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2008 DIGILAW 376 (AP)

Nammi Venkata Swamy v. Nodagala Sanyasi

2008-06-16

P.S.NARAYANA

body2008
JUDGMENT 1. Heard Sri P.Sri Raghuram, the learned Counsel representing the appellants and Sri Kowturu Vinay Kumar, the learned Counsel representing the 1st respondent. 2. The 1st respondent in this Second Appeal is the plaintiff in the suit O.S.No.277/80 on the file of Principal District Munsif, Visakhapatnam. The plaintiff instituted the suit as against defendants 1 to 11 at the first instance praying for the relief of declaration that the plaintiff is the permanent tenant with the rights of occupancy in relation to the plaint schedule property and further for a consequential relief of permanent injunction against defendants 1 to 8 restraining them from interfering with his possession and enjoyment in relation to the plaint schedule property. Defendants 12 to 23 were brought on record as per orders in I.A.No.1175/92 dated 19-9-1992. 3. The defendants resisted the suit. The learned District Munsif, Visakhapatnam in the light of the respective pleadings of the parties, having settled the Issues, recorded the evidence of P.W.1 to P.W.4, D.W.1 to D.W.4, marked Exs.A-1 to A-7, Exs.B-1 to B-9 and after recording appropriate findings, came to the conclusion that the suit be decreed in favour of the plaintiff and against defendants 1, 3, 5 to 10, 12 to 23 granting the relief of declaration that the plaintiff is the permanent tenant with rights of occupancy of the plaint schedule property and consequently granted the relief of permanent injunction restraining defendants 1, 3, 5 to 8, 12 to 19 from in any way interfering with the peaceful possession and enjoyment of the plaint schedule property by the plaintiff. Defendants 1 to 8 and 12 to 19, being aggrieved of the said Judgment and Decree made in the aforesaid suit carried the matter by way of Appeal A.S.No.148/95 on the file of II Additional District Judge, Visakhapatnam and the appellate Court having framed the Points for consideration at para-8, proceeded to discuss the oral and documentary evidence available on record and also the findings recorded by the Court of first instance commencing from paras 9 to 32 and further referred to the decisions in Krishna Ram Mahale Vs. Shobha Venkat Rao, 1989(4) SCC 131 , K.Krishna Vs. T.T. Devasthanams, 1995(2) ALD 696 (DB) = 1995(2) ALT 122 (DB), Gajuwaka Gram Panchayat Vs. M.V.Suryanarayana, 1995(2) ALD 174 (DB) = 1995(2) ALT 113 (DB), Kanhaiyalal Vs. Dr. Shobha Venkat Rao, 1989(4) SCC 131 , K.Krishna Vs. T.T. Devasthanams, 1995(2) ALD 696 (DB) = 1995(2) ALT 122 (DB), Gajuwaka Gram Panchayat Vs. M.V.Suryanarayana, 1995(2) ALD 174 (DB) = 1995(2) ALT 113 (DB), Kanhaiyalal Vs. Dr. D.R. Banaji and others, AIR 1958 SC 725 and ultimately came to the conclusion that the Appeal is devoid of merit and accordingly dismissed the said Appeal. Aggrieved by the same, appellants 11 to 14 and 17 further carried the matter by way of the present Second Appeal. 4. This Court on 4-2-1999 made the following order: "Admit on the substantial questions of law raised in paragraph-12 of the Memorandum of Second Appeal". The said substantial questions of law raised are as hereunder:- (a) Whether the suit for declaration regarding tenancy and occupancy rights is maintainable with regard to Inam lands ? (b) Whether the Court below was having jurisdiction to declare the title and possession when no survey number was given in the plaint schedule ? (c) Whether the Court below had jurisdiction to declare the rights of the plaintiff without the real owner being party to the proceedings ? 5. Sri P.Sri Raghuram, the learned Counsel representing the appellants had taken this Court through the respective pleadings of the parties, the Issues settled by the Court of first instance, the findings recorded by the Court of first instance and also the Points formulated by the appellate Court and the findings recorded by the appellate Court and would maintain that in the facts and circumstances of the case and also in the light of the nature of the relief which had been prayed for in the suit, the Civil Court has no jurisdiction to entertain such suit at all. The learned Counsel also had pointed out to the affidavit filed by the appellants before this Court and specifically had drawn the attention of this Court to the subsequent events which had been specified in para-4 of the said affidavit in particular. While elaborating his submissions, the learned Counsel also would maintain that Inamdar and Mokhasadar, these were not shown as parties or were impleaded as parties and there is some controversy whether P.W.2 is the Mokhasadar or D.W.4 and in the absence of the real owner, the Inamdar or the Mokhasadar, a suit for declaration of this nature cannot be maintained at all. The learned Counsel also would maintain that there is absolutely no evidence relating to the conversion of these lands. The learned Counsel would also maintain that there is a specific Issue relating to the maintainability of the suit before a Civil Court. The learned Counsel while further elaborating his submissions had drawn the attention of this Court to Sections 3, 4, 7, 8, 10 and 14 of A.P. (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act 1956 (hereinafter