AI Structured Summary
Not yet generated for this judgment
Judgment
Wort, J.—This rule is directed against the order of the Subordinate Judge made under a reference by the Land Registration Deputy Collector to the Civil Court and purporting to be made u/s 55 of the Act. The contention of Mr. De, with whom appears Mr. Banarji, on behalf of the objector in those proceedings and the petitioner before me in support of the rule, is that the order of the Land Registration Deputy Collector is entirely without jurisdiction. This point depends upon the construction of the sections of the Land Registration Act, more particularly Sections 52 to 55. The effect of those sections is that when an application is made for registration of a name under the Land Registration Act a notice, which is a general notice, is issued by the Collector, and on the day mentioned in that notice the Collector or his Deputy proceeds to consider the objections to the application. It is quite clear from the Act and perhaps even clearer from certain authorities particularly the decision in Umatul Mehdi v. Kulsum (1908) 35 Cal 120 that the officer deciding such matter has to investigate into the possession of either the applicant applying for his or her name to be registered or the objector. It is unnecessary to enter into various details which the Collector might have to consider, such as whether the applicant or the objector is in possession by reason of succession or otherwise, and it will suffice to state that the only question that the Court has to consider is the question of possession. The most important section for the purposes of this argument is Section 55 which contemplates a consideration of the question to which I have referred and also the possibility of the Land Registration Court being unable to come to any conclusion as to the matter in hand, viz., the question of possession. Having arrived at that stage the section proceeds to state:
The Collector shall determine summarily the right to possession of the same, and shall deliver possession accordingly, and shall make the necessary entry in the registers.
Now the words preceding the ones I have just read are:
and if it is not proved to the satisfaction of the Collector that any person is in possession of the interest in dispute.
Now it is the contention of the petitioner before me that in this case the condition precedent to a reference to the Civil Court does not exist. I should have stated before making that observation that the sub-paragraph of the fifty-fifth section part of which 1 have read, provides for the dispute to be sent to and determined by a civil Court in the event of the Collector finding that the matter is one which can be hotter determined by that Court. As I was stating, the contention is that the condition precedent for this reference to the civil Court does not exist. What happened was that the first Land Registration Court came to the conclusion that the applicant was in possession and made order accordingly. Then the Deputy Collector with appellate powers came, on appeal, to a somewhat different conclusion and was of opinion that the applicant was not in possession. I must say in advance that after reading the order of the Deputy Collector it is difficult to say that he expressly found that nobody was in possession, or to put it more accurately, that he was not satisfied that any person was in possession within the meaning of Section 55. But he does state specifically that he is not satisfied with the evidence of the applicant and he would have proceeded to determine summarily the question of the right to possession had it not been that he was of the opinion that that matter would be better determined by a civil Court, and accordingly he made the reference. Now, as I have stated, Mr. De and Mr. Banarji, appearing on behalf of the petitioner, have both contended that not having come to any specific finding that possession was not found either with the applicant or the objector, the order of the Land Registration Deputy Collector was without jurisdiction, and, if that order was without jurisdiction, the order of the Subordinate Judge was also without jurisdiction. Had 1 been forced to come to a conclusion on the matter, I certainly should have been inclined to hold that by reason of Section 62 of the Act I am powerless so far as this order of the Subordinate Judge is concerned. The words of the latter part of Section 62 seem to me to be exhaustive. Referring to the order of the civil Court the section says ''it shall be final not subject to any appeal or order for review. There may be a different view held in some High Courts, but I am content in this case leaving the matter there as in the circumstances it is quite unnecessary for me to determine that point.
There are two aspects- of the case one, that Mr. De has argued and the other is a purely legal aspect of the matter. The first aspect as I call it is this: that the Court referring the matter to the Subordinate Judge has come to no conclusion as to the possession of the objector. I is true that there is no express conclusion to that effect, but it is rather difficult for me to believe that the Land Registration Deputy Collector was so ignorant of his business that he failed to decide the only question which came before him, the question of possession of the applicant as-well as the objector I assume (as he is fallible) that he was quite unaware of or had forgotten the provisions of Section 55 of the Act, and that in order to give him jurisdiction he either had to come to a., conclusion or failed to come to a conclusion as to possession of either party. But Mr. Sushil Madhab Mullick appearing for the respondent, contends that taking all the facts and circumstances into consideration it could only be held that a conclusion was definitely come to (although not specifically stated) that the objector had not satisfied the Court that he was in possession. If I had to express an opinion (although I do not propose to decide the case on this point), I should feel inclined to hold first that the applicant was found to be in possession and secondly, although the objector could have questioned that order, he let it go and made no complaint as to its validity. But it seems to me that the case can and must be decided on an entirely different ground.
