Sheobadan and Others vs Bihari Sah and Others

Meredith, J.—This is an appeal under the Letters Patent from the decision of Varma J., (as he then'' was) sitting singly. The appellants are defendants 1 to 4. The suit was decreed by the Munsif, and the decision has been upheld in the first appeal and by the learned Judge of this Court in second appeal.

The facts of the case may be very briefly stated. Plaintiffs 1 to 7 in the suit are the sixteen annas landlords of a village, Majhari. Defendants 1 to 4 were the old tenants of the holding, Kbata NOrder 41, having occupancy rights. In 1982, plaintiffs 1 to 7 purchased the holding in execution of a rent decree against the tenants and subsequently obtained delivery of possession. They then settled the land with plaintiff 8.

On 27th February 1989, defendant 1 filed a petition before the Eent Beduction Officer for restoration of the holding u/s 3, Bihar Act, 9 [ix] of 1938, (The Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act 1938). The application was by defendant 1 alone, and defendants 2 to 4 were never brought on record. Of the landlords, only plaintiff 1 was made a party. On 2nd March 1940, defendant 1 petitioned for making plaintiff 7 a party, and that was done then and there Plaintiffs 2 to 6 were never made parties at all. By an order dated 9th May 1940, the Revenue Officer ordered restoration of the land to the defendant and he got possession accordingly.

The suit was brought to have this order declared without jurisdiction, inasmuch as plaintiff 7 was not impleaded until after one year from the date when Section 3 of the Act came into force Section 3, Sub-section (2) of the Act-provides that the application shall contain inter alia, the name of the landlord of the holding by whom it was- purchased, and Sub-section (3) provides that no application under this section shall be entertained unless it is made within a period of one year from the date on which this section comes into force

The grounds on which the Courts below have held that the order of the Revenue Officer was without jurisdiction are that plaintiff 7 was not brought on the record until more than one year after the section came into force That would be 14th November 1939, whereas plaintiff 7 was not impleaded until 2nd March 1940; and the application must be deemed to have been made as against plaintiff 7 only at the time he was impleaded. This view, in my opinion, might be correct were it not for the provisions of Section 4 of the Act. Section 4 is in these terms:

(1) When the Collector entertains an application made by a raiyat u/s 3,the Collector may, if suoh application does not comply with the requirements of Sub-section (2) of the said section, allow the defect to be remedied then and there or within a time to be fixed by him.

(2) If the defect is not remedied then and there or where the Collector has fixed a time under Sub-section (1) within such time the Collector shall reject the application.

It is perfectly clear from this section that the Collector has jurisdiction to entertain an application defective in not complying with the requirements of Sub-section (2) of Section 3. It was only because the present application did not fully comply with these particular requirements that it wad defective It seems to me to follow that the Revenue Officer had full jurisdiction to entertain the application, which was made before him in time though it was defective Section 4 allows the Collector to permit the defect to be remedied then and there or by such time as he may fix. If the Collector can allow a defective application to be made good, it seems to me that he must have jurisdiction to entertain a defective application. We are not concerned with any question of limitation, but with the narrow question whether the, order made was without jurisdiction. What happened was that no one drew attention to the defect until 2nd March. The karpardaz of the landlords has previously appeared, and he did not point out any such defect. The Revenue Officer had directed the office to report if the application was defective It does not appear that this defect was pointed out until defendant 1 himself asked for plaintiff 7 to be impleaded, and the a the defect was remedied u/s 4. In my opinion, the Revenue Officer acted u/s 4, and, therefore, acted with jurisdiction.

Mr. Kameshwar Deyal for the respondents has also tried to support the decision on two other grounds. He points out that plaintiffs 2 to 6 were never brought into the proceedings at all. But the finding is that plaintiffs 1 to 6 were all members of a joint family and were represented by plaintiff 1.

Mr. Kameshwar Deyal further points out that defendants 2 to 4 were never brought into the proceedings. But there was a finding by the trial Court that defendants 1 to 4 were all members of a joint family and represented by defendant 1. No doubt this is the reason why these two points were not urged either in first appeal or second appeal.

AS it is clear that plaintiffs 2 to 6 and defendants 2 to 4, if: they were not directly in the proceedings, wore represented therein, it is unnecessary to consider the points of law urged by Mr. Kameshwar Deyal that an application u/s 3 must be made by all the tenants of the holding. In my opinion, this appeal must succeed, and I would accordingly allow it and dismiss the suit with costa throughout.

Manohar Lall J.

I agree, and wish to make a few observations. The only point upon which the respondents succeeded in the Court below was that the application by the tenant which was filed u/s 3 of the Act was defective and that the defect was not removed within the period of one year from the date upon which Section 8 came into force It was, therefore, argued, successfully in the Courts below that the order of the Collector directing the restoration of the lands to the appellant was ultra vires. Mr. Kameshwar Deyal has also supported the reasoning which commended itself to the Courts below.

