HUMAYAUN RAZA CHOUDHURY Vs. MOHAMMAD ISMAIL CHOUDHURY

JUDGEMENT

(1.) This is a rule directed against the decision of the Subordinate Judge of the Santal Parganas on what in fact was a preliminary issue in an action which was brought before him. It would appear that the action purported to be one in which the plaintiffs claimed that the Record of Rights was wrong and that in the record their names should have been recorded as mutwallis of certain properties. The position appears to be this. There were two brothers who were mutwallis during their lifetime. They died after the final publication of the record. The heirs or legal representatives of one are represented by the plaintiffs in the action, and the heirs or legal representatives of the other are represented by the defendants in the action. The record stood in the names of Sajjad and Zohad, the two brothers, and the record as it now stands in the form in which I have stated neither supports the plaintiffs case nor that of the defendants.

(2.) It appears however that the plaintiffs being the legal representatives of Zohad (the brother who died last), claimed to have the exclusive rights as mutwallis. The two brothers, I should have stated, were entered in the record as the sixteen annas patnidars and it will be seen from what I have stated that the contesting parties claimed each an eight annas interest in this patni. It should be stated that there are a number of properties, but the ones with which we are concerned are Tauji Nos. 110-3 and 111. The other properties in the suit are Tauji Nos. 110-1, 110-2, 110-4, 110-5 and 110- R. As regards these latter properties no question arises as the learned Judge of the lower Court proposes to try the issues relating to them on the basis that the plaintiffs are proprietors or zamindars within the meaning of Section 25(a) of the Regulation, and therefore it cannot be said that his jurisdiction is ousted by reason of the other provisions of the Regulation to which I shall in a moment refer.

(3.) It is said however as regards Nos. 110-3 and 111, that as the plaintiffs are merely patnidars and not zamindars or proprietors, there is no jurisdiction in the Civil Court and the Subordinate Judge has decided accordingly. If the matter had rested there, it would be impossible for this Court even to consider the question of its revisional powers, as the Judge in the Court below had jurisdiction to decide a question of law and he has decided it: whether he is right or wrong is another matter entirely. But it is said by Sir Sultan Ahmed who appears on behalf of the petitioners that the jurisdiction of the Civil Court is not ousted by the Regulation to which I have referred, that is, Regn. 3 of 1875. It is necessary to state one or two facts in order to appreciate the arguments advanced by the advocate on behalf of the petitioners and the advocate on behalf of the respondents. I have stated how the record stood at the final publication and the matter stands in the same way at this moment.