in short referred to as "Act" for the purpose of convenience) in general and Sections 8 and 14 of the said Act in particular and would maintain that in the light of the same, definitely a declaratory relief of this nature cannot be granted by a Civil Court though it is doubtful whether the relief of perpetual injunction can be granted. The learned Counsel also placed strong reliance on certain decisions and further would maintain that in the light of the subsequent events brought to the notice of this Court, it is a fit case where an order of remand to be made. 6. Per contra, Sri Kowturu Vinay Kumar, the learned Counsel representing the 1st respondent/plaintiff would maintain that this is not a case where Section 14 of the Act aforesaid would be attracted. The learned Counsel also would submit that the defendants 1 to 8 have no right at all to interfere. This is a dispute between a tenant/plaintiff and certain other alleged tenants and hence contending that the Civil Court has no jurisdiction is definitely an unsustainable contention. The Counsel also would maintain that the mere fact that that the Inamdar or Mokhasadar had not been impleaded as a party would not seriously alter the situation since there is no cause of action against those parties and hence the plaintiff had not impleaded such parties, they being unnecessary parties to the present litigation. The learned Counsel also would maintain that the finding relating to the factum of possession predominantly being a question of fact and since concurrent findings had been recorded by both the Court of first instance and also the appellate Court, this Court should be slow in disturbing such findings in a Second Appeal. The learned Counsel also would maintain that in the light of the facts and circumstances, it is not a fit case for remand. The learned Counsel also would maintain that in the light of the facts and circumstances, it is not a fit case for remand. The learned Counsel also relied upon certain decisions to substantiate his submissions. 7. For the purpose of convenience, the parties hereinafter would be referred to as shown in O.S.No.277/80 on the file of Principal District Munsif, Visakhapatnam. 8. The plaintiff filed the suit for the reliefs which had been already specified supra. The brief averments made in the plaint are : 9. The defendants 9 to 11 are the senior Mokhasadar of Devada village who leased out the schedule land to the plaintiff long ago on annual rent of Rs.5/- and written kouls were also executed in favour of the plaintiff and therefore the plaintiff is the permanent tenant with rights of occupancy of the schedule land and had been cultivating and enjoying the same. The plaintiff being in military service, left his family at Tallavalasa and his wife had been attending to the agricultural operations. While the matters stood thus, the defendants 1 to 8, taking advantage of the absence of the plaintiff from the village, had been threatening his wife and children to trespass into the schedule land and a complaint was given to the Police through the Military superiors of the plaintiff and the local police did not take effective steps. In stead, they filed cases for affray in S.T.C.No.217 to 233/1979 on the file of V Additional Judicial First Class Magistrate, Visakhapatnam. However, the matters ended in acquittal and taking advantage of that fact, the defendants 1 to 8 had been declaring that the plaintiff is not the tenant and they would evict him by using force and hence the plaintiff was constrained to file the suit for the relief of declaration of his permanent occupancy rights and consequential relief of permanent injunction. 10. The 1st defendant filed written statement. Defendants 2 to 5 and 7 filed Memo of Adoption adopting the written statement of the 1st defendant. The remaining defendants had not chosen to contest the matter. The averments made in the written statement in brief of the 1st defendant are as hereunder:- 11. The defendants 9 to 11 have absolutely no right in Mokasa village of Dewada nor could they lease the schedule land to the plaintiff. The remaining defendants had not chosen to contest the matter. The averments made in the written statement in brief of the 1st defendant are as hereunder:- 11. The defendants 9 to 11 have absolutely no right in Mokasa village of Dewada nor could they lease the schedule land to the plaintiff. The very fact that annual rent was Rs.5/- itself shows the falsity of the entire case of the plaintiff. The defendants 9 to 11 are behind this litigation and the plaintiff filed the suit at their instance. The plaintiff belongs to Yendada village and he is not cultivating the schedule lands and he is not the tenant at all. The defendants 1 to 5 and 7 had been in possession and enjoyment of the suit schedule land since the time of their grandfathers and the plaintiff appears to have made certain false complaints and they were not believed by the concerned authorities and the plaintiff had been trying to take undue advantage of his military services. Dewada originally was a Mokhasa village granted by the Inam by the Moghal Emperor Aurangazeb. Dewada Mokasa was granted for the purpose of service to Darga of Muslims in Kota Veedhi, Visakhapatnam and Senior Muttavallis who had been maintaining the Darga continued to be in possession of the land in the Mokasa village and subsequently the Government resumed service Inam and regranted it to the Mokasadars represented by one Janab Fakeer Ahmed and others and defendants 9 to 11 have no right to claim rights in the suit schedule land and they are only share holders through some of the Mokasadars and they shared along with one of the Mutavallis and they are not Mokasadars. The suit itself is misconceived and is not maintainable and liable to be dismissed with costs. 