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1957 DIGILAW 242 (RAJ)

Mina v. Board of Revenue, Rajasthan

1957-10-25

BAPNA, BHANDARI

body1957
Bhandari, J —This is a writ petition on behalf of Mina under Art. 226 of the Constitution against the Board of Revenue respondent No. 1, Jagatiya and Sonia Respondent Nos. 2 and 3 respectively. The petitioner purchased from Respondent No. 3 the occupancy rights of the land in dispute situated in the village Hamjapur under the deed of sale, dated the 25th of July, 1948 registered on the same day. Respondent No. 2 was the sub-tenant of that land and it is alleged by the petitioner that after the execution of the sale deed, Respondent No. 2 gave up the possession of the field to the petitioner Later on Respondent No. 2, dispossessed him on the 25th of August, 1948. There was a litigation between the vendor and the petitioner with regard to the mutation proceedings and mutation was sanctioned in the name of the petitioner on the 28th of February, 1952. The petitioner, thereafter, filed a suit for possession of the disputed filed on the 5th of April, 1952 in the court of the Sub-Divisional Officer, Behror. The trial court decreed the suit accepting the version given by the petitioner. The first appellate court dismissed the suit on the preliminary point that it was barred by time under Item No 12 of Group B of the First Schedule of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, (hereinafter to be called the Act) and it did not decide other questions arising in the case. This decision was upheld on second appeal by the Board of Revenue on the same ground. 2. In this writ petition it is contended on behalf of the petitioner that the decision of the Board of Revenue dated the 28th of January, 1956 is erroneous on the face of it inasmuch as it had wrongly held that the suit was governed by Item No. 12 of Group B of the First Schedule of the Act and was barred by time. It is contended triat the suit was governed by Item No. 10 in the same group of which provided a period of 12 years for the filing of the suit. A reply has been filed on behalf of respondent No. 2. It is contended triat the suit was governed by Item No. 10 in the same group of which provided a period of 12 years for the filing of the suit. A reply has been filed on behalf of respondent No. 2. It is stated that the suit has been rightly held by Board of Revenue to be governed by Item No. 12 and there was no mistake apparent on the face of the record committed by respondent No. 1 in coming to that decision. It is further urged that even if the decision of the Board on the point of limitation is held to be erroneous in law. the error was on a controversial point of law and this Court should not interfere when there is room for holding two views on a point of law, as the Board of Revenue had jurisdiction to decide the point of law arising before it and it could decide it rightly or wrongly and if the decision is wrong, it cannot be made a subject-matter of a writ petition. 3. We need not discuss at length the point as to when this Court can quash by a writ of certiorari the proceedings of the lower court when the decision of that court is based on an error on a point of law. The law on this subject has been authoritatively laid down by their Lordships of the Supreme Court in the case of Hari Vishnu Kamath vs. Ahmad Ishaque (1). It was observed in that case that :— "It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, how ever, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error apparent on the face of the records? Learned counsel on either side were unable to suggest any clear cut rule by which the boundary between the two classes of errors could be demarcated. Mr. When does an error apparent on the face of the records? Learned counsel on either side were unable to suggest any clear cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla C. J. in Batuk K. Vyas vs. Sural Borough Municipality (AIR 1953 Bombay 133 (R), that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. We have to examine the judgment of the Board of Revenue in the light of these observations. 4. The Board of Revenue after setting out the facts of the case and the respective contentions of the parties observed as follows :— This matter hat arisen on several occasions before the Board as to whether cases of this nature fall under Items No. 10, 11 or 12. In Shyama vs. Naharya (1954 R. L. W. Revenue Supplement p. 93), a Devision Bench of this Court held that a suit by a tenant for recovery of possession on wrongful dispos-sesion or ejectment was covered by Item No. 12." At this stage the Board quoted at length their earlier judgment and proceeded to observe that :— "A similar view was held in 1954 R. L. W. Revenue Supplement p. 17..............and as the suit was filed after the lapse of three years and seven and a half months, it was clearly time-barred." It is thus clear thai the Board has relied on its two previous decisions referred to above in coming to the conclusion that the suit of the petitioner was governed by Item No. 12. Before we examine these decisions, it is necessary to set out the relevant provisions of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act. By sec. 7 of the enactment it was provided that :— "(1) All suits and applications of the nature specified in the first and second schedules shall be heared and determined by a revenue court. (2) No court other than a revenue court shall take cognizance of any such suit or application, or of any suit or application based on a cause of an action in respect of which any relief could be contained by means of any such suit or application." By Sec. 9 it was enacted that :— "The suits and applications specified in the first and second schedules shall be instituted and made within the time prescribed therein for them respectively, and every was suit instituted or application made after the expiry of the period of limitation so prescribed shall be dismissed." 