NATHU Vs. DILBANDE HUSSAIN

JUDGEMENT

(1.) THIS is a reference by the first Civil Judge, Second Class, Indore, under Order 46, Rule 1, Civil Procedure Code for deciding the question whether if a Bhumiswami is dispossessed of any land held by him as Bhumiswami otherwise than in due course of law, he can file a suit under Section 9 of the Specific Relief Act, 1877, (hereinafter referred to as the Act), for recovering possession of the land.

(2.) THE reference arises out of a suit filed by one Nathu under Section 9 of the Act against Dilbande Hussain and three other persons for possession of certain land on the allegations that he was in possession of the land in suit as Bhumiswami and that the defendant had dispossessed him without any right otherwise than in due course of law. The defendants, while admitting that the plaintiff is recorded as a bhumiswami of the disputed land, raised the objection that under Section 250 of the Madhya Pradesh Land Revenue Code, 1959, (hereinafter referred to as the code), read with Section 267 (x) thereof, the civil court had no jurisdiction to entertain the plaintiff's suit for restoration of possession of the land. The learned trial Judge found himself unable to decide the question because of divergent views expressed by this Court on the question in Kittu Paramlal v. Jamnaprasad. 1962 mplj 738, Santprasad v. Jawaharsingh 1963 MPLJ (SN) 45: SA No. 203 of 1962 d/-3-11-1962, Phattelal v. Nandlal 1963 MPLJ 292 and Himmatsingh v. Pratapsingh 1963 Jab LJ 72. He, therefore, thought it fit to refer the question for decision to this Court under Order 46, Rule 1 C. P C. In view of the conflicting decisions noted above, all of the learned Single Judges of this Court. Tare J. , before whom the reference first came up for hearing, made a direction that the reference should be heard by a larger Bench Accordingly the matter has come before us for decision At the time of the hearing of the reference, the parties in the case did not appear before us and we did not have the benefit of hearing the arguments of learned counsel who appeared for them before Tare J. As the question raised in this reference is involved also in some other cases pending in this court, we requested Sarvashri S. C. Dube. G. P Singh, M. P. Shrivastava and r. K. Tankha. learned counsel appearing in those cases, to appear in this case as amicus curiae. We are indebted to them for their helpful arguments.

(3.) THE question for determination in this reference is whether Section 250 of the code read with Section 257 (x) thereof bars the jurisdiction of a civil court to entertain a suit under Section 9 of the Specific Relief Act for recovery of possession of an agricultural land from which a Bhumiswami has been dispossessed otherwise them in due course of law. Section 250, in so far as it is material here, runs as follows: