Janmejoy Pati and Another vs Gopinath Bharthi and Others

Courtney-Terrell, C.J.—This is an application for revision of an order by the Munsif of Bhadrak made on a reference by a Deputy Collector u/s 55, Bengal Land Registration Act. Before the Deputy Collector there were four claimants to registration. The previous registered proprietor had been one Mahanth Ghanshyam Bharthi. The petitioners before me are two persons Janmejoy Pati and Ghanshyam Pati who claim to be in possession of a portion of the property and to be in possession by virtue of a sale deed executed by Ghanshyam Bharthi who had since died. The other claimants were three persons who were claiming as trustees under a deed which had been executed by the deceased Bharthi who had purported to execute deed of trust in their favour of the lands in dispute by which he constituted them trustees of these lands for the support of a deity and it is said by them that the land in dispute is debottar property, that it was rightly the subject of a trust deed and that the alienation under which the petitioners claim was outside the Bharthi''s powers as the mahanth of the math and they say that the petitioners have no good title.

The third petitioner is an ijardar who claims registration as in possession of 13 annas of the property by virtue of an ijara executed by the deceased mahanth in his favour. The fourth claimant is a chela of the deceased mahanth and alleges that he is now the mahanth of the math, but his claimant and the alleged trustees are indifferent as to which of them is recognised as in possession of the property because each of them claims to hold merely on behalf of the deity.

The Deputy Collector before whom the applications were heard came to the conclusion that it was not necessary to outer into the question of the actual possession by the parties.

He said that there was a serious dispute between the parties the decision of which depended upon the question of whether or not the land was in fact debottar property and whether the deceased mahanth had a right to execute an alienation. Accordingly he referred the matter u/s 55 of the Act to the civil Court for decision. In my opinion he was wrong in so doing because his fundamental duty u/s 52 is first to decide the question of possession in fact and in the case of a person who claims possession by virtue of a succession or transfer to satisfy himself as to whether the transfer or the operation on which the succession purports to be founded did in fact take place. He has the right, if he is unable to decide upon these matters, to refer the matter to the civil Court u/s 55 but the power of the civil Court and the scope of the enquiry to be conducted by it are no wider than the scope of the enquiry originally before the Deputy Collector.

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 fundamental purpose of registration under the Act is to record merely the fact of possession and that this is clear is shown by the provisions of Section 62 of the Act which makes the decision of the Civil Court to which such a matter may be referred by the Deputy Collector final and not subject to appeal. If the contention of the opposite-party were sound it would be within the power of the Civil Court to decide a question of title without right of appeal.

When the matter was taken up before the Civil Court the learned Munsif proceeded to enquire as to whether the transferor who was undoubtedly the registered transferor and who undoubtedly executed what purported to be a transfer in favour of the petitioners had in law the right to effect such a transfer and to give a valid title to the transferee and for this purpose he entered into an investigation of the question whether in fact the land in dispute was debottar property or not. He came to the conclusion that the land was in fact debottar property and that the transferor had no legal right to effect the transfer. His finding on the question of possession is somewhat unsatisfactory. His powers under the Act are merely first of all to investigate the question as to whether the possession is founded upon the transfer alleged by the applicant, that is to say whether the transfer was in fact effected; and, secondly, to enquire whether the transferee was in fact in possession and with these two questions his jurisdiction comes to an end.

He however having been relieved of the necessity of deciding whether the transfer has in fact been effected dealt with the question of possession in very ambiguous terms. He first of all said that the petitioners had adduced evidence as to the collection of rents from the tenants and of the enjoyment of the nijchas lands and the payment of land revenue and he stated that he could see no reason to disbelieve the witnesses who purported to prove these facts. But he said that when they applied for registration the petitioners were not in possession and that the case had been pending for two years and that the transferee was in collusion with the ijaradars whom I have mentioned to create evidence of possession and then in a very short paragraph in which he deals with this part of the case he says that it can safely be assumed that neither side can be said to be in peaceful possession.

In my opinion he should have come more definitely to a finding one way or the other on the question of possession as a fact and he should have refrained from entering into a discussion of the legal rights of the transferor. Moreover going further back in the history of the case it was, in my opinion, not competent for the Deputy Collector to refer this case unless he first of all found that he could not decide the question of possession or he should have decided the question of possession in formal terms. This he failed to do. In these circumstances the reference to the Munsif was without jurisdiction and the treatment of the case by the Munsif was also without jurisdiction.

The proper course will be to refer the matter back to the Deputy Collector to come to a conclusion as to whether or not he can decide the question of possession. If he is of opinion that that question will more conveniently be dealt with in the civil Court he may refer it to the civil Court as he is en titled to do and it will be for the civil court to limit itself to the question firstly of the fact of possession, and secondly, as to whether the transfer relied upon was or was not executed by the person who then was on the register as the registered proprietor. It goes without saying that this latter question is one which either the Deputy Collector or the civil Court may legitimately decide. It may for instance be alleged by the objectors that the transfer relied upon is a forgery or had not in fact been executed or as in the case of Kapleshwar Jha v. Raghunandan Prasad AIR 1924 Pat 134, relied upon by the objectors, was a collusive transaction, that is to say not intended to operate as a transfer at all.

But the right of the transferor to effect the transfer is not a matter for the Court under the Act. I agree with the principles stated by the Calcutta High Court in the case of Umatul Mehdi v. Kulsum [1907] 35 Cal 120. The petition for revision succeeds and the objectors must pay the costs. Hearing fee two gold mohurs.