Shiba Prasad Singh vs Nilabji Bali

Ray, J.—This is civil revision by the defendant in Money Suit No. 39 of 1941 in the file of the Subordinate Judge of Dhanbad. The suit is one for recovery of rents in respect of certain mining rights in mauza Sabaldi in pergana Jharia, district Manbhum. The plaintiffs'' claim is based upon a kabuliat executed by one Hardayal Singh in favour of the predecessors-in-interest of the plaintiffs on 12-6-1918 reserving the annual rent of Rs. 972/-. The defendant''s liability for payment of rent is based upon certain allegations of fact of which the most relevant ones for the purposes of this civil revision are that the lessee of the aforesaid kabuliat was a farzidar of the defendant, that in pursuance of this transaction and on account of the relationship of landlord and tenant, there had been some payments of rent towards the rent reserved in the kabuliat by the defendant''s estate, and, that therefore, the defendant is liable to pay the arrears claimed in the suit. The defendant denied all the necessary allegations, namely that Hardayal was their farzidar and that either the defendant or the defendant''s estate ever made any payment knowingly towards the rent reserved in the kabuliat. The defendant further stated that the kabuliat, if any, was entered into under mutual mistake of the parties concerned, and, therefore, it was not operative. It was also stated by the defendant in his written statement that the underground rights in respect of which the rent was claimed did not lay in the plaintiffs or their predecessors-in-interest, it having always been retained by the proprietors as a part of their proprietary interest, and the estate that was carved out in favour of the plaintiffs'' predecessors-in-interest did not carry any underground rights.

At first the suit was instituted by some of the plaintiffs who owned seven annas and odd interest in the mouza. The other cosharers had been made pro forma defendants who have since been transposed to the category of plaintiffs and after this transposition the defendant was called upon to file a supplementary or additional written statement which has been done. But nothing turns upon that.

In view of the pleadings of the parties a set of issues had been framed by the Subordinate Judge on 30th May 1941, of which those that are relevant for the purposes of this revision are:

Issue No. 3: "Had the Sikhars the alleged predecessor in interest of the plaintiff any right, title or interest in the underground of mouza Sabaldi?", Issue No. 4; "Is the allegation of a benami lease as stated in paras. 2 and 3 of the plaint true? Is there relationship of lessor and lessee between the plaintiff and the defendant? Are the terms of the aforesaid lease binding upon the defendant or enforceable against him?, No. 6: "Is the allegation of the payment of a sum of Rs. 2500 by the defendant or of subsequent payment of the Receiver true? Was there exercise of undue influence upon the defendant''s staff or Receiver or fraud and misrepresentation in the matter of such payment, if any, as alleged in the written statement?.

It may be noticed that the issue as at present proposed, namely whether the kabuliat was vitiated by a mutual mistake of the parties, was not proposed as one of the issues as originally framed. At the date of the first hearing after the parties opened their respective cases, the learned Subordinate Judge changed his mind and recast the issues in terms as follows:

No. 1. Is there a, relationship of lessor and lessee between the parties? No. 2. Was the lease executed in ignorance of the underground right of the lessee? No. 3. Are the plaintiff''s entitled to the amount claimed? No. 4. To what relief, if any, are the plaintiffs entitled?

The defendant not being satisfied with the issues as re-cast, filed an application proposing some further issues so that the matters in controversy between the parties may be finally determined. The learned Subordinate Judge however, rejected this petition and ordered the issues to stand as re-cast by him.

This revision is directed against this order of the learned Subordinate Judge, and, in support thereof, it is urged by Dr. Mitter, who appears for the petitioner, that in view of the provisions of Order 14, Rule 5, Civil P.C., it was not at the option of the Subordinate Judge to refuse to frame such issues as within the meaning of the provision are necessary for determining the matters in controversy between the parties, because the provision says that such issues shall be so made or framed. In support of his contention he has cited the authority of the Privy Council in Shamu Patter v. Abdul Kadir (12) 35 Mad 607 where it is said that it is obligatory upon the Court to frame such issues as are necessary for determining the controversy between the parties.

The learned Subordinate Judge in his order refusing to frame the necessary issues observes:

It may be mentioned that it is a claim for money and the question regarding the validity of the lease or the ignorance of the lessee arises incidentally and it is not necessary to frame specific issue on that point. The only issue that really arises in this case is whether the plaintiffs, on the allegations made in the plaint, are entitled to the amount claimed. In spite of it I have framed one specific issue regarding relationship of lessor and lessee between the parties and another whether the lease was executed in ignorance of the mineral rights of the lessee. As it is not a suit for a declaration regarding the validity or otherwise of the lease, no direct issue concerning the lease can be framed. So far as the term ''mutual mistake'' in the proposed issue is concerned, the defendant can plead his ignorance and mistake of his rights but cannot attribute or force this notion on the plaintiff who has specifically come out with a claim on the basis of the lease which he cannot admit to have been executed under a mistake on his part specially when it is stated that the defendant has been paying rent in order to keep the lease alive.

