(SHREE SHREE) NARAYAN THAKUR Vs. KAMALRANI DEBI

JUDGEMENT

(1.) This rule is directed against the order of the Subordinate Judge made under a reference by the Land Registration Deputy Collector to the Civil Court and purporting to be made under Section 55 of the Act. The contention of Mr. De, with whom appears Mr. Banarji, on behalf of the objector in those proceedings and the petitioner before me in support of the rule, is that the order of the Land Registration Deputy Collector is entirely without jurisdiction. This point depends upon the construction of the sections of the Land Registration Act, more particularly Secs.52 to 55. The effect of those sections is that when an application is made for registration of a name under the Land Registration Act a notice, which is a general notice, is issued by the Collector, and on the day mentioned in that notice the Collector or his Deputy proceeds to consider the objections to the application. It is quite clear from the Act and perhaps even clearer from certain authorities particularly the decision in Umatul Mehdi V/s. Kulsum (1908) 35 Cal 120 that the officer deciding such matter has to investigate into the possession of either the applicant applying for his or her name to be registered or the objector. It is unnecessary to enter into various details which the Collector might have to consider, such as whether the applicant or the objector is in possession by reason of succession or otherwise, and it will suffice to state that the only question that the Court has to consider is the question of possession. The most important section for the purposes of this argument is Section 55 which contemplates a consideration of the question to which I have referred and also the possibility of the Land Registration Court being unable to come to any conclusion as to the matter in hand, viz., the question of possession. Having arrived at that stage the section proceeds to state: The Collector shall determine summarily the right to possession of the same, and shall deliver possession accordingly, and shall make the necessary entry in the registers.

(2.) Now the words preceding the ones I have just read are: and if it is not proved to the satisfaction of the Collector that any person is in possession of the interest in dispute.

(3.) Now it is the contention of the petitioner before me that in this case the condition precedent to a reference to the Civil Court does not exist. I should have stated before making that observation that the sub-paragraph of the fifty-fifth section part of which 1 have read, provides for the dispute to be sent to and determined by a civil Court in the event of the Collector finding that the matter is one which can be hotter determined by that Court. As I was stating, the contention is that the condition precedent for this reference to the civil Court does not exist. What happened was that the first Land Registration Court came to the conclusion that the applicant was in possession and made order accordingly. Then the Deputy Collector with appellate powers came, on appeal, to a somewhat different conclusion and was of opinion that the applicant was not in possession. I must say in advance that after reading the order of the Deputy Collector it is difficult to say that he expressly found that nobody was in possession, or to put it more accurately, that he was not satisfied that any person was in possession within the meaning of Section 55. But he does state specifically that he is not satisfied with the evidence of the applicant and he would have proceeded to determine summarily the question of the right to possession had it not been that he was of the opinion that that matter would be better determined by a civil Court, and accordingly he made the reference. Now, as I have stated, Mr. De and Mr. Banarji, appearing on behalf of the petitioner, have both contended that not having come to any specific finding that possession was not found either with the applicant or the objector, the order of the Land Registration Deputy Collector was without jurisdiction, and, if that order was without jurisdiction, the order of the Subordinate Judge was also without jurisdiction. Had 1 been forced to come to a conclusion on the matter, I certainly should have been inclined to hold that by reason of Section 62 of the Act I am powerless so far as this order of the Subordinate Judge is concerned. The words of the latter part of Section 62 seem to me to be exhaustive. Referring to the order of the civil Court the section says it shall be final not subject to any appeal or order for review. There may be a different view held in some High Courts, but I am content in this case leaving the matter there as in the circumstances it is quite unnecessary for me to determine that point.