There is abundant authority and I think the Act itself is quite clear in favour of Mr. De''s argument that the Land Registration Deputy Collector must come to the conclusion as to the possession of one or the other party--the applicant or the objector. The authority of this Court is the decision in Ali Zamin v. Muhammad Akbar 1922 Pat. 315, where the question of the proper construction of the section was considered. There is also an authority of the Calcutta High Court on the same matter upon which Mr. De relies, viz., Umatul Mehdi v. Kulsum (1908) 35 Cal 120, which I have already cited. There is yet another case to which reference must be made--the case of Kapleshwar Jha. v. Raghunandan Prasad 1924 Pat 134, which is on a more limited point to which I shall in a moment refer. But I am assuming it for the moment that Mr. De''s argument is well founded, namely that in order to give the learned Land Registration Deputy Collector jurisdiction, he must come to some conclusion or fail to do so as to the possession of the applicant or the objector. In this connexion I refer to the recent decision of the Chief Justice of this Court in Janmejoy Pati v. Gopinath Bharthi 1933 Pat 41, which as regards the provisions of the Act is, in consonance with two Divisional Court cases to which I have referred. The decision does not mention them and unfortunately contains a mis-statement (whether as result of wrong reporting or not, I cannot say) as to the powers of a civil Court. The learned Chief Justice is reported to have stated:
It is very clear that neither the Deputy Collector nor the civil Court to which the question is referred u/s 55 has the right to enter into a question of title.
The only question which the civil Court has a right to enter into is the question of title; that is the only question referred to it. But although the judgment of the learned Chief Justice is the judgment of a Single Judge and a judgment which fails to notice certain cases, which I suppose is due to the, fact that they were not called to his attention, that judgment together with another point in my judgment dispose of this case. Now assuming everything in Mr. De''s favour, a very nice question arises. It cannot be contended for a moment that the learned Land Registration Deputy Collector had no jurisdiction to refer this matter to the civil Court. The Act expressly gives him that jurisdiction. He may have exercised it in an irregular manner, and, if Mr. De''s argument has to be acceded to, that is what has been done. His exercise of jurisdiction comes within his power but in the circumstances (to use the words of 3. 115, Civil P. C), the jurisdiction might have been exercised ''illegally or with material irregularity.'' But that in my, judgment would not affect the jurisdiction of the civil Court. If the learned Land Registration Deputy Collector had no jurisdiction to exercise the power, or in other words if the statute had given him no jurisdiction to refer a matter of this kind to a civil Court, then in that case the civil Court could have no jurisdiction at all. But it is impossible to say that the civil Court could not entertain a matter referred to it by the Land Registration Deputy Collector. However in regular or illegal the exercise of the Land Registration Deputy Collector''s jurisdiction may have been that in my judgment does not affect the jurisdiction of the civil; Court. The cases referred to, do not, I think, affect my decision on the matter. That would be in my judgment one reason why it would have to be held that in this case-; this Court has no jurisdiction to interfere.
But there is yet a further aspect of this case and I decide that part of the case on the assumption that the view that I have just expressed is erroneous and that the jurisdiction of the civil Court is affected by the irregular exercise of jurisdiction by the Land Registration Deputy Collector. I am assuming that the order of the Subordinate Judge is without jurisdiction but the authorities to which I have referred have established and indeed so far as this question is concerned, there are-numerous decisions of this Court which have not been noticed by the learned Chief Justice in the case reported in Janmejoy Pati v. Gopinath Bharthi 1933 Pat 41, that whatever Section 115, Civil, P.C. provides the practice of this Court is not to interfere where there is any other remedy open to the petitioner. It is referred to as being the practice of the Court for the reason I suppose that Section 115 provides that the jurisdiction shall: not be exercised where an appeal lies: in other words there may be cases where there is no appeal within the meaning of Section 115 of the Code, but there may be some other remedy and it is the practice of this Court in those circumstances not to exercise its revisional powers in favour of the petitioner. Now there is and was another remedy in this case. Section 59 gives a right to the losing party to bring a regular suit and it comes to this: that this is nothing more than a dispute between the two parties as to who should bring that suit; that is all that it amounts to. If I exercise my discretion in favour of the objector, the petitioner would be forced to bring the suit, and if I decide this case in favour of the petitioner, the objector would be forced to bring the suit. I do not think that this Court should exercise its jurisdiction in order to decide this question between the two parties who are litigating.
But there is yet another aspect of the case which has some bearing on the original question, namely, whether the Land Registration Deputy Collector decided the question of possession of the objector. The fact that the Deputy Collector''s order was made to which objection was taken, although of course there was no action, and the fact that the finding in appeal that the applicant''s possession had not been established and also, according to Mr. De, no conclusion was come to as to the objector''s possession entitled the objector to appeal under Clause 3, Section 85, Land Registration Act, which provides that an appeal lies to the Commissioner of the Division ''against every order passed in appeal which modifies or reverses the order appealed against.'' If it had been an order of reversal and the objector had objected to it, he could have applied to the Commissioner under the penultimate clause of Section 85. The order was against the objector in the sense that it was an order which did not find him in possession in which case his name would have been registered. The petitioner took no action, and in my judgment, it is impossible to come to the conclusion that this is a fit and proper case where, even if I hold the view that the order of the Land Registration Deputy Collector was without jurisdiction, I should exercise my jurisdiction under the revisional powers in favour of the petitioner. In all the facts and circumstances of the case, I think the Rule must be discharged with costs hearing fee five gold mohurs.