Shanti Parshad and Others vs Kunj Lal

Passey, J.—This is an appeal by the Plaintiffs against the decree of the District Judge Narnaul dismissing their suit for possession and recovery of Rs. 2053/12/0 on 10-3-1977, one Mithlesh Behari mortgaged 44 bighas 3 biswas of agricultural land situate in Narnaul to Badri Parsad and Prabhu Dial for Rs. 8215/-. The mortgagees having died, their successors including the Plaintiffs further mortgaged their mortgagee rights in that land to Qabul Chand for Rs. 7,000/- on 21-4-1987. The Plaintiffs were then minors and the alienation on their behalf was made by their natural, guardians. The subsequent mortgagee let out the land on ''Chakota'' to his mortgagors who therefore continued to be in possession. He had to sue them from time to time for recovery of the rent due from them and succeeded in obtaining decrees in several suits from the Revenue Courts. The Plaintiffs were parties to all those suits and were represented by their guardians-ad-litem. Between the years 1990 and 1996 Bk. he had obtained five such decrees for various amounts and in execution thereof he had got attached and sold certain properties belonging to the judgment-debtors. The Plaintiffs had 1/4th share in those properties.

On 23-6-1993 the Plaintiffs instituted a suit for having the mortgage in favour of Qabul Chand dated 21-4-1987 declared void qua them, but that suit was dismissed on 7-7-1997. On 5-12-1985 Qabul Chand brought a suit for the recovery of the amount due to him on the mortgage against his mortgagors including the Plaintiff''s and obtained a decree for Rs. 7,328/2/- on 23-9-1997. On 6-5-2000, the original mortgagor Mithlesh Behari applied to the Collector under the Redemption of Mortgages Act for redemption of his land on payment of Rs. 8,215/-. That application was allowed on 8-1-2001 and Mithlesh Behari having deposited the mortgage money, got back the possession of his land. Qabul Chand in execution of his decree dated 23-9-1997 got the amount deposited by Mithlesh Behari with the Collector for payment to the successors of Badri Parsad and Prabhu Dial mortgagees attached. That amount viz., 8215/- was paid to him in satisfaction of his claim.

The Plaintiffs brought the present suit for possession of their 1/4th share in the properties sold in execution of the decrees of the revenue Courts for arrears of rent due to Qabul Chand and for Rs. 2053/12/- which was their 1/4th of 8215/- which Qabul Chand had realised in execution of his decree dated 23-9-1997. The suit was based on the allegation that in the suits instituted by Qabul Ohand in the civil and revenue courts no guardian-ad-litem of the Plaintiffs had been got appointed'' by him from the Courts and that those persons who had represented them had been extremely remiss in the defence of those suits. Those decrees were, therefore, described as having been obtained by fraud. The defendants resisted the suit on all the grounds taken up by the Plaintiffs categorically. The trial Court framed the following two issues:

Whether this Court has jurisdiction to try this suit and whether this Court has jurisdiction to cancel and to go beyond the decrees and other orders relating to sale mentioned in the plaint.

Whether the Plaintiffs are entitled to get the mortgage dated 21-4-1987 cancelled) and to recover the amount in the presence of decrees dated 23-9-1997 and 7-7-1997 and the order of the Nazim dated 8-1-2001 with regard to redemption.

and decided both of them against the Plaintiffs and dismissed their suit.

So far as issue No. 2 goes, it must be decided against the Plaintiffs. It has been mentioned above that the Plaintiffs had instituted a suit for avoiding the mortgage dated 21-4-1987 and had failed in that suit. They were also parties to the suit instituted by Qabul Chand on 5-12-1995 to recover the mortgage money due to him from his mortgagors. That suit had been decreed on 7-7-1997. Those two decrees are still subsisting and they have not been attacked in the present suit. The statement, of the Mukhtiar of the Plaintiffs, makes it clear that no steps had been taken by them to get those decrees declared void or ineffective against them. As those decrees subsist, they have to be regarded to be perfectly valid against the Plaintiffs and the decree-holder could get the benefit granted to him by those decrees irrespective of the fact that the Plaintiffs against whom they were passed were minor''s at the time.

The Plaintiffs could have challenged those decrees and have them set aside by alleging and proving fraud or slackness of their guardians but till that was done they could not avoid their effect and deprive their decree-holder of the rights acquired by him under those decrees. So long therefore as those two decrees stand, the Plaintiffs having been parties to both of them, cannot get out of them, and since Rs. 8,215/- were realised by Qabul Chand in execution of his decree dated 23-9-1997 which was against the Plaintiff''s also they cannot now be heard to say that Qabul Chand had obtained that amount illegally. No part. of the amount recovered by Qabul Chand which included a claim against the Plaintiffs also and had been decreed by a Court of competent jurisdiction can, therefore, be held to be refundable to them. Their suit with regard to that amount has, in our view, been rightly dismissed by the trial Court.

Issue No. 1, however, does not appear to have been dealt with from the correct legal angle. The allegation of the Plaintiffs was that the decrees and orders of the revenue Courts in execution whereof the properties described in the plaint in which they had 1/4th share had been sold, had been passed ex parte as a result of fraud, as they were not represented. No guardians for them in those suits had beer appointed and they had thus remained unrepresented. It was claimed, therefore, that the decrees and orders in execution could not affect their rights in those properties and that they were entitled to recover their possession after getting the declaration that they were ineffective qua them. The exact words in Para No. 16 of the plaint were these:

Nalshat wa ajraye digri-haye az Ziman 5 ta 14 arzi Dava haza is wajah se keh nabalgan ke khilaf bila kisi sarprasat bananeke yak tarfa nabalgan ki ''unrepresented'' halat men sadar hooi hain. Aur ajraye digri men kci sarprasat mahafaz haquq malqan na the Muddian ki bahut bhari malkiat ki jaidad barayenam kimat per sazshan wa ehalaki wa fareb se nilam wa digri haye sadar hooi hain, bamaqabla haquq muddian nabalgan kaladam wa ghair muassar hai. Aur muddian is amar ke musthiq hai ke Adalat se yeh qrardad hasal karke tamam digriat wa ajraye digri haye wa nilam haye jaidar'' Mehavala ziman haye mazkoor muddian nabalgan shamil nahin hooye aur muddian qabza jaidad nilam shuda ka wapis pane ke musthiq wa haqdar hain.