12. On the strength of these pleadings, the following Issues were settled by the Court of first instance : 1. Whether the plaintiff is entitled to declaration asked for in the suit ? 2. Whether the plaintiff is entitled to the consequential relief of permanent injunction asked for ? 3. Whether the plaintiff is in possession of the plaint schedule property ? 4. Whether the tenancy set up by the plaintiff is true ? 5. Whether the plaintiff is entitled to occupancy rights in the plaint schedule property ? 6. Whether the suit is not maintainable? 7. To what relief? 3. Whether the plaintiff is in possession of the plaint schedule property ? 4. Whether the tenancy set up by the plaintiff is true ? 5. Whether the plaintiff is entitled to occupancy rights in the plaint schedule property ? 6. Whether the suit is not maintainable? 7. To what relief? Before the Court of first instance, P.W.1 to P.W.4 were examined and Exs.A-1 to A-7 were marked on behalf of the plaintiff. P.W.1 is the plaintiff himself. P.W.2 is one of the Mokhasadars - 9th defendant in the suit. P.W.3 is a witness having acquaintance with the village and the parties to the proceedings. P.W.4 is also a witness similar to that of P.W.3. Likewise, D.W.1 to D.W.4 were examined on behalf of the defendants and Exs.B-1 to B-9 were marked. D.W.1 is the 4th defendant, D.W.2, D.W.3 and D.W.4 are the residents of the village having acquaintance with the parties and also the plaint schedule properties. 13. The suit was originally disposed of on merits on 28-4-1987 dismissing the same and the plaintiff carried the matter by way of Appeal A.S.No.88/87 on the file of II Additional District Judge, Visakhapatnam wherein the plaintiff also filed I.A.No.114/89, an application under Order 41 Rule 27 of the Code of Civil Procedure to receive certain documents as additional evidence and the same was allowed on 26-2-1992 and the learned II Additional District Judge, Visakhapatnam made an order of remand directing the Court of first instance to give opportunity to both the parties to let in further evidence and to dispose of the matter in the light of such additional evidence which may be adduced by the parties. The witnesses who had been examined already had been recalled and further evidence had been let in and the defendants had not chosen to adduce any further evidence. After remand, the Court of first instance on appreciation of the oral and documentary evidence recorded certain findings, referred to the decisions M.Mulayya Vs. Appanna 5 and Yarakareddi Mallereddi Vs. Sayed Amanulla Hussain 6 and ultimately came to the conclusion that the plaintiff is entitled to the relief prayed for and decreed the suit as already specified above. After remand, the Court of first instance on appreciation of the oral and documentary evidence recorded certain findings, referred to the decisions M.Mulayya Vs. Appanna 5 and Yarakareddi Mallereddi Vs. Sayed Amanulla Hussain 6 and ultimately came to the conclusion that the plaintiff is entitled to the relief prayed for and decreed the suit as already specified above. Aggrieved by the same, the defendants 1 to 8 and 12 to 19 carried the matter by way of Appeal A.S.No.148/95 on the file of II Additional District Judge, Visakhapatnam and the appellate Court framed the following Points for consideration at para-8 of the Judgment : (1) Whether the lower Court committed any material irregularity which warrants interference of this Court ? (2) Whether the appellants are the tenants of the property ? The appellate Court, as already specified above, recorded reasons in detail commencing from paras 9 to 32 and came to the conclusion that the Court of first instance had not committed any irregularity whatsoever warranting interference by the appellate Court and dismissed the Appeal with costs. Thus, certain of the unsuccessful parties had carried the matter by way of the present Second Appeal. 14. The Substantial questions of law raised in the present Second Appeal already had been referred to supra. The Counsel representing the respective parties made elaborate submissions on the strength of the substantial questions of law and also incidentally touched certain factual controversies as well. The principal question which had been argued in elaboration is in relation to the jurisdiction of the Civil Court to entertain a suit of this nature in the light of the provisions of the Act, especially the relief of declaration of tenancy rights. 