5. Items Nos. 10, 11 and 12 of Group B of the First Schedule of the Act are as follows: S. No. Description of Suit or Application. Period of Limitation. Time from, which periods to run. Proper Court Fee. Remarks 10. For the ejectment of a trespasser, taking possession of land without lawful authority. 12 years When the Act of trespass is committed As in the Court fees Act on the rent payable 11. For the ejnectment of a trespasser, taking possession of land duly let out to others. 13 years do do 12. For recovery of possession by a person who has been wrontgly ejected or for compensation or for both. do When the wrongful dispossession takes place. do The difficulty in the interpretation of the various items of the two schedules in the Act is that the Act is not comprehensive. The law provided mainly for procedural or jurisdictional matters such as powers of court, appeals, revisions, references, transfer of cases etc. It did not lay down the substantive rights of the parties with the result that in the description of suits or applications under the various schedules no guidance was given as to when these proceedings could be brought in a court of law and by whom. It did not lay down the substantive rights of the parties with the result that in the description of suits or applications under the various schedules no guidance was given as to when these proceedings could be brought in a court of law and by whom. In order to find out the nature of the suits or the persons who are entitled to file that suit, we are left either with the language of these items or the legislative history of the enactment of these items in so far as such historical back-ground can be made use of for the proper interpretation of the language of these items. 6. We may atonce point out the words ejectment and ejected mentioned in these items. Nos. 10 and 11 refer to the suits for the ejectment of a trespasser, but the person who can institute the suit is not mentioned. Item No. 12 mentions the person who has a right to file a suit and he is stated to be the person who has been wrongly ejected. The term ejectment is used to denote two kinds of affairs. It is used either in connection with a tenant or in connection with a trespasser. We speak of the ejectment of a tenant by a landlord or any person claiming under him. We speak of an ejectment of a trespasser by a person who has any right or claim on the land. Again we use the term eject or ejectment when a person with a superior title ejects a person with an inferior title or with no title. A trespasser can be ejected by any person who is the owner of the land or by one deriving any right, title or interest from him. Viewed in this sense Items Nos. 10 and 11 apply to the suits filed by a landlord or proprietor or under-proprietor or any person claiming under them for ejectment of a trespasser. Item No. 12 refers to a suit by a person who has been wrongly ejected. It cannot be said of trespasser that he has been wrongly ejected. The words wrongly ejected have, therefore, reference to a person who had the right to possess the land. This is also clear from the fact that a suit for compensation is also included in Item No. 12. Now if a trespasser has been ejected, he cannot claim compensation. It cannot be said of trespasser that he has been wrongly ejected. The words wrongly ejected have, therefore, reference to a person who had the right to possess the land. This is also clear from the fact that a suit for compensation is also included in Item No. 12. Now if a trespasser has been ejected, he cannot claim compensation. The case of a trespasser is, therefore, excluded under Item No. 12. Thus interpreted, Items Nos. 10, 11 and 12 all received a distinctive meaning, otherwise Items Nos. 10 and 12 may become indistinguishable. The policy of the legislature in providing these three items is to provide for three different subjects and they should be construed in that light. The cardinal principle of interpretation is that full effect should be given to the entire provisions of the law. 7. These items came for consideration in this Court in a number of cases. In the case of Nawalji vs. Jagji (2), the question that arose for determination was whether the suit in that case was filed under sec. 9 of the Specific Relief Act or under Item No. 12, Group B of the First Schedule of the Act. While considering Item No. 12 of the Act, Wanchoo, C.J. observed as follows : — "The difficulty has arisen because of the use of the word person and it may appear as if item 12, Group B, Schedule I provides for a suit by anybody who might have been dispossessed. The implication, however, of this provision, in my opinion, may be inferred from the use of the words wrongly