KAMESHWAR SINGH Vs. RAM PRASAD SHARMA
LAWS(PAT)-1952-7-18
HIGH COURT OF PATNA
Decided on July 25,1952

SIR KAMESHWAR SINGH Appellant
VERSUS
RAM PRASAD SHARMA Respondents

JUDGEMENT

Das, J. - (1.) These two applications in revision arise out of an order of the learned Subordinate Judge of Monghyr, dated the 6th of January, 1951, in two miscellaneous cases, namely. Miscellaneous Case No. 41 and Miscellaneous Case No. 42 of 1950, before the learned Subordinate Judge.
(2.) The relevant facts are the following: The petitioner before us is the Maharajadhiraj of Darbhanga. The petitioner was the proprietor of a village called Rasulpur Makdum in the district of Monghyr. There is an adjoining diara village called Pundarak in the district of Patna, of which the State of Bihar, opposite party No. 3 before us, is the proprietor. The opposite parties classed together as the first party were lessees of Diara Pundarak, and the opposite parties classed together as the 3rd party were tenants of the Khas Mahal in respect of the lands in question. In 1928 there was a dispute about 125 bighas of land as to whether they lay in the petitioner's village Rasulpur or in village Pundarak. The dispute resulted in a proceeding under Section 145, Code of Criminal Procedure. That proceeding terminated against the present petitioner. Soon after there was another dispute regarding a block of 675 bighas of land. There was a proceeding under Section 144, Code of Criminal Procedure, which was decided against the petitioner. In 1934 the petitioner brought a suit for about 800 bighas of land, being Title Suit No. 24 of 1934 in the court of the Subordinate Judge of Monghyr. The suit was primarily one for a declaration of title and recovery of possession: there was also a claim for mesne profits, the nature and details whereof have given rise to some controversy. I shall later deal with that aspect of the matter. The present opposite parties were defendants in the suit, the lessees and tenants being defendants 2nd and 3rd parties and the defendant 1st party was the then Secretary of State for India in Council through the Collector of Monghyr. The suit, it appears, was