SRI RAJAH SOBHANDARI APPARAO BAHADUR ZEMINDAR GARU Vs. DATHADU VENKATARAJU (DIED) 1 AND 2 GURRAJU AND KOTAMRAJU SONS

JUDGEMENT

(1.) The 3rd plaintiff is the appellant, he being the Zemindar of Nuzvid. The defendants in these suits claimed to hold what are called " Banjar " lands as parts of their respective jeroyiti holdings. The plaintiff s case is that these banjar lands are not parts of these defendants jeroyiti holdings but had been in their occupation on temporary grazing leases, and that on the date of the suits the defendants were in possession as mere trespassers. The suits were brought on the strength of Section 103 of the Estates Land Act (Act I of 1908) in the Civil Court.

(2.) Both the lower Courts found as a matter of fact that these banjar lands were jeroyiti lands, that they were treated by the Zemindar from time immemorial as parts of the respective holdings of the defendants which contained other lands admitted to be jeroyiti and that the defendants were not trespassers. But the plaintiff argued that by reason of the decisions in certain prior suits brought by the plaintiff (or, rather the person who then represented the interests of the plaintiff) for the enforcement of pattas for a former fasli, the question whether the defendants were entitled to hold these particular lands as ryots must be decided against them as res judicata. For this contention the language of Section 189 Clause 3 of the Estates Land Act is relied on. It is admitted that the matter is not res judicata. Clause Section 11 of the Civil Procedure Code, or if the principle embodied in Section 11 can alone be relied upon in argument because the present suits in ejectment are not cognizable by the Revenue Court which tried the former suits. Hence the appellant was constrained to rely in support of his argument upon what he contended was the true meaning of Section 189(3) of the Estates Land Act.

(3.) Now, where Revenue Courts and Civil Courts are thus exercising jurisdiction in dispute between the same parties (one kind of Court in certain matters and the other kind in some other matters) it is desirable that the Legislature clearly sets out in detail the particular matters over which each set of Courts is intended to have jurisdiction and also provides clearly and definitely what has to be done when conflicts arise between the opinions of the two sets of Courts on the same question vhen they are dealing with the separate matters within their respective jurisdictions. I shall just quote a few passages from the judgment of Sheo Narain Rat v. Parmeshar Rai (1896) I.L.R. 18 All. 270 at p. 277. (F.B.) (such conflicts having apparently arisen in the United Provinces frequently). " As it is not conceivable that the Legislature could have intended that there should be of its own creation two sets of Courts in these provinces each having jurisdiction to determine the same questions of title to land let to agricultural tenants and neither having any power to compel the other to accept its decision by revision or other procedure or by process, we must assume that in all cases in which it is clear that for the purposes of adjudicating upon an application or making a decree in a suit, it was the intention of the Legislature that the decision on the question of title of the Court which was given the exclusive jurisdiction to entertain the application or the suit should subject to such rights of appeal as was allowed by the statute be final between the parties unless the contrary intention was expressed." Then in another part of the judgment (at page 280) the learned Judges say "It may be inferred from a long series of decisions... that the opinion was entertained by all the Judges who in these Provinces or in the Lower Provinces of Bengal have considered the question that questions of proprietary title to land and of title to tenancies between rival claimants, but not questions as to the status of a tenant of agricultural land, are questions which should be determined by the Civil Courts and not by the Courts of Revenue in the more or less summary proceedings of the latter Courts." Then they consider the particular provisions of the Act which had to be considered in that case and arrive at the conclusion that on a particular point, the decision of the Revenue Courts should be treated as final. The defficul-ties which the learned Judges felt in arriving at their conclusion are indicated by other passages in the judgment (at page 275) as follows :--"It frequently happens that a Court of Revenue and a Civil Court come to different conclusions on the same question of title litigated between the same parties in reference to the same lands. In such case which decision is to prevail? Is that decision to prevail which was first given, or is that decision to prevail which was given in the proceeding or suit first instituled or is the time of one of such Courts to be taken up in arriving at a decision which when pronounced will not be binding on the other Court and will be for all practical purposes a brutum fulmen? How is such decision to be enforced ? It is clear that, unless a question of title arising in proceedings in ejectment under Act No. XII of 1881 had been determined the parties by a reference to a Civil Court under Section 204 of that Act or in a suit instituted in accordance with an order of a Court of Revenue made under Section 208 A of that Act, the Court of Revenue would not be bound by the finding as to title of a Civil Court. The decision of an issue as to title by a Civil Court would not operate as res judicata under Section 13 of Act No. XIV of 1882 as to the same question of title in proceedings under Sections 36 and 39 of Act No. XII of 1881, although between the same parties and relating to the same land ; and similarly a decision of a Court of Revenue under Section 39 of Act No. XII of 1881 adverse to the application under that section contesting the liability of the person upon whom a notice of ejectment had been served would not operate as res judicata under Section 13 of Act No. XIV of 1882 in a suit of ejectment in a Civil Court between the same parties, the Court of Revenue not having jurisdiction to try a suit to eject a trespasser and a Civil Court not having jurisdiction to try an application under Section 39 of Act No. XII of 1881 contesting liability to ejectment." At page 273, they say " This is one of that class of cases which exemplifies the mischief which arises when the jurisdiction of Courts created by the Legislature is not plainly and explicitly and sharply defined. That mischief is intensified when, as in these provinces, there are two sets of Courts, the Courts of Revenue and the Civil Courts, each having in some matters exclusive jurisdiction, whilst as to other matters the question as to which of such Courts has exclusive jurisdiction depends, not upon plain and explicit leaguage of the legislature but upon inferences to be drawn from a painstaking examination of a variety of sections in an Act and upon general principles of jurisprudence upon which it is assumed that the legislature has acted."