Ram Kishun Singh and Others vs Damodar Proshad and Others

Das, J.—The facts are abated in the order passed by the Court below and it is unnecessary to recapitulate them. The learned Subordinate Judge has found that the applicants in Civil Revision No. 172 of 1923 being joint with their respective father and uncle, who were the judgment-debtors in the mortgage suit, cannot be said to have been in possession of the disputed lands or a portion thereof on their own account within the meaning of Order 21, Rule 101 of the Code and the learned Subordinate Judge relies upon the case of Cooverji Hirji v. Dewsay Bhoja (1893) 17 Bom. 718. The learned Subordinate Judge has also found that the applicant in'' Civil Revision No. 219 of 1923 is the Farjidar of Kali Prashad, another of the judgment-debtors in the mortgage action and that he cannot be said to be in possession of the disputed lands on his own account. In this view the learned Subordinate Judge has dismissed their applications under Order 21, Rule 100.

I will first consider the case of Ramkishun and Sital Prasad, the applicants in Civil Revision No. 172 of 1923. The case of Cooverji Hirji v. Dewsay Bhoja (1893) 17 Bom. 718 was considered by the Calcutta High Court in the case of Radha Gobindo Misra v. Raghu Nath Misra 18 C.W.N. 695. Their Lordships of the Calcutta High Court did not agree with the view of the Bombay High Court in so far as that Court laid down that a person who is in joint possession is not in possession on his own account. I entirely agree with the view which has been taken by the Calcutta High Court in the case to which I have referred. It must follow, therefore, that the applicants were in possession on their own account and were entitled to maintain an application under Order 21, Rule 100 of the Code.

The question raised in Civil Revision No. 219 of 1923 is whether the learned Subordinate Judge was entitled to consider the question of benami in an application under Order 21, Rule 100. It has been held in a series of cases that in a claim case arising under Order 21, Rule 58, the Court is not entitled to go into the question of benami. The finding of the learned Subordinate Judge in this case that the applicant was the benamidar of Kali Prosad is based on reasons which are entirely speculative. In my opinion the learned Subordinate Judge was not entitled to go into the question of benami in order to determine whether the applicant was in possession of the disputed property in his own right.

It was contended before us that the learned Subordinate Judge had complete jurisdiction to decide the cases in the way in which he has done and that we oughts not to interfere with his decision in revision u/s 115 of the Code of Civil Procedure. It has however been held by this Court that where the decision of the Court is the very basis and foundation of jurisdiction in its limited sense, as distinguished from powers, it at once comes within the purview of Section 115 of the Code. See Mt. Dhanwanti Kuer v. Sheo Shankar Lal (1919) 4 P.L.J. 340. The learned Subordinate Judge held by a misconstruction of the provisions of law that the petitioners were not entitled to maintain an application under Order 21, Rule 100 of the Code. The decision of the learned Subordinate Judge is the very basis and foundation of jurisdiction. In my opinion it is open to us u/s 115 of the Code to say that he declined a jurisdiction which was vested in him by law, by misconstruing the provisions of the Code.

I would accordingly set aside the orders passed by the Court below and allow the applications which were made by these petitioners to the Court below, There will be no order for costs.