15. The respective pleadings of the parties, the Issues settled, the evidence adduced, the findings recorded by the Court of first instance and also the appellate Court had been already discussed in brief. The specific stand taken by the plaintiff is that he is the cultivating tenant in respect of the plaint schedule property, agricultural land, which had been leased out by defendants 9 to 11 - Mokhasadars of Devada village, an Inam village. Strong reliance was placed on Ex.A.3, the proceedings of the Tahsildar, Visakhapatnam under Section 3(1) of the Act. The specific stand taken by the plaintiff is that he is the cultivating tenant in respect of the plaint schedule property, agricultural land, which had been leased out by defendants 9 to 11 - Mokhasadars of Devada village, an Inam village. Strong reliance was placed on Ex.A.3, the proceedings of the Tahsildar, Visakhapatnam under Section 3(1) of the Act. The plaintiff as P.W.1 deposed that he had taken the suit schedule land on lease from defendants 9 to 11 on annual rent of Rs.5/- in 1974 and lease agreements also had been executed by defendants 9 to 11 in his favour under Exs.A-4 to A-6 in 1974, 1975 and 1978 respectively and in token of the receipt of rents, the Mokhasadars also issued receipts under Exs.A-1, A-2 and A-7. Though several suggestions were put to P.W.1 in cross-examination all those suggestions specifically had been denied. The evidence of P.W.1, P.W.2, P.W.3 and P.W.4 had been appreciated at length and Exs.A-1 and A-2 receipts, Exs.A-4, A-5, A-6 the original kouls, Ex.A-7 receipt executed by Abdul Jabbar in favour of the plaintiff also had been appreciated and findings had been recorded by both the Court of first instance and also the appellate Court. The 4th defendant examined himself as D.W.1 and three other witnesses also had been examined on his behalf. Exs.B-1 to B-9 were marked. D.W.1 deposed in detail the stand taken in the written statement and the evidence of D.W.2, D.W.3 and D.W.4, the residents of the village which is more or less general in nature in support of the version of D.W.1. Exs.B-1 to B-9 are the receipts issued in the name of N.Venkataswamy. The evidence of D.W.2, D.W.3 and D.W.4 also had been appreciated in detail and as far as the factum of possession is concerned, concurrent findings had been recorded by both the Court of first instance and also the appellate Court. 16. Strong reliance was placed on the decision in Sayyed Ali and others Vs. A.P. Wakf Board, Hyderabad and others 7. No doubt it was pointed out that this decision also relates to title deed No.42 consisting of a large extent of land inclusive of the plaint schedule property. 16. Strong reliance was placed on the decision in Sayyed Ali and others Vs. A.P. Wakf Board, Hyderabad and others 7. No doubt it was pointed out that this decision also relates to title deed No.42 consisting of a large extent of land inclusive of the plaint schedule property. Further reliance also was placed on paras 8, 9, 10, 11 and 12 which read as hereunder:- "In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy (1970) 1 SCC 613 : AIR 1971 S.C. 2355 ) this Court observed as follows (S.C.C. pp.618-19, paras 9 and 10): "A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Similarly, by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise". In Richpal Singh v. Dalip (1987) 4 S.C.C. 410 : AIR 1987 S.C. 2205 ) this Court held thus: (SCC P.420, para 15) "A salutary and simple test to apply in determining whether the previous decision operates as res judicata or on principles analogous thereto is to find out whether the first court, here the Revenue Court could go into the question whether the respondent was a tenant in possession or mortgagee in possession. It is clear in view of language mentioned before that it could not. If that be so, there was no res judicata. The subsequent civil suit was not barred by res judicata". In Pandurang Mahadeo Kavade v. Annaji Balwant Bokil (1971) 3 SCC 530 ) it was held that in order to operate res judicata it must be established that the previous decision was given by a court which had jurisdiction to try the present suit, and the plea of res judicata would not be available if the previous decision was by a court having no jurisdiction. Learned Counsel for the appellant referred to a decision of this Court in the case of Mohanlal Goenka v. Benoy Kishan Mukherjee ( AIR 1953 S.C. 65 : 1953 S.C.R. 377) in support of his argument. In this case it was held that the principle of res judicata will also apply to execution proceedings. Learned Counsel for the appellant referred to a decision of this Court in the case of Mohanlal Goenka v. Benoy Kishan Mukherjee ( AIR 1953 S.C. 65 : 1953 S.C.R. 377) in support of his argument. In this case it was held that the principle of res judicata will also apply to execution proceedings. But this case has no bearing on the controversy which is before us, and, therefore, learned Counsel cannot derive any assistance from this decision. Thus, it is well settled that doctrine of res judicata does not apply to a decision of a court or tribunal which lacked jurisdiction. In the light of the above legal position, we hold that the decision of the Tahsildar under Section 3 of the Inams Act as to the character of the wakf property which was upheld by the High Court of Andhra Pradesh being one passed without jurisdiction, cannot operate as res judicata and the High Court of Andhra Pradesh was justified in ignoring the said decision and in not giving effect to it. It was then contended by the learned Counsel for the appellant that the suit filed by the Wakf Board was not maintainable