Decided on September 01,1950

Changroo Ram And Ors. Appellant
Mt. Putli And Ors. Respondents


Khosla, J. - (1.) THE only question for my decision in this appeal is whether a civil Court is competent to challenge an order passed by a Deputy Commissioner under Section 3 -A, Punjab Alienation of Land Act, on the ground that the alience was not a creditor. The facts briefly are that a mortgagor who was a member of an agricultural tribe sold her land to a mortgagee who was also a member of an agricultural tribe and the revenue authorities refused to mutate the land in favour of the vendee on the ground that the alience was a creditor within the meaning of Section 3 -A of the above mentioned Act. The vendee then brought a civil suit to challenge the order of the Deputy Commissioner on the ground that he was not a creditor. The learned Subordinate Judge hearing the suit held that a civil Court could not go into this question as the jurisdiction of the civil Court in all matters arising out of Punjab Alienation of Land Act was barred by the provisions of Section 21 of the Act. The suit of the vendee was accordingly dismissed. On appeal, the learned District Judge agreed with the finding of the learned Subordinate Judge on the question of jurisdiction but remanded the case for the trial of the remaining issue Section. The plea taken by the learned District Judge was that as the sale could not be upheld the transaction could be regarded us a usufructuary mortgage. Against this order the vendee has appealed to this Court.
(2.) A preliminary objection taken on behalf of the Respondents was that no appeal lay to this Court as the order of the learned District Judge did not amount to a decree and an order of remand of this nature was not appealable. An order of remand is appealable provided the order of the appellate Court would have been appealable bad it been a decree and in this case had the learned District Judge dismissed the appeal his order would have amounted to a decree. The order of remand is, therefore, appealable and the preliminary objection has no force. With regard to the merits, it is clear that the Punjab Alienation of Land Act does not lay down any procedure for enquiry into the question whether a vendee is or is not a creditor. Section 3 -A assumes that the transaction was made in favour Of a creditor and the wording of the section does not lay down that the Deputy Commissioner is the only person empowered to give a finding on this point. If the vendee is not a creditor it is clear that the Deputy Commissioner passing an order in a case of this type would act without jurisdiction and wherever a certain person specially empowered to determine any matter acts without jurisdiction the civil Courts can interfere with his order and disregard it. Section 21, in my view, is not a bar to the enquiry into this matter by a civil Court. If it is held that the vendee is a creditor then the civil Court cannot go behind the decision of the revenue authorities but the question whether a person is or is not a creditor is clearly triable by a civil Court as on this depends the question whether the revenue authorities had or had not jurisdiction to consider the case. I therefore allow this appeal and direct that in deciding the suit the learned trial judge will also consider the question whether the Appellant is or is not a creditor. Parties are directed to appear before the learned subordinate Judge on 09.10.1950. The costs of this appeal will be costs in the suit.;

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