SOOSAI ODAYAR Vs. RSWAMINATHA AIYAR

JUDGEMENT

(1.) The question in this second appeal is whether the suit is barred by Section 189 of the Estates Land Act. The plaintiff sues for a declaration that he is the owner of both warams in items 1 and 2 of the immoveable properties mentioned in the plaint, that notice of attachment caused to be issued by the defendant of the said property under Section 112 of the Estates Land Act is illegal and for a permanent injunction restraining him from selling the said property. It was also alleged in the plaint that the defendant before instituting the proceedings under the Act had parted with his interest in the land and any proceeding thereafter by him was incompetent. The defence is that the only remedy of the plaintiff was by a suit under Section 112 of the Act, that he did institute such a suit being L.A. 499 of 1927 on the file of the Deputy Collector Pattukottai that it was dismissed as time-barred and that the present suit is barred by Section 189 of the Act and that the defendant was entitled to institute the summary proceedings. The learned District Munsif decreed the plaintiff's claim holding that as the defendant had sold his interest in the land the proceedings initiated by him are without jurisdiction. The learned District Judge reversed his decision on the ground that in spite of the transfer he can take proceedings to sell the holding of his tenant for the arrears due up to date of transfer and that though a person not entitled to the melwaram cannot take summary proceedings, yet if he claims to be entitled and takes such proceedings the revenue Court would have jurisdiction to entertain the same and it was obligatory upon the defendant to institute a suit under Section 112 and urge his objection's therein and therefore he is precluded from maintaining the present suit. The plaintiff has preferred this second appeal.

(2.) The main point urged on his behalf is that the suit for a declaration that he is the owner of both the warams is cognisable by a Civil Court and the injunction is ancillary to the said main relief and Section 189 of the Act is no bar to the maintenance of such a suit.

(3.) It cannot be disputed that where plaintiff's right as owner of land is invaded by proceedings taken under colour of a statute he is entitled to sue in a Civil Court for a declaration of his right and for an injunction to protect it. Such a suit was competent to the plaintiff before the Estates Land Act. Is it taken away by the Act? In deciding this question two principles have to be kept in view. One is that enunciated by the Privy Council in Ramayya v. Lakshminarayyana (1934) 67 M.L.J. 1 : L.R. 61 I.A. 177 : I.L.R. 57 Mad. 443 (P.C.) namely, where the statements in the plaint sufficiently comply with the provisions of Order 7, Rule 1 Sub-clause (f), the terms of Section 9 Civil Procedure Code lay down a general rule in favour of the jurisdiction of a civil court and the burden of proof is on the party who maintains an exception to the general rule. The second is where the right to oust the jurisdiction is based on a statute it must be construed strictly and the particular suit must be prohibited expressly or by necessary implication. The statute relied on in this case is Section 189(1) of the Estates Land Act which is in these terms: A collector or other Revenue Officer specially authorised under this Act shall hear and determine as a Revenue Court all suits and applications of the nature specified in parts A & B of the schedule and no civil Court in the exercise of its original jurisdiction shall take cognisance of any dispute or matter in respect of which such suit or application might be brought or made.