in view of Section 14 of the Inams Act. We having found that the property was a service inam granted to individuals burdened with service, which answered the description of all the ingredients of wakf, the Tahsildar under Section 3 of the Inams Act, was not required to adjudicate as to whether it is a wakf property or not. His decision holding that the property is not a wakf property was not within his domain, and the decision could not be said to have been passed under the Inams Act. Decision or order contemplated under Section 14 of the Inams Act presupposes an order passed within jurisdiction. Since, the order passed by the Tahsildar has been found to be without jurisdiction. Section 14 of the Act which bars the jurisdiction of the Civil Court would not be attracted in the subsequent suit. In the present case, since it was not within the domain of the Tahsildar to embark upon an enquiry in respect of wakf property, Section 14 of the Inams Act cannot affect the maintainability of the suit filed by the Wakf Board. In the present case, since it was not within the domain of the Tahsildar to embark upon an enquiry in respect of wakf property, Section 14 of the Inams Act cannot affect the maintainability of the suit filed by the Wakf Board. Learned Counsel for the appellant relied upon a decision of this Court in Vatticheruku village Panchayat v. Nori Venkataramam Deekshithulu (1991 Supp.(2) SCC 228 : (1991) 2 S.C.R. 531) in support of his argument that by virtue of Section 14 of the Inams Act, the decision of the Tahsildar cannot be challenged in a subsequent suit. No doubt, in this case, it was held that the Inams Act gives finality to the orders and decisions given by the authorities, but it is not the case here. We have already held that the Tahsildar under Section 3 of the Inams Act was not competent to enquire into or give decision in respect of the character of the wakf property, therefore the said decision is of no assistance to the argument of the learned Counsel." 17. Further, strong reliance was placed on Sections 8 and 14 of the Act and the said provisions read as hereunder:- Section 8: Right of permanent occupancy to tenants in inam lands held by institutions in inam villages: (1) In the case of an inam land held by an institution in an inam village, the tenant who is declared to be in occupation of the inam land on the 7th January, 1948 under Section 5, or if there is no such tenant, the tenant in occupation of the land on the date of commencement of this Act, shall have a right of permanent occupancy in that land and the said right shall be heritable and shall be transferable by sale, gift or otherwise. (2) Where any tenant having such right of permanent occupancy - (i) fails to pay rent due by him to the institution - (a) in respect of a period immediately before the commencement of this Act, within sixty days from such commencement; or (b) in respect of a period after the commencement of this Act, within sixty days from the date when the rent became payable; or (ii) uses the land in any manner which materially impairs the value of the land and renders it unfit for agricultural purposes; It shall be lawful for the institution to evict such tenant as provided in Section 9. Explanation :- For the purpose of this section, Section 9 and Section 10, the expression "tenant" includes his successor-in-interest. Section 14 : Bar of jurisdiction of Civil Courts: No suit or other proceeding shall be instituted in any Civil Court to set aside or modify any decision of the Tahsildar, the Revenue Court, or the Collector under this Act, except where such decision is obtained by misrepresentation, fraud or collusion of parties. 18. The Counsel for the 1st respondent/plaintiff placed strong reliance on a decision of this Court referred (3) supra wherein the Division Bench at paras 3 and 4 observed : "So far as the first submission is concerned, it has no force as the respondents had come with the suit claiming the title to the land in them and seeking recovery of possession. It was not necessary for them to have pleaded the land as inam land or as estate under the Estates Abolition Act. It is not their case that the land being estate under the Estates Abolition Act, had got vested in the State and that they obtained ryotwari patta in respect of the land. It was only the appellant who raised the question of the land being inam under the Inams Abolition Act, to have been determined as such and to have vested in the State. It was hence for them to establish such fact and the learned Single Judge has, while considering such question raised, answered the same denying the land to be inam and instead held it to be estate as per the evidence on record. It was hence for them to establish such fact and the learned Single Judge has, while considering such question raised, answered the same denying the land to be inam and instead held it to be estate as per the evidence on record. For the purpose, he took into consideration the description of the land in the sale deeds Exs.A-1 and A-2 registered respectively in the years 1964 and 1968 wherein the lands had been described as Mokhasa lands. The trial Court also had looked into, while reaching the conclusion, a photostat copy of the order of the Special Tahsildar where Gajuwaka was described