Mt. Ajhola Kuar and Another vs Mt. Bal Kuar and Another

Sinha, J.—These two applications in revision arise out of the same orders passed by the learned Subordinate Judge of Gaya in a reference u/s 55, Land Registration Act.

It appears that one Padarath Singh died possessed of certain proprietary interest in a number of villages, leaving him surviving his widow, Musammat Sakal Kuar. It is also alleged that he was survived by two daughters, the two petitioners in the revisional applications before this Court. On his death, Musammat Sakal Kuar got herself registered as his heir and legal representative in the Collector''s D Register in respect of the proprietary interest in those villages. With her consent, Musammat Bal Kuar and Musammat Jararo Kuar, the two widowed daughters-in-law of the propositus, were also allowed to be entered along with the widow in the Collector''s registers. That mutation was made sometime in 1923, and the following orders of the Land Registration Deputy Collector passed on 23-1-1923, are rather significant:

The title of Mt. Sakal Kuar to succeed to her husband''s property is indisputable. The title of the two-widowed "daughters-in-law may very well be questioned. Mt. Sakal Kuar has no objection to the mutation of their names along with her; rather she wishes it, The Musammat is a limited owner, i.e. whatever she does in regard to the property of her late husband will have effect only till her life time. There seems to be no objection in allowing the mutation of their names along with her... OJ course, after the death of the widow, her actions will not be binding upon the reversioners.'' In these circumstances I allow the mutation of the applicant'' names and disallow the objections.

Things stood like that until Musammat Sakal Kuar died in February 1942. On her death, the two petitioners made several applications for the mutation of their names, each claiming to be recorded with respect to the entire sixteen annaa interest in the inheritance of their alleged father, Padarath Singh. These applications of the alleged daughters of Padarath Singh were opposed by the two daughters-in-law aforesaid, who already stood recorded along with Musammat Sakal Kuar. The Land Registration Deputy Collector allowed the petitioner''s applications for registration, holding that they were the daughters of the propositus, and that their evidence of possession, though meagre, might be in conjunction with their superior title, preferred to the evidence of possession given by the objectors, the daughters in-law. Those orders were set aside by the Collector who held that the daughters in-law were in possession, and, therefore, should be recorded in the Collector''s Register. The Collector''s orders were upheld on appeal to the Commissioner. The Board of Revenue was moved by the petitioners, and the Board, not being satisfied with the approach to the case by the subordinate Courts, passed the following orders:

It seems to the Board that, as both title and possession are the subject of vehement dispute, this is eminently one of those oases which should properly be determined by a civil Court. It is, therefore, ordered that the Collector should refer the matter in dispute, u/s 65, Land Registration Act, to the Principal Civil Court of the District.

On this reference, the parties, before the Civil Court appears to have agreed that the matter might be decided on the evidence already recorded by the Revenue Courts. Hence, the learned Subordinate Judge, Mr. Samad, before whom the matter was fought out, purported to determine the questions before him on the evidence already recorded by the Revenue Courts. The learned Subordinate Judge was inclined to think that the reference to the Civil Court u/s 65, Land Registration Act was incompetent, inasmuch as the Collector had decided the question of possession in favour of the objectors, the daughters-in-law. He also adopted the finding of the Revenue Courts that the petitioners were as a matter of fact, the daughters of the propositus Padarath.

He similarly adopted the findings on the question of possession of the Revenue Courts, that is to say, the Endings of the Collector and the Commissioner, which had not been upheld by the Board of Revenue. He was emphatically of the opinion that the daughters-in-law were in possession, though as trespassers. His conclusion, in effect, was that the petitioners, who were the daughters of Padarath, were entitled to the properties, but not being in possession, were not entitled to be registered in the Collectorate record. Similarly, he came to the conclusion that the'' daughters-in-law the opposite party, though in actual possession, were not entitled to be registered in place of Musammant Sakal Kuaru as they were not entitled to the property. In the result he directed that ''no new entries are to be made in the register by way of mutation of any persons ''name'' Hence, these applications in revision by the petitioners, who claim to be the daughters of Padarath.

It has been argued on their behalf by Mr. Lalnarain Sinha, in the first instance, that the learned Subordinate Judge misapprehended the scope of the reference before him, and that the only question which he had to determine under the reference was the right to possession of the properties in question. It has further been argued that the learned Subordinate Judge was not competent to go behind the reference and to* challenge the legality of the reference itself. And,, finally he has argued that the learned Subordinate Judge has not determined the only question which he should have determined as to who was entitled to possession of the properties, and thus entitled to mutation in place of the deceased Sakal Euar.

u/s 55, Land Registration Act, if, in the opinion of the Collector, the dispute between the parties be one which can more properly be determined by a civil Court, the Collector is directed to refer the matter in dispute to the civil Court for determination "as hereinafter provided." The reference apparently is to the provisions of Section 59 which lays down that the civil Court, to which the matter is referred u/s 55

shall determine summarily the right to possession in respect of the interest in dispute (subject to regular suit) and shall deliver possession accordingly.