ejected. Further this item also provided for compensation. It seems, therefore, that a suit under this items is by a person who has some title as a tenant and has been ejected otherwise than in accordance with the provisions of the revenue law. It is only then that he may be entitled to claim compensation." With respect we may say that his view is in consonance with the view taken by us. We may next refer to the case of Bhuralal vs. Thikana Badi Sadri (5). In that case it was observed that Item No. 12 could be applied not only to the case of a tenant but even to the case of under-proprietor provided that he has been wrongly ejected from his agricultural land. We may next refer to the case of Bhuralal vs. Thikana Badi Sadri (5). In that case it was observed that Item No. 12 could be applied not only to the case of a tenant but even to the case of under-proprietor provided that he has been wrongly ejected from his agricultural land. This case is also in consonance with the view that we have adopted. Next we may refer to the case of Oancha vs. Chatra (4). In that case the plaintiff alleged that he had received by a deed of gift certain plots of land and that he continued impossession thereof since the date of gift. He alleged that he was dispossessed by the defendant on the 25th of June, i947. On these allegations it was held that Item No. 10 applied to the case. We may say with respect that it was rightly held to come within Item No. 10. Thus on the language of the statute we find that the Board of Revenue had no justification for saying that Item No. 12 applied to the case of the petitioner. In the present case on the allegations of the petitioner in the plaint, the case is one in which he has a right to possess the disputed land and he wanted to eject a trespasser who had taken possession of the land. It clearly falls under Item No. 10. Simply because the petitioner was a tenant, it cannot be said that Item No. 10 was not applicable to him. 8. If we look to the historical back-ground of the enactment of these items and examine the provisions of the Jaipur State Tenancy Act, we find that the case of the petitioner fell within Item No. 47 of the Second Schedule of the Jaipur State Tenancy Act and was, therefore, governed by Item No. 10 under the Act. We need not consider the provisions of the U.P. Tenancy Act as they are meticulous in detail and varied in character and it is difficult to establish direct link between the U. P. Tenancy Act and the Act. 9. The decision relied on by the Board may now be examined. In Shyama vs. Naharya (5), the plaintiff respondent in that case was in possession of the disputed land as a tenant for a period of three years which expired in Svt. 2005. 9. The decision relied on by the Board may now be examined. In Shyama vs. Naharya (5), the plaintiff respondent in that case was in possession of the disputed land as a tenant for a period of three years which expired in Svt. 2005. The defendant appellant in that case obtained a patta from the landlord from Svt. 2006 and dispossessed the plaintiff on the 15th of July, 1949. The plaintiff thereupon filed a suit for the recovery of the possession of the land. The suit was resisted on the various grounds including that of limitation. The Board of Revenue applied) Item No. 12, Group B of the Fourth Schedule to the facts of that case after taking into consideration the provisions of the Jaipur State Tenancy Act and the U.P. Tenancy Act. Now if the various Items Nos. 10, 11 and 12 are to be interpreted in the light of the Jaipur State Tenancy Act, it is clear that Item No 12 applies to the case of a tenant who has been wrongly ejected by the landlord or his representative and who files a suit for the recovery of possession or for compensation or for both. It has no application to the case of a person who has not been ejected by the landlord or any person claiming under him. 10. In the other case relied on by the Board of Revenue, (Bhur Singh vs. Vanka (6), the respondent filed a suit for the ejectment of the appellant alleging him to be a trespasser and for compensation. The case was from Jalore which lies in the area which was formerly part of the Jodhpur State. After considering the provisions of the Jaipur Tenancy Act and the Marwar Tenancy Act, the provisions of which are similar to the Jaipur State Tenancy Act, the Board held that the suit was governed by Item No. 10. It was observed as follows :— "Sec.94 of the Marwar Tenancy Act provides, that a person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the, provisions of the law for the time being in force shall be liable to ejectment under this section on the suit of the person so entitled and also to pay damages. It is thus obvious that Sec. 94 of the Marwar Tenancy Act and Sec. 90 (a) of the Jaipur Tenancy Act provide relief to a land-holder. against a trespasser as covered by Item 10 of Group D of the First Schedule of Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. As against this, Item 12 of the same Schedule deals with cases where relief is sought by a tenant against a trespasser as described in sec. 97 of the Marwar Tenancy Act. Therefore, it was rightly held by the lower appellate court that the case was governed by Item No. 10 and the period of limitation would be 12 years." These observation support the view that when the landholder seeks to eject a trespasser, his case is governed by Item No. 10. This case instead of supporting the view taken by the Board of Revenue in the present case goes contrary to it. 11. The Board of Revenue has given no other reason for holding that Item No. 12 applied to the present case. It treated the two cases cited by it as governing the case before it and both the cases did not support the view of the Board of Revenue. 