as Mokhasa village of A.V. Bhanoji Rao, the vendor of the land. Strictly speaking, the photostat copy could not have been looked into for the purpose as it had not been admitted into evidence. But there was ample evidence otherwise on the legal position as was discussed by the learned Single Judge to reach the conclusion. The learned Judge considered the fact that under the very definition of 'inam' under the Inams Abolition Act, any land which was estate under the Madras Estates Land Act, 1908 was excluded from being inam and that a Mokhasa land, which was explained as jagir land in the Commentary of Sundararaja Ayyangar's Text Book on Land Tenure in the Madras Presidency, was excluded from the purview of the Inams Abolition Act. While this question being considered, the third submission urged by the learned Counsel for the appellant may be taken together with it. It is undoubtedly true that Section 14 of the Inams Abolition Act ousts the jurisdiction of the Civil Court to set aside or modify any decision of the Tahsildar, the Revenue Court or the Collector under that Act unless the decision has been obtained by misrepresentation, fraud or collusion of parties. Hence if there was, in fact, any decision of the Tahsildar under Section 3 of that Act holding the land as inam, the decision could not have been varied by the Civil Court. But as has been rightly found by the learned Single Judge, no such decision of the Tahsildar was ever placed in evidence and that too in spite of the objection taken in that regard by the respondents. The question before the Civil Court was hence not setting aside or modifying any decision of the Tahsildar regarding determination of any land as inam. The question before the Civil Court was hence not setting aside or modifying any decision of the Tahsildar regarding determination of any land as inam. The appellant-defendant did not take any steps to establish the inam character of the lands to have been decided. The jurisdiction of the Civil Court hence was not ousted to entertain the suit". 19. Reliance also was placed on the decision referred (4) supra wherein the Apex Court at paras 10 and 14 observed : "The principal question for determination in this appeal, therefore, is whether, in view of the special provisions of the Land Revenue Code, the present suit could be entertained by the Civil Court. It is beyond question that the Code lays down a special machinery for the realization of Government revenue which has been declared as the paramount charge on the property. It lays down a summary procedure for the realization of public revenue, and all questions coming within the purview of the Code, must be determined according to the procedure laid down in that Code. Hence, in so far as the Code has laid down specific rules of procedure, those rules and no others, must apply in the determination of all controversies coming strictly within the terms of the statute. One thing is absolutely clear, namely, that the Code does not lay down any specific rules in respect of property which has been placed in custodia legis. The Code contemplates regular payment of Government revenue by the owner, possessor or the occupant of the property in respect of which Government revenue is payable. It also takes notice of devolution of interest by transfer or succession, but it does not contemplate the inter-position of a Receiver in respect of the property subject to the payment of Government revenue. This aspect of the matter becomes important because the only point for determination in this appeal, is whether the auction-sale held under the Code, without the leave of the Court or without notice to the Receiver appointed by the Court, should affect the interest which the Bombay High Court had, by appointing the Receiver, sought to protect, if the sale in favour of the appellant stands. The mortgagee's security for the payment of the mortgage-debt, in the event of the auction-sale being sustained, is to that extent adversely affected without his having any voice in the matter. The mortgagee's security for the payment of the mortgage-debt, in the event of the auction-sale being sustained, is to that extent adversely affected without his having any voice in the matter. Perhaps, if the Receiver were not there, the mortgagee may have been more vigilant and may have taken timely steps to pay the Government demand in respect of the property if only for conserving it for satisfying his own dues on the mortgage. It has been strenuously argued on behalf of the appellant that the present suit cannot be maintained in view of the provisions of the Code, particularly, Sections 157 and 192 which we now proceed to examine. Section 157 is in these terms: "157.(1) If no application under Section 156 is made within the time allowed therefor, all claims on the ground of irregularity or mistake shall be barred. (2) Nothing in sub-section (1) shall bar the institution of a suit in the Civil Court to set aside a sale on the ground of fraud or on the ground that the arrear for which the property is sold was not due". This Section makes reference to proceedings under the previous Section 156. Section 156 contemplates an application for setting aside the sale "on the ground of some material irregularity or mistake in publishing or conducting it", at the instance of a person "whose interests are affected by the sale". Assuming that in the instant case, the Receiver is a person whose interest can be said to have been affected by the sale, the ground on which he could have moved the Revenue authorities for setting aside the sale, was limited to material irregularity or mistake in publishing or conducting the sale. This provision proceeds on the assumption that the necessary parties have been apprised of the proceedings relating to the realization of Government revenue. It assumes that the proceedings have been properly taken, but there may have been some material irregularity or mistake at a later stage of the proceedings, namely, in publishing or conducting the sale. It is clear that the ground on which the present suit is based, would not be covered by the crucial words quoted above, on which alone Section 156 could be availed of. It is clear that the ground on which the present suit is based, would not be covered by the crucial words quoted above, on which alone Section 156 could be availed of. "Publishing" the sale has reference to that part of the proceedings which relates to the sale proclamation, and "conducting" the sale has reference to acts or omissions, at a still later stage, of some officer or public authority who is entrusted with holding the sale. It is clear, therefore, that the provisions of Section 156 are out of the way of the plaintiff in this suit. So also are the provisions of Section 155 which relate to an application for setting aside a sale on deposit of arrears within 30 days from the date of the sale. An application under Section 155 can only be made by a person "either owning such property or holding an interest therein by virtue of a title acquired before such sale". A Receiver appointed under O.40 of the Code of Civil Procedure, unlike a Receiver appointed under the Insolvency Act, does not own the property or hold any interest therein by virtue of a title. He is only the agent of the Court for the safe custody and management of the property during the time that the Court exercises jurisdiction over the litigation in respect of the property. Section 157(1) of the Code, which positively bars a suit, is in express terms, confined to "all claims on the irregularity or mistake". It does not cover grounds other than those - for example if a sale is attacked on the ground that the owner of the property was dead at the date of the sale, or that there had been some fraud in connection with the sale proceedings, or that he had been kept out of his remedy under the Code by some fraudulent act, or that there was really no arrear due in respect of the property sold, or such allied grounds - suits based on grounds like these, would not be within the prohibition of Section 157(1). Section 157(2) specifically saves certain suits of the kind referred to therein, but it does not necessarily follow that suits not directly within the terms of sub- section (2) of Section 157, are covered by the provisions of the positive bar laid down by Section 157(1). Section 157(2) specifically saves certain suits of the kind referred to therein, but it does not necessarily follow that suits not directly within the terms of sub- section (2) of Section 157, are covered by the provisions of the positive bar laid down by Section 157(1). There may be tertium quid between the grounds covered by Section 157(1) and Section 157(2). It is clear that the present suit is not covered either by the terms of Section 157(1) or those of Section 157(2). As already indicated, the position emerging in the present controversy, is not covered by the express provisions of Section 157. ...... .... For the reasons given above, we agree with the High Court in its conclusion that the auction sale impugned in this case, was illegal, and that the suit was not barred by the provisions of the Code. The appeal is, accordingly, dismissed with costs to the Receiver who alone has contested the appeal". 20. Further, strong reliance was placed on the decision referred (2) supra wherein the Division Bench at paras 16 and 17 observed : "The trial Court had taken note of the fact that no enquiry was held under the Inams Abolition Act for determination of the nature of the suit land and for consequent abolition of the inam and conferment of a ryotwari tenure. Under Section 4 of the Inams Abolition Act, the entitlement to a ryotwari patta in the case of an inam land had arisen on the date of commencement of the Act. The special Bench in Bujjanna's case (1980(1) A.L.T. 107) while rejecting the contention that on the commencement of the Act, the imams stood abolished, observed : "The expression 'on the date of commencement of the Act' only determines the person or institution in possession of the inam land on that date who is entitled to get a ryotwari patta. The right to get a patta cannot be equated to the grant of a patta. The person or institution declared entitled to the ryotwari patta under Section 4 of the Act has to work out his rights in accordance with the procedure laid down by the Act and obtain a ryotwari patta". The right to get a patta cannot be equated to the grant of a patta. The person or institution declared entitled to the ryotwari patta under Section 4 of the Act has to work out his rights in