In Janmejoy Pati and Another Vs. Gopinath Bharthi and Others, the late Sir Courtney Terrell C.J. is reported to have laid it down that the civil Court is not competent to go into the question of title u/s 55, Land Registration Act. I am not sure that his Lordship has not too narrowly restricted the scope of the enquiry by the civil Court on a reference u/s 55, Land Registration Act. The right to possession has to be determined by the civil Court, and in my opinion, the scope of such an enquiry is much wider than an enquiry into the factum of possession. It may be that, as under the law all possession is an index of title, the person in possession may prove his title by the fact of his possession. But sometimes it may be that a trespasser may be in possession, or it may be that there has been a scramble for possession after the death of the porosities or the limited owner. In that case the civil Court may have to determine the question as to the right of possession" with reference to the title to the property.

Now, coming to the orders under revision, this is another case in which Mr. Samad has tried to take a short cut by adopting, without any discussion, the findings of the revenue Courts without subjecting them to any critical examination. He has decided in favour of the petitioners that they are the daughters of Padarath, simply because the revenue Courts had agreed in coming to that conclusion. He has decided that the opposite party were in possession, simply because the subordinate revenue Courts had taken that view. It may be that the parties had agreed to base their submissions to the Court on the evidence already recorded by the revenue Courts. But that did not necessarily mean that the findings of the fact should not be independently arrived at on a critical examination of the evidence on the record. The learned Subordinate Judge, in my opinion, should have gone into these questions of fact, and examined the evidence for himself before arriving at those conclusions. It may be that those conclusions are correct. It may be otherwise. Sitting in revision, we cannot go into those questions of fact, but we must record our disapproval of the way in which he has approached the case.

The practical result of the orders of the learned Subordinate Judge is that he has refused to determine the only question which fell to be determined u/s 55 read with Section 59, Land Registration Act. Mr. Sarjoo Prasad, appearing on behalf of the opposite party, suggested, in justification of the orders of the Court below that there already having been a finding by the Collector at the appellate stage that the opposite party were in actual possession, the reference really was incompetent, and the Collector could not be said to be of the opinion necessary to make a reference u/s 55 as laid down in para. 2 of that section, But that argument loses sight of the legal position that the Collector''s orders were subject to the provisional powers of the Board of Revenue. u/s 85 of the Act, the Board of Revenue seems to have undefined and, therefore, unlimited powers of revision and modification. The ambit of his powers of revision have not been laid down in any other section of the Act. Hence it must be taken that the orders of the Collector passed at the appellate stage stood vacated by the orders of the Board of Revenue at the revision stage; and the Collector, in obedience to the orders of the Board, made a reference to the civil Court, being of the opinion that it was a question which should more properly be determined by the civil Court. The civil Court, therefore, being in see is in of the case u/s 55 of the Act, had to function within the limits laid down by that section and succeeding sections of the Act. The object of the reference u/s 55 of the Act is to have a summary decision of the right to possession of the property in question and the consequential right to have the name of that person, who is determined to have a right to possession registered in the n Register of the Collector. But according to the learned Subordinate Judge, no mutation need be made in place of the deceased Mt. Sakal Kuar, who admittedly, held the property as a widow''s estate, which came to an end with her life. There is thus a vacuum created by her death in the revenue records, and that has to be filled in by some other names. That has got to be determined by the civil Court.

It was next contended by Mr. Sarjoo Prasad that, as a remedy by way of a suit is open to the petitioners, this Court sitting in its revisional jurisdiction, should not exercise its powers. It is enough to point out that the order under revision is such an exceptional order which attracts fully the revisional powers of this Court, inasmuch as the learned Subordinate Judge has refused to determine the only question which fell to be determined in terms of the reference made by the revenue Courts. It is not one of those case where the question has been determined rightly by the civil Courts, and the matter comes in its revisional jurisdiction before this Court. The orders of the learned Subordinate Judge, as already indicated, call for interference so that the injustice which may be caused by his orders should be set right.

In view of these considerations, the orders passed by the learned Subordinate Judge are set aside, and the case sent back to the Court below for a fresh determination on a review of the evidence already on the record in the light of the observations made above. The petitioners are entitled to their costs; hearing fee two gold mohurs.

Mukharji

I agree.