In my opinion, upon a plain reading pf Sections 3 and 4 it is clear that this argument is without any substance Section 3, Sub-Clause (3) directs that no application u/s 3 shall be entertained unless it is made within the period of one yeas from the date on which this section comes into force In the present case, the application was filed within the requisite period on behalf of the raiyafc and in this he had impleaded certain persons whom he thought to be all the landlords of the holding. That application was admittedly defective in that it did not give the names of all the landlords including plaintiff 7 as contemplated by Sub-clause (2) to Section 3. But Section 4 clearly, directs that when the Collector entertains an application made by a raiyat u/s 8 and he finds therein any defect in that it fails to comply with the requirements of Sub-clause (2) to Section 3, he may either allow the defect to be removed then and there or within the time to be fixed by him.

In the present case, the Collector when the matter was pointed out to him allowed the defect to be removed within the time fixed by him, and the defect was so removed. It is argued that the Collector had no right to allow the defect to be removed after the period of one year referred to in Sub-clause (3) to Section 3. I do not agree with this argument at all, as Section 4 can only come into force when there is a defect, and the defect can be allowed to be removed within a time fixed at the discretion of the Collector. Mr. Kameshwar Deyal indeed suggested that the application should, not have been entertained at all because it was defective in limine But Section contemplates that the defects may be removed after the application is entertained. Indeed, the entertaining of the application has nothing to do with the defect in the application. An application if made by a raiyat and apparently in form and filed within the period of one year has to be entertained.

For these reasons I must over the first argument raised by Mr. Kameshwar Deyal. It is needless to observe that the jurisdiction of the Collector to decide and entertain an application and to allow the defects to be removed if acting within the statute cannot be questioned by the civil Courts The civil Courts are no doubt concerned to find out whether the Collector acted within his jurisdiction vested by the Act but here, all the Collector did was to act u/s 4. Sub-clause (1), and ha allowed the defects to be removed.

Mr. Kameshwar Deyal also tried to support the decision of the Court below upon the ground that plaintiffs 2 to 6 have not been made parties to the application by the raiyats When it was pointed out to him that the finding of the trial Court were to the effect that plaintiffs 2 to 6 were represented by plaintiff 1 as the karta he tried to argue that the doctrine of representation of the members of a joint Hindu family has not place in the Bihar Restoration Act. It. is enough to refer to three cases of the Privy Council where the question of the representation of the members of a joint Hindu family by the karta has been considered.

Lord Robson in delivering the judgment of the Board in Kishen prasad v. Har Narain Singh (11) 38 I.A. 45 examined a number of cases decided by the Indian High Courts where the decisions were not uniform and observed that those could only be supported on the ground that the plaintiff in those cases were shown or not shown to be karta of the family. He pointed put that it would be impossible to carry on the business of the joint Hindu family if the doctrine of co-ownership was to be applied. This is exactly what happened in the present case Plaintiffs 1 to 6 were the undivided members of a Mitakshara Hindu family and were represented by the kearta.

The next case is the case in Sheo Shankar Ram v. Mt. Jaddo Kunwar AIR 1914 P.C. 136 where their Lordships observed:

There seems to be no doubt upon the Indian decisions (from which their Lordships see no reason to dissent) that there are occasions including foreclosure Suits when the managers of a joint Hindu family so effectively represent nil other members of the family that the family as a whole is bound.

In AIR 1927 56 (Privy Council) , Lord Phillimore took the same view and made these observations at page 125:

In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he comes of age, and then bring an action, or bring an action by his guardian before; and in '' each of these cases,, therefore, the Court looks to Expln. 6 bf Section 11, Civil P.C., 1908, to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors. In this case there is no question of majors. It seems clear that the plaintiff in the previous suit was acting on behalf of himself and his minor children to try to exclude a collateral branch from a Bhare of the family property. If he had succeeded the judgment would have encured for the benefit of the children, and as he has Sailed they must take the consequences. Their Lordships had to comment upon and apply this Expln. 6 in the case of AIR 1925 272 (Privy Council) .

Applying these principles to the facts of this case, it is clear on the finding of the trial Court that plaintiff 1 effectively represented plaintiffs 2 to 6 in the proceedings before the Collector. Similarly, defendant 1 effectively represented defendants 2 to 4 before the same officer. I have no doubt that it was on account of this very clear and precise finding of the trial Court that this question was not agitated any more either before the Subordinate Judge or before the earned Single Judge of this Court. In any case, even if it is assumed that plaintiffs 2 to 6 and defendants 2 to 4 were not effectively represented by plaintiff 1 and defendant 1 respectively, I am of opinion that this will not affect the jurisdiction of the Collector to pass an order of restoration. The defect should have been pointed out before him that he should not deal with the application in the absence to plaintiffs 2 to 6 and-defendants 2 to 4. He had jurisdiction to order the restoration of an application which he entertained within the time fixed by the statute, and on which he passed an order after the defects had been removed.