accordance with the procedure laid down by the Act and obtain a ryotwari patta". Therefore, even if the contention of Sri M.L. Narasimham, learned Counsel for the appellants, that the nature and character of the suit land itself was in dispute was to be accepted, the result would be that the Tirumala Tirupati Devasthanams would continue to be the inamdar entitled to possession until a ryotwari patta was issued. As it was not the case of the appellants herein that the suit land was either an inam land or they were the tenants, the Tirumala Tirupathi Devasthanams, as an institution holding the inam land on the date of commencement of the Inams Abolition Act, would have obtained a ryotwari patta under Section 4(1). As an inamdar, the Tirumala Tirupati Devasthanams would be entitled to protect and safeguard their possession and that is what they did by filing O.S.No.146 of 1987 when appellant No.1 herein claimed to be the owner of the suit land and appellants 2 to 6 herein, lessees of the suit land through the first appellant, put up constructions. The reliefs of permanent injunction, delivery of vacant possession, damages for use and occupation and declaration of title are all matters which are totally outside the purview of the statutory functionaries under the Inams Abolition Act. Same is the situation with regard to the reliefs sought in O.S.No.4 of 1987 filed by appellants 2 to 6 - interfering with the suit property and mandatory injunction directing the Tirumala Tirupathi Devasthanams and their officers to remove all articles and structures from the suit land. These reliefs are clearly beyond the purview of the statutory functionaries under the Inams Abolition Act. In respect of imams, the prohibition contained in Section 14 of the Inams Abolition Act is not total. It is confined only "to set aside or modify any decision of the Tahsildar, the Revenue Court or the Collector under this Act except where such decision is obtained by misrepresentation, fraud or collusion of parties". In respect of imams, the prohibition contained in Section 14 of the Inams Abolition Act is not total. It is confined only "to set aside or modify any decision of the Tahsildar, the Revenue Court or the Collector under this Act except where such decision is obtained by misrepresentation, fraud or collusion of parties". Thus it is clear that only when the decision rendered by a statutory authority under the Inams Abolition Act - the Tahsildar, the Revenue Court or the Collector - is sought to be challenged, the bar comes into play. Even in such cases, the exceptions provided are where the decisions of the statutory authorities were obtained by misrepresentation, fraud or collusion of parties." 21. On a careful analysis of the relevant provisions of the Act, Sections 8 and 14 of the Act in particular, and also in the light of the decisions specified above, inasmuch as the dispute is between the parties claiming to be tenants, the plaintiff claiming occupancy rights by virtue of permanent tenancy claiming through Mokhasadars on the ground that certain of the defendants interfered claiming to be the alleged tenants, there cannot be any doubt whatsoever that there is cause of action to file a suit for the relief of perpetual injunction. As far as granting of the relief of perpetual injunction is concerned, in the light of the concurrent findings recorded on the factum of possession by both the Court of first instance and also the appellate Court, there cannot be any doubt whatsoever that such concurrent findings relating a question of fact normally not to be disturbed in a Second Appeal and hence the relief of perpetual injunction granted by the Courts below cannot be found fault in any way by this Court in the present Second Appeal. 22. Yet another Point which had been argued in elaboration is that in the absence of Mokhasadars or Inamdars/owners being made as parties, the declaratory relief as prayed for could not have been granted by the Civil Court. The bar or prohibition ordained by Section 14 of the Act specified above is not a total bar and unless the language employed in the said provision can be made applicable, it cannot be said that the jurisdiction of the Civil Court is totally ousted or barred. It is no doubt true that the Mokhasadars could have been added as parties as proper parties. It is no doubt true that the Mokhasadars could have been added as parties as proper parties. But in the peculiar facts and circumstances, it cannot be said that they are necessary parties in the light of the factual controversy since those parties from whom the plaintiff is claiming the rights, are not disputing the rights of the plaintiff. In fact, the evidence of P.W.2 is available on record in this regard. Hence, it cannot be said that because of such non-joinder, the relief of declaration granted in favour of the plaintiff to be negatived. Hence, viewed from any angle, especially in the light of the findings recorded by both the Court of first instance and also the appellate Court, this Court is thoroughly satisfied that the said findings cannot be found fault and the Second Appeal being devoid of merit, the same is liable to be dismissed and accordingly it is hereby dismissed. But however, in the peculiar facts of the case, the parties to bear their own costs.