I am afraid I do not appreciate this reasoning of the learned Subordinate Judge. It seems he has pre-judged the suit at a stage when he has to frame issues.

A number of authorities beginning with Hari Narayan Singh v. Sriram Chakravarti (10) 37 Cal. 723 down to AIR 1931 89 (Privy Council) have been cited before me by the learned Counsel appearing for the petitioner to show that prima facie the sub-soil mineral rights remain in the proprietor and is not affected by any grant carved out of the proprietary right in the absence of express words of conveyance or in the absence of express evidence to that effect. It goes without saying that at this stage I am not inclined to express any opinion with regard to with whom the rights is question in respect of which the rent is sought to be recovered would prima facie lie. But it is quite clear that this is a substantial point which the defendant, who also happens to be a proprietor of the estate within which mouza Sabaldi lies, is entitled to raise. I do not agree with the learned Subordinate Judge that this being a suit for money, in other words this being a suit for recovery of rent, the question of respective rights of the parties to the subject matter of the lease does not arise. It is true that once a valid and subsisting lease is established between the parties, the lessee may be bound by the principle of estoppel and may be debarred from disputing the question of title of the lessor, but that does not prevent the alleged lessee to deny the lease and to deny his own status as a lessee. He is bound by the rule of estoppel only when he acts as a lessee and in that capacity tries to refute the title of his own lessor. That well established principle of estoppel as between lessor and lessee as enacted in Section 116, Evidence Act, does not prevent any defendant to make out the case that he has never been a lessee, and the lease purporting to make him a lessee was never a valid document, and, in that behalf, to plead such circumstances as may invalidate the lease or otherwise make it null and void.

Learned Counsel appearing for the respondents raised a preliminary objection that no civil revision lies as the Subordinate Judge having had jurisdiction to decide the suit either to frame certain issues or not was well within his jurisdiction and his order so refusing does not involve any question of wrong assumption of jurisdiction or wrongful exercise or non-exercise of jurisdiction. It is urged, therefore, that this Court has no power to interfere.

I cannot accept this contention in this particular case. As I have said before, the provisions of Rule 5 of Order 14 make it obligatory upon the Subordinate Judge to frame such issues as are necessary for determining the controversy between the parties, and if he refuses to make such issues as are really necessary for determining the controversy, I must hold that he fails to exercise the jurisdiction which is vested in him. It is further contended that the learned Subordinate Judge was the person who had the jurisdiction to decide whether any particular issue is necessary for determining the controversy between the parties, and if he decides that erroneously it raises no question of jurisdiction. I fail to appreciate this argument too because it has been always the well established principle that if the determination of any particular question of fact or law results in affecting the Court''s jurisdiction to decide a matter, an erroneous decision of that question of fact or law is also a question of jurisdiction. If the Subordinate Judge has decided wrongly that a particular issue is not necessary for determining the controversy while it is in fact necessary, it is this wrong decision of his which leads him to the position of failing to exercise his jurisdiction of framing necessary issues which he had. In my view, therefore, the civil revision does lie and the Subordinate Judge''s refusal to frame the necessary issue, which was obligatory, involves a question of jurisdiction in the sense that he has failed to exercise the jurisdiction vested in him.

In my view, therefore, the issue which is sought to be framed by the defendant in his petition filed before the learned Subordinate Judge should be added to the issues as re-cast by him. I should further direct that some of the issues that had been originally framed on 30th May 1941 should also be retained as in my view, on the pleadings, those are also necessary issues for determining the controversy. I am fully conscious of what the learned Subordinate Judge says and what the learned Counsel appearing for the opposite party urges, namely that issues 1 and 2 as re-cast are comprehensive enough to include the points now sought to be raised by the proposed additional issue and also the question of benami and other incidental questions. But in view of the Subordinate Judge''s own order the matter becomes all the more ambiguous and leaves sufficient room for controversy and may lead to certain disability to be cast upon the defendant from adducing such evidence as he would otherwise be entitled to adduce on the basis of his pleadings. In order to avoid ambiguity and for the sake of clarity, I should direct that issues 3, 4 and 6 of 30th May 1941, should also form part of the issues now to be framed. Learned Counsel for the opposite party says that an issue as to estoppel is also relevant in a case like this. I quite appreciate that, and the Subordinate Judge when moved, in that behalf, by the plaintiff should be well advised to raise an issue as to estoppel. In the result the civil revision is allowed and the order of the Subordinate Judge is set aside. Costs to abide the result. Hearing fee one gold mohur. The record may be sent down immediately.