RAM ROOP Vs. BISHWA NATH

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution read with Section 115 of the Code of Civil Procedure.

(2.) On 29th February 1952, the opposite parties filed a suit in the Court of the Munsif of Mirzapur claiming possession over the plots mentioned in the plaint. The allegations with which the opposite parties came were these: The land in dispute was lying parti before 1356F. There were many self-grown trees on it On 26th February 1949, the zamindar of the village granted a patta in respect of the land in favour of the opposite parties and they entered into possession of the same. They themselves planted some trees on the land also. Having deposited ten times the rent they obtained a Bhumidhari Sanad in respect of the land. When they started building constructions on it, the fact was resented by the petitioners who in collusion with the patwari had got the land entered in the papers in their own names. With the object of making the opposite parties give up the land the petitioners started litigation in respect of it and at first launched criminal proceedings. The opposite parties then filed a suit in the revenue Court under Section 59 of the Tenancy Act claiming a declaration that they were the tenants of the land. The suit was decreed by the trial Court but was dismissed on appeal on the ground that as the opposite parties who befere the plaintiffs were not in actual possession they could not be granted a declaration in view of the proviso to Section 42 of the Specific Relief Act. The suit out of which the present application has arisen was then filed in the Munsifs Court and the opposite parties claimed possesion over the land. The petitioners who were the defendants contested the suit on various grounds. They pleaded inter alia that the land in dispute was really a grove of which they had been in possession for the last 32 years and they had also their constructions on it. They also pleaded that the suit was not triable by the civil Court and that it was barred by limitation. The munsif framed several issues in the case, one of them being whether the suit was not cognizable by the civil Court. He took up this issue as a preliminary issue and decided it in the negative. He then fixed a date for the hearing and disposal of the other issues in the case. The petitioners then filed the present application and prayed that the order of the learned Munsif be set aside as the view taken by him on the question of jurisdiction was erroneous. The petition came up before Mr. Justice V.D. Bhargava and it was urged on behalf of the opposite parties that the decision was on a preliminary issue framed in the case and as no case had been decided no application under Section 115 was entertainable. They also urged that in the circumstances of the case the relief prayed for by the petitioners could not be granted to them even under Article 227 of the Constitution. In support of (sic) Buddhoo Lal v. Mewa Sam, 19 All LJ 558: (AIR 1921 All 1) (FB) (A), which had been approved by a Full Bench of this Court in Ram Richpal Singh v. Daya Nand Sarup, (S) AIR 1955 All 309 (B). In support of the latter contention reliance was placed on the cases reported in Har Saran Dass v. Mukandi Lal, AIR 1951 All 514 (C), and the State of Uttar Pradesh v. Abdul Aziz, AIR 1955 All 673 (D). The learned counsel for the petitioner conceded that as the case had not been finally decided the impugned order could not be revised under Section 115 of the Code of Civil Procedure. He strenuously urged however that as the Munsif had really no jurisdiction to try the suit and had assumed a jurisdiction not vested in him this Court should interfere under Article 227 of the Constitution and quash his order. The learned counsel questioned (he correctness of the two decisions relating to the scope of Article 227 relied upon by the opposite parties and pointed out that the decisions were not in consonance with a series of decisions of this Court beginning with the Full Bench case of Tej Ram v. Harsukh, ILR 1 All 101 (E), and ending with Firm Stint Lal Mahadeo Prasad v. Kedar Nath, AIR 1935 All 519 (F). Mr. Justice Bhargava felt that "as the point is of frequent occurrence and the Courts often decide the question of jurisdiction as a preliminary issue an authoritative pronouncement of at least a Bench of two Judges or a Full Bench is necessary on the question that if only the issue of jurisdiction of the Court is decided whether this Court should under its powers under Article 227 of the Constitution interfere if the decision of the Court below seems to be incorrect". The case has come up before us for decision as a result of his reference.

(3.) The first clause of Article 227 of the Constitution confers on every High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. If the history of this matter is looked into it will be found that this power of superintendence was conferred first on the High Courts established in the Presidency Towns of India by Section 15 of the Indian High Courts Act, also known as Charter Act, passed by the Parliament in 1861 (24 & 25 Vic. C. 104). The opening words of Section 15 are "Each of the High Courts established under this Act shall have superintendence over all Courts which may be subject to its appellate jurisdiction.'' In the Civil Procedure Code of 1859 which was in force at that time there was no provision for the exercise of a reyisional power by the High Courts. By Section 35 of Act 23 of 1861 the Sudder Courts were empowered "to call for the records of any case decided in appeal by a subordinate Court in which no further appeal lay when the subordinate Court appeared to have exercised a jurisdiction not vested in it." In the Code which was enacted in 1877, provision was made for the first time for the exercise of revisional powers in Section 622 of the Code. Under that section, however, the revisional powers could be exercised only if the subordinate Court appeared to have exercised jurisdiction, not vested in it or to have failed to exercise a jurisdiction so vested in it. There was no provision in the section eorresponding to the present Clause (c) of Section 115 of the Code of Civil Procedure of 1908. When the Government of India Act of 1915 was enacted, Section 107 of that Act conferred on all High Courts the power of superintendence over all subordinate Courts. A question then arose whether the power of superintendence conferred by that section included judicial superintendence or was confined to administrative superintendence only. The term superintendence was interpreted by the Courts to include both administrative and judicial superintendence and the provision was therefore utilised when a proper case arose for revising those orders which were not found to be covered by Section 115 of the Code of Civil Procedure or Section 439 of the Code of Criminal Procedure. In 1935, the Government of India Act, 1915 was replaced by the Government of India Act, 1935. Section 224 of the new Act took the place of Section 107 of the Old Act with this difference that Sub-section (2) of Section 224 clearly provided "nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to an appeal or revision". Thus the judicial superintendence which the High Court exercised under Section 107 of the Old Act was expressly taken away, (See Bal Krishna v. Emperor, AIR 1933 Bom 1 (SB) (G)). Article 227 of the Constitution has been enacted in place of Section 224 of the Government of India Act of 1935. But it is noticeable that there is no provision in it corresponding to subsection (2) of Section 224 of the Act of 1935. When a question was raised whether the superintendence referred to in Article 227 included judicial superintendence it was answered in the affirmative. Thus, in the case of Waryam Singh v. Amar Nath, AIR 1954 SC 215 (H), it was laid down