BANTA AND ANR. Vs. UDHAM KAUR

JUDGEMENT

(1.) UDHAM Kaur who died during the pendency of the present appeal was the widow of Hazara, the brother of Banta and Jagta Appellants. In September, 1957, she instituted proceedings in the revenue Courts for partition of one -third share of her husband to which she claimed to have succeeded on his death. Banta and Jagta raised the plea of her having forfeited her rights by virtue of her having entered into a karewa marriage with Jagta. The Assistant Collector passed an order on 12th March, 1958 saying that since a question of title had arisen the matter would have to be decided by civil Courts. He himself decided to act as a civil Court under the provisions contained in Section 117 of the Punjab Land Revenue Act and directed that the plaint should be instituted within 15 days. On 26th March, 1958, another order was passed in the presence of counsel for both the parties. It is stated in the order that it was well -known to party No. 1 that in accordance with the decision in Ramji Lal v. Rimla and Anr., 1958 L.L.T. 13, the Revenue Officer had no jurisdiction to fix any period for the filing of such a suit nor could the parties be compelled to file a civil suit. As none of the parties had instituted a civil suit in his Court in accordance with the previous order, the Assistant Collector directed that the application (for partition) should be consigned to the record.

(2.) UDHAM Kaur did not institute any plaint before the Assistant Collector but ultimately filed a suit in the civil Courts for a declaration to the effect that she was the owner of one -third share of the land in dispute. The suit was resisted by the brothers of her husband, the present Appellants, who raised the plea that she had forfeited all her rights on account of her remarriage with Jagta. In the written statement the Appellants did not raise the plea that the suit was not entertainable by the civil Courts owing to the previous order made by the Revenue Court constituting itself as a civil Court and directing that the question of title be got decided by that Court. On the other pleas that were raised certain issues were framed, the main point of controversy being the question of the remarriage of Udham Kaur. The trial Court came to the conclusion that no such remarriage had been proved and after giving the findings on the other issues, the suit was decreed. Before the lower appellate Court the question about the jurisdiction of the civil Courts to entertain and decide the suit in the circumstances mentioned before was undoubtedly raised but it was decided against the Appellants. On the merits the lower appellate Court affirmed the decision of the trial Court, with the result that the decree was confirmed. This has led to the present appeal in this Court.

(3.) AS the question relating to the alleged remarriage of Udham Kaur with Jagta Appellant is one of fact, Mr. Sodhi, the learned Counsel for the Appellants, has very properly not sought to agitate the same before me. The only contention that has been seriously pressed by him relates to the question of jurisdiction of the civil Courts to entertain and decide the present suit after the revenue Court had made an order, as mentioned before, under Section 117 constituting itself a civil Court for the purpose of deciding the question of title. Apart from the provisions contained in Sections 117 and 158 of the Punjab Land Revenue Act, Mr. Sodhi has placed a good deal of reliance on a judgment of the Punjab Chief Court in Ghulam Muhammad and Anr. v. Muhammad Mansur Jan and Ors., 1902 P.L.R. 633. There one Feroz Din and others had applied for partition. Muhammad Ali and some other persons objected and raised a question of title before the Revenue Extra Assistant Commissioner. That officer made an order under Section 117 of the Land Revenue Act directing the objectors to file a declaratory suit on a Rs, 10 stamp before him within two months. This order was neglected by the Petitioners and instead they filed a suit in the District Court on 4th April, 1901, which was sent to Raja Jehan Dad Khan who on 11th May, 1901, passed an order that as a suit was already pending in the revenue Court which had been instituted first, he could not try the suit before him under section 12 of the Code of Civil Procedure and accordingly consigned it to the record -room. On appeal that order was confirmed by the learned Divisional Judge. Before Robertson, J., the contention raised was that as no plaint had been filed in the revenue Court, it was not seized of the case and there being no bar in Section 158 to the jurisdiction of the civil Courts, the Petitioner had a right to sue in a civil Court, or that if he had not, the revenue Court had no legal authority to proceed with the case, but should proceed with the partition. The first contention was rejected by the learned Judge after a reference to the provisions contained in Section 117. It was observed by him that when a revenue officer acting under the statutory authority of Section 117 had decided to try the case himself and had so directed, unless and until that order had been set aside, his Court, and no other Court, was competent to entertain and try the suit. A similar question, however, arose before the Lahore High Court also and the case which is very much in point is the decision of Jai,Lal, J., in Muhammad Ali and Anr. v. Wazir Ali, A.I.R. 1936 Lah. 589. There the facts were very similar to the facts in the present case because a direction was made by the revenue officer that the suit should be filed in his Court, which would be tried by his Court acting as a civil Court. Instead of instituting a suit in the Court of the revenue officer as directed by him by the order, the Appellants instituted a suit in the Court of a Subordinate Judge., The question at once arose whether in view of the previous decision of the Chief Court, which has been relied upon by Mr. Sodhi, before me, the civil Courts could or could not entertain and decide that suit. As pointed out by Jai Lal, J., the decision of the Chief Court was distinguished in Tirath Ram v. Nihal Devi, A.I.R. 1931 Lah. 664, by a Division Bench and it was held that a suit by an Applicant for partition would lie in the civil Court in spite of a direction by the revenue officer to file it in his Court to enable him to determine the question of title. In Sukhdeo Singh v. Mathra Singh A.I.R. 1933 Lah. 412, a direction was given by the revenue officer to institute a suit in his Court and the proceedings relating to partition were consigned to the record -room. The Plaintiffs, however, instituted a suit in the civil Court but in that suit he included property which was not the subject of application for partition. The learned Judges held that the jurisdiction of the civil Court to try the suit was not ousted. It may be that the facts in Sukhdeo Singh v. Mathra Singh, 1902 P.L.R. 638, were somewhat distinguishable but the case which was decided by Jai Lal, J., was very similar to the present case and if the decision given by him is correct, it must be followed with respect. The reasons which appealed to Jai Lal, J., were that Sub -section (2) of Section 158 was an independent Sub -section and was in no way controlled by Sub -section (1). Clause (xvii) of Sub -section (2) is as follows: