GANGA DATT Vs. MANDIR NARAYAN
LAWS(HPH)-1952-6-4
HIGH COURT OF HIMACHAL PRADESH
Decided on June 02,1952

Ganga Datt Appellant
VERSUS
Mandir Narayan Respondents

JUDGEMENT

CHOWDHRY,J. - (1.) THIS is a reference by the learned District Judge of Mahasu and Sirmur under Section 100, Punjab Tenancy Act. The plaintiff Mandir Narayan Deota filed a suit against the defendants for recovery of certain dues for grazing their sheep and goats on a pasturage known as the Kanda Kalga Patan. The defendants denied the plaintiff's right to claim the grazing dues. It appears that there were two previous decisions, one dated 1 4 1994 B. passed by the Raja Sahib of Bushahr and the other dated 21 5 1946 A. D. passed by Sir Dalip Singh as Judicial Committee. The plaintiff relied upon the former and the defendants upon the latter decision. The trial Court, the Subordinate Judge of Rohru, decreed the suit on 25 4 1949 on foot of the judgment of the Raja Sahib without going into any other question. The defendants went up in appeal to the District Judge and there raised for the first time an objection that the suit was not cognizable by a civil Court. The District Judge held that the present was a suit of the class mentioned in Section 77 (3) (o), Punjab Tenancy Act, which under the provisions of that section should have been heard and determined by a revenue Court. He has, therefore, submitted the record of the suit to this Court under Section 100(1) of that Act.
(2.) BEFORE entering into the merits of the reference I deem it necessary to refer to the mistakes committed by the learned District Judge in making the reference. I do so in order that similar mistakes may not be made in future in this newly formed State. The initial mistake committed by him will appear from the order which I passed under Order 46, Rule 5, Civil P. C., returning the reference for amendment in the light of the observations made by me in that order. The order is reproduced below: "The District Judge has stated that on a plain reading of the said section he was not required to submit his opinion along with the records. This is in contravention of Rules 3 and 15, Chapter 15, Volume I, High Court Rules and Orders. It is also in contravention of the provisions of Sub clause (a) of Clause (1) of the said section, for the only way in which the High Court can find that it "appeared" to the civil Court making the reference "that a Court under its control had determined a suit of a class mentioned in Section 77 which under the provisions of that section should have been heard and determined by a Revenue Court" is by looking at the reference itself, which it would not be possible for the High Court to do if the reference does not fulfil the requirements of the said Rule 3 and Order 46, Rule 1, Civil P. C. It follows therefore that it was incumbent upon the learned District Judge when making the reference to (1) draw up a statement of the facts of the case, and (2) to state his own opinion showing how it appeared to him that the Court subordinate to his control had determined a suit of a class mentioned in Section 77 which under the provisions of that section should have been heard and determined by a revenue Court. The mere fact that the counsel for the parties conceded that point would not be a compliance with the above rules." In the amended reference received from him the learned District Judge has not only expressed the opinion called for from him but also his opinion on the merits of the case. He was again in error in doing so. An opinion on the merits of the case was neither asked for from him nor was he entitled to submit under the rules, and it will therefore be disregarded. Coming to the merits of the reference and to the question of the proper order to be passed by this Court, the suit being by a landowner to recover moneys claimed as due for the enjoyment of right of pasturage, it belongs to the class mentioned in Section 77 (3) (o), Punjab Tenancy Act and so was exclusively cognizable by a revenue Court. The learned counsel for the parties conceded this before the District Judge and also here. They also agreed that the first of the two conditions mentioned in Section 100(2) of the Tenancy Act was satisfied, namely, that the suit had been determined in good faith by the trial Court. This was obviously due to the fact that the plea of the suit being cognizable by a revenue Court was not taken before the Subordinate Judge but, as stated above, for the first time before the District Judge in appeal. The learned counsel were, however, at variance with regard to the other condition mentioned in the said Sub section as to whether the parties had, or had not, been prejudiced by the mistake as to jurisdiction committed by the trial Court. The learned counsel for the defendants, who were the appellants before the District Judge, contended that such a prejudice had been caused and therefore this Court should not order that the decree passed by the Subordinate Judge of Rohru be registered as a decree of the appropriate revenue Court. The proper order, according to him, to be passed by this Court is that the plaint be returned for presentation to the appropriate revenue Court. On the other hand, it was argued by the learned counsel for the plaintiff, the respondent in the lower appellate Court, that no such prejudice had been caused, and that the proper order to be passed by this Court is that the decree be registered in the appropriate revenue Court which had jurisdiction and the appeal filed by the defendants before the District Judge be returned to them for presentation to the appropriate appellate revenue Court. It will thus be seen that the attempt of the plaintiff is, subject to the result of any future appeal, to preserve the decree that has already been passed in his favour, whilst the defendants want to get rid of it and to have a trial 'de novo'. It may be further mentioned that the presiding officer at Rohru who decreed this suit as a Subordinate Judge also exercised jurisdiction as the appropriate Assistant Collector on the revenue side.
(3.) THE sole question for determination before me, therefore, is whether or not the parties have been prejudiced by the mistake as to jurisdiction committed by the trial Court, and what is the proper order that this Court should pass in this reference.;


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