JWALA PRASAD Vs. PRAG NARAIN

JUDGEMENT

(1.) This appeal raises a point of law under the Bundelkhand Land Alienation Act. A decree had been passed against Jwala Prasad, one of the plaintiffs, on a mortgage in favour of the defendants Prag Narauvand Beni Prasad. The decree is not before us but it appears that it was transferred to the Collector, under Section 17 of the Act, inasmuch as the mortgagees were not members of an agricultural tribe. The first plaintiff Jwala Prasad was owner of an undivided share in a 5 anna 4 pie patti. The rents of the entire patti were collected by the lambardar who, as it happend, was at that time Jwala Prasad himself. The share mortgaged was a 10 pie undivided share out of this patti. The Collector, purporting to act under the provisions of Section 6 of the Act, selected certain specific plots, which he considered to be the equivalent of a 10 pie share, and gave the defendants a usufructuary mortgage of these plots for a term of 20 years. The present suit was brought by Jwala Prasad and the two other co-sharers in the patti, Sukhnandan and Sheo Dayal, for a declaration that the mortgage executed by the Collector, so far as it purported to transfer possession of specific plots and to give the mortgagees the right either to cultivate these plots or to collect the rents of them, was ultra vires. The suit has been decreed by the courts below. The defendants appealed to this Court on two grounds: (1) That the mortgage was within the powers vested in the Collector by the Act. (2) That the civil court is precluded by Section 22 of the Act from entertaining the present suit.

(2.) Two of the plots in suit, Nos. 19 and 195, were in the actual possession of Jwala Prasad as khudkasht. The first court dismissed the suit as regards these plots. We are unable to appreciate the reasons which led the learned District Judge, on a cross-objection by the plaintiffs, to set aside this portion of the trial court's decree. It seems to us that it was perfectly open to the Collector to transfer to the mortgagees the possession of lands which were in the actual possession of the mortgagor.

(3.) Section 22 of the Act lays down that no civil court shall take cognisance of the manner in which the Local Government or any Revenue Officer exercises any powers vested in it or in him by or under this Act. The appellant treats this as meaning that the civil courts have no jurisdiction to question anything done by the Collector which purports to be done under the Act. The lower courts have met the objection by holding, first, that what was done in this case was in excess of the powers conferred by the Act, and, secondly, that it is clearly open to third parties, whose interests are affected, to challenge the validity of a mortgage which interferes with their rights. In this case the second and third defendants were no parties to the proceedings before the Collector in the course of which the mortgage was executed.