BHAGWAN DAT Vs. JOKHAN

JUDGEMENT

(1.) This is a reference by the Munsif, North, Sultanpur, under Section 289, U. P. Tenancy Act. The proceedings before the learned Munsif arose out of an application for redemption of a mortgage made under Section 12, Agriculturists' Relief Act to the Sub-Divisional Officer, Kadipur. The parties were at issue 'inter alia' on two questions: 1. Whether the mortgagors are under proprietors of the land in suit.

(2.) Are the opposite-parties Nos. 1, 2 and 7 estopped from denying the applicants' title as under-proprietors. The pleas which formed the basis of the aforesaid issues related to proprietary rights in the properties covered by the mortgage and the Sub-Divisional Officer purporting apparently to act under Section 286, U. P. Tenancy Act, submitted the record to the Court of the learned Munsif for determination of the controversy. In the statement of reasons which necessitated the reference to the High Court, it is said that Section 286, Tenancy Act did not apply to proceedings for redemption under the Agriculturists' Relief Act and that the remittance to the Civil Court of the issues relating to proprietary rights was unauthorised inasmuch as the jurisdiction which the Collectors or the Assistant Collectors exercise in redemption proceedings is not that of a Revenue Court which alone is competent to send to the Civil Courts for decisions an issue relating to such matters arising in pending suits or proceedings. The question submitted to this Court by the learned Munsif is formulated thus : "When an application under Section 12, Act XXVII of 1934 is instituted in the Court of the Collector under Section 10 of the said Act, and a question regarding proprietary title arises in that proceeding, has that question to be decided by the Collector, or is the Collector competent to remit an issue or issues regarding proprietary title to the Civil Court and is it mandatory for the Civil Court to give a finding or findings on the issue or issues so remitted." 2. On this reference coming before me, the learned gentlemen at the Bar who represent the parties frankly agreed that Section 286, U.P. Tenancy Act has no application to redemption proceedings, that the Assistant Collector was bound under the law to decide for himself all points which arise for determination before him and that the procedure adopted by him in remitting the two issues to the Civil Court was unwarranted. That indeed is the true legal position on a plain reading of the provisions embodied in Section 286, U. P. Tenancy Act. The section lays down: " 'Procedure when plea of proprietary right raised' 1. In any suit or proceeding in a revenue Court a question of proprietary right in respect of the land which forms the subject-matter of the suit or proceedings is raised, and such question has not previously been determined by a Court of competent jurisdiction, the revenue Court shall frame an issue on the question of proprietary right and submit the record to the competent civil Court for the decision of that issue only : 'Explanation I--A plea of proprietary right which is clearly untenable and intended solely to oust the jurisdiction of the revenue Courts shall not be deemed to raise a question of proprietary right within the meaning of this section. 'Explanation II'--A question of proprietary right does not include the question whether land is sir or khudkasht. 2. The civil Court, after re-framing the issue, if necessary, shall decide such issue only and return the record together with its finding thereon to the revenue Court which submitted it.

(3.) The revenue Court shall then proceed to decide the suit, accepting the finding of the civil Court on the issue referred to it.