this decision became final. Thereafter, the defendant applied to the Tehsil court for the restitution of possession under sections 144 and 151 C.P.C. The Tehsildar allowed the petition and ordered the plaintiff to deliver possession back to the defendant, On appeal this decision was reversed by the Collector by his order dated 12-7-1955 and a second appeal to the Commissioner was also disallowed. In the last resort, the defendant filed a revision before the Revenue Board u/s 39 (2) of the Madhya Bharat Tenancy Act (Act No. 68 of 1950) and the Board allowed the revision and ordered restitution. It is against this order that the plaintiff has filed this petition under Article 227 of the Constitution of India, and it is urged by the learned counsel for the petitioners that the decision of the Board amounts to upsetting the finding of fact arrived at by the Collector and the Commissioner and that the Board has no jurisdiction to do so u/s 39 (2) of the Madhya Bharat Tenancy Act.

From the facts that I have stated above, the question involved is not that of disturbing the finding of fact by the Collector or the Commissioner, but the question is to determine the scope and extent of an order passed u/s 328 of the Qanoon Mal of Gwalior State. S. 328 runs as follows:�

From a perusal of it, it is clear that section 328 provides for a interim remedy in the course of proceedings initiated u/s 326. The object of this section was that contemporaneously with the filing of suit u/s 326 of the Quanoon Mal, the court may prima facie determine as to which of the two parties was entitled to possession during the pendency of the suit, and after such determination it should leave the possession in the hand of the person who is prima facie found entitled to it, provided that the person furnishes security to the effect that in the event of the final judgment going against him, he would pay costs, damages etc, to the other party, At the same time the court was required to direct the other party also to execute a bond not to interfere with such possession. In the circumstances in question for consideration is: what is to happen to these interim proceedings after termination of the suit u/s 326 of the Quanoon Mal. The answer would obviously depend upon the result of the suit. Keeping this case in view. If the plaintiff had succeeded, the interim proceedings would have become merged in the final order and nothing more was to be done. But if the suit was dismissed (as is the case here) it is again obvious that the prima facie determination u/s 328 of the Quanoon Mil would come to an end, and the parties shall have to be restored to the position of status quo. This would be so, even if there was no clear direction in the law, on the principle of natural justice. But happily section 330 of the Quanoon Mal gives a clear direction in such a case. Section 330 is as follows:�

On reading sections 326, 328 with section 330 of the Quanoon Mal, there is no manner of doubt that on the termination of the proceedings u/s 326, the possession will be restored to the person who has been deprived of it. In the Instant case, the suit of the plaintiff on the allegations that he was a tenant of the defendant and was thus in possession of the land was dismissed throughout by all the lower courts. The very allegation in the plaint that the defendant did not allow the plaintiff to cut the crop showed that the defendant was in possession of the field. And of any thing more is required to clarify the position, the relief sought by the plaintiff, namely, that he should be restored possession of the field, unmistakably shows that at the inception of the suit, he was out of possession. The Collector and the Commissioner did not at all apply their minds to this aspect of the question. In a perfunctory manner they have observed that as no actual possession was taken from the defendant and given over to the plaintiff, the defendant can not ask for the redelivery of the possession. But the delivery of possession of a field is not like the delivery of a movable article, which is actually seized from one man and given to another. The allegations in the plaint showed that the plaintiff was not in possession and that when the court asked him to furnish security it was on the prima facie decision of the fact that the plaintiff was entitled to possession because of the certificate of the Patwari. In the circumstances, the Collector, and the Commissioner manifestly erred in construing the meaning of section 328 and also in overlooking the provisions of section 330 of Quanoon Mal, which clearly requires that on determination of the proceedings (under section 326) possession shall be restored forthwith to the parson who was deprived of it.

According to section 39 (2) of the Madhya Bharat Tenancy Act (Act No. 68 of 1950) the Board can interfere in revision if it appears to the Board that the officer who has decided the case has exercised jurisdiction not vested in him by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of his jurisdiction illegally or with substantial irregularity. In the present case, the Collector and the Commissioner failed to exercise the jurisdiction vested in them, namely they failed to restore possession to the defendant. Or in the alternative in the exercise of their jurisdiction, they acted illegally, that is they acted in breach of the provisions of law (section 330 of the Qanoon Mal). Thus the Board''s interference was justified and we see no reason to interfere with its decision.

All the eight petitions (Nos. 75, 76, 77, 78, 79, 80, 81 and 82 of 1956) are in consequence dismissed with costs that is fixed at Rs. 100 as counsel''s fees.

Newaskar J.,

I agree that these petitions under Article 227 of the Constitution ought to be dismissed.

Only question for, consideration in these cases is whether the Board of Revenue in directing restitution in exercise of their powers of revision acted within the scope of their authority or not.

The proceedings which are material in this case were started when each of the petitioners filed a suit u/s 326 of the Kanoon Mal Gwalior claiming relief of possession and damages for undue interference. A petition was filed in each of these suits by the petitioner-tenant u/s 326 of the said Act for interim relief of injunction offering to give security for damages in case he was unsuccessful. This application for interim relief was allowed on a prima-facie finding that the plaintiff-applicant was in possession. Finally all these suits were dismissed and the decisions were confirmed in appeal. The defendant thereupon applied for restitution contending that he was deprived of his possession by reason of the interim order of the court which prohibited him from entering these fields and interfering with the possession of the plaintiff He succeeded in the court of Tehsildar but lost before the Collector and the Commissioner. He then applied in revision to the Revenue Board. They held that the findings that the petitioner, in each of these cases, was in possession, was merely tentative and was not final. The ultimate finding in the suits was that it was the Zamindar who was in possession and that there was no interference by him in the possession of the tenant. It was further found that it was the interim order of the court which prevented the opponent from exercising his right of possession and placed the plaintiff in possession. When ultimately it was found that the plaintiff was not in possession he was entitled to be saved from the wrong which resulted in consequence of erroneous (erroneous as found by the court) order of the court. They therefore restored the order of Tehsildar and directed restoration. Question for consideration is whether the Board acted within the scope of their authority u/s 39 of the Madhya Bharat Land Revenue and Tenancy Act. If they did this, court cannot interfere.

Contention raised is that they set aside concurrent decisions of the two courts below and thereby exceeded their power of revision which was similar in scope to section US Civil Procedure Code.

This contention is untenable for two reasons:�

Firstly�The Tehsildar had merely given effect to the ultimate decision in the case by directing restitution where the possession was in effect lost under an erroneous order of the court. The Collector and the Revenue Commissioner went behind the ultimate decision and thereby failed to act within the scope of their jurisdiction. The Board therefore rightly interfered with that decision and restored the order of the Tehsildar.

Secondly�It appears that the Tehsildar was authorised u/s 330 of Qanoon Mal, Gwalior, to restore possession of which a party was improperly deprived as would appear from its final decision. He exercised this power. The Collector and the Commissioner by their order interfered with this order. This was in direct violation of a specific provision of law. They instead of giving effect to it acted contrary to it. It was therefore necessary that effect should be given to this provision. The Board did what it ought to have done and did not act beyond the scope of their authority.

These petitions therefore which turn on this question ought to be dismissed.