The trial Court has decided issue No. 2 against the Plaintiff''s because in its opinion the Plaintiffs had not prayed for the cancellation of the decrees of the Revenue Court. The learned trial Judge has said in his judgment that

I have already observed that the Plaintiffs have not prayed for the cancellation of the decrees of the Revenue Courts, decrees of the Civil Courts, sp the suit in the present form cannot lie and the relief claimed cannot be granted in the presence of those decrees.

This finding has to be held to be wrong, as it overlooks the statement of the Plaintiffs'' case as given in the plaint itself. They have sued for possession of their share of the property sold in execution of the decrees of the Revenue Courts and that relief, they stated, should be granted to them after making a declaration that those decrees had been passed and orders in execution made as a result of fraud and were consequently inoperative against them. The contents of Clause (16) of the plaint unmistakably indicate that the Plaintiffs had attacked those decrees as unsustainable on account of their having been obtained by fraud. The plaint included all that could be pointed out to stress that the decrees and orders referred to above were of no effect so far as the Plaintiffs'' interests in these properties were concerned. The relief of avoiding those decrees & orders was prayed for in paragraph 16 and the mere fact that in the ultimate clause of the plaint in which is usually embodied the prayer for relief, the grounds cn which that prayer was sought was not repeated, could not give rise to the conclusion that the Plaintiffs had not asked for avoiding those decrees and orders.

The other question at this stage would be whether a Civil Court has jurisdiction to entertain a suit to set aside a decree of a Revenue Court alleged to have been obtained through misrepresentation and fraud. Section 9, Civil P.C., lays down that Civil Courts have jurisdiction to try all suits of a civil nature excepting suits of which cognizance is either expressly or impliedly barred. That a particular decree was obtained by fraud from a Revenue Court necessarily involves a dispute of a civil nature and the fact that a Revenue Court had passed that decree will not make a suit for avoidance of that decree on the ground that it had been obtained by fraud and misrepresentation cognizable by the same court. In-''Kale Khan v. Masud Hussain'' AIR 1941 Oudh 223 it was held that a civil Court has jurisdiction to entertain a suit by a minor to set aside e decree obtained against him in a Revenue Court on the ground that he was not properly represented as such right is recognised by law and the jurisdiction of civil. Courts to entertain such suits is not excluded by any legislative enactment.

In-''Siraj Fatima v. Mahmood Ali'' AIR 1932 Alla 293 (F.B.)(B) it was held that in cases of this description the jurisdiction of the civil courts to entertain a suit exists unless it has been taken away by clear legislative enactment. In-'' Mt. Jahandar Begam and Another Vs. Chinta it was held that the Civil Court is the proper Court to determine the question of fraud and. even when a decree is obtained by fraud in the Revenue Court, the jurisdiction of the Civil Court arises to have it declared null and void by reason of the fraud. In- Mukhtar Ahmad Vs. Lachman Prasad, this question was again considered and it was held that where fraud or collusion is alleged and. one person has derived benefit and another has lost by such fraud or collusion, the jurisdiction of the Civil Court certainly arises.

The learned Counsel of the Appellants has referred us to a judgment by S. Niranjan Parshad J. of the Patiala High Court reported in-''7 PLR 279'' (E). The learned Judge has in that case no doubt held that the Civil Courts have no jurisdiction to entertain and decide a suit on the basis of fraud to set aside a decree passed by a competent Revenue Court in a case exclusively triable by that Court; but his judgment does not contain any argument for that conclusion except that it was stated that it would be inequitable that Civil Courts should sit in judgment over the decrees of revenue courts in suits exclusively triable by them. The provisions of Section 9, Civil P.C., were not taken into account and the fact that the right to avoid the decree obtained by fraud or collusion whether passed by a Civil Court or a Revenue Court is a substantive right and a suit to enforce that substantive right would be clearly one of a civil nature falling within the purview of that section was ignored. Reliance in that case was placed upon-''Dalipa v. Barkat Ali'' AIR 1923 Lah 412 (F) of which the facts were entircly different and which did not decide that civil Courts would have no jurisdiction to try a suit for having a decree of a Revenue Court obtained by fraud declared void. The authority cited by Shri Dalip Chand does not in our view lay down the law correctly. For the reasons given above, we have no hesitation in holding that the trial Court had jurisdiction to try this suit.

We, therefore, accept the appeal and remand the case to the trial Court for proceeding with the suit in accordance with law so far as it relates to the relief for possession of the properties alleged to have been sold in execution of the decrees and the orders of the Revenue Courts mentioned in the plaint are concerned.

Since out of the two preliminary issues the Plaintiffs succeed on issue No. 1 but fail on issue No. 2, they are entitled to refund of so much of the court-fee paid by them in appeal as has been paid by them on that part of the subject-matter in respect whereof the suit has been remanded for being proceeded with further. Costs of this appeal shall abide the decision of the suit by the trial court. The parties through their counsel have been directed to appear in the trial Court on the 25th of May 1953.

Teja Singh, C.J.

I agree.