12. We, therefore, find that the Board of Revenue has committed an error in construing Item Nos. 10 and 12, Group B of Schedule I of the Act and in applying Item No. 12 to the case of the petitioner and in dismissing his suit on that basis. That error is an error apparent on the face of record inasmuch as the Board relied on its two previous decisions for coming to the conclusion that Item No. 12 applied. But on examining those decisions it turns out that they could not be held to be any authority for the proposition laid down by the Board in the present case. On the other hand, both the decisions rather supported the view that Item No. 10 applied to the present case. The Board of Revenue further failed to interpret the language of the enactment. The error being apparent on the face of record, we are of opinion, that this is a fit case in which we should exercise our extra-ordinary jurisdiction to quash the order of Board of Revenue. 13. There is another reason why we should interfere. The Board of Revenue further failed to interpret the language of the enactment. The error being apparent on the face of record, we are of opinion, that this is a fit case in which we should exercise our extra-ordinary jurisdiction to quash the order of Board of Revenue. 13. There is another reason why we should interfere. The error in this case is on a point of limitation, and the effect of the decision on a point of limitation against the plaintiff has been that the revenue courts have refused to go into the case on merits. It is true that the Board of Revenue had the jurisdiction to decide the point of limitation rightly or wrongly but the decision was erroneous and it had the effect of wrongly refusing by the Board of Revenue to exercise jurisdiction vested in it. This aspect of the case was examined by their Lordships of the Privy Council in the case of Joy Chand Lal Babu vs. Kamalaksha Chaudhary (7) in connection with the revisional jurisdiction of the High Court under sec. 115 of the Civil Procedure Code. Sec. 115 is in these items :— "The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears— (a) to have exercised a jurisdiction not veste in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit." Their Lordships observed as follows :— "Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate court has acted illegally or with material irregularity so as to justify interference in revision under sub-sec. (c), nevertheless, if the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law, or failing to excercise a jurisdiction so vested, a case for revision arises under sub-s. (b), and sub-s. (c) can be ignored. (c), nevertheless, if the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law, or failing to excercise a jurisdiction so vested, a case for revision arises under sub-s. (b), and sub-s. (c) can be ignored. The cases of Babu Ram vs. Munnalal 49 Al 454 : (AIR (14) 1927 All, 358) and Hari Bhikaji vs. Naro Vishvanath, 9 Bom., 432, may be mentioned as cases in which a subordinate courts by its own erroneous decision (erroneous that is in the view of the High Court), in the one case on a point of limitation and in the other on a question of res judicata, invested itself with a jurisdiction which in law it did not posses, and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such result." This then is the position with regard to the revisional jurisdiction of the High Court What should be taken to be the position while issuing a writ of certiorari under Art. 226 of the Constitution ? The powers of granting a writ of certiorari under Art. 226 of the Constitution are much wider. Their Lordships of the Supreme Court in Hari Vishnus case (1) after review of the authorities observed that :— "The following propositions may be taken as established : (1) Certiorari will be issued for correcting errors of jurisdiction, as when an : inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in certiorari". These propositions are well-settled and are not in dispute." The above observations snow that all the grounds that can be taken in a revision application, can be taken in a writ of certiorari. The revisional jurisdiction vested under sec. 115, C. P. C. is analogous to the powers of issuing a writ of certiorari or a writ of prohibition vested in the Courts in England (vide Shiva Nathaji vs. Joma Kashinath (8). 14. We are, therefore, of opinion that in the present case the Revenue Board failed to exercise jurisdiction vested in it of deciding the case of the petitioner on merits by dismissing the suit on the point of limitation. 15. We therefore, accept the writ petition and quash the judgment of the Board of Revenue dated the 28th of January, 1936. We hold that the suit filed by the petitioner was within Item No. 10, Group B of the First Schedule of the Act. The case will go back to the Board for decision according to law. The costs of this writ petition shall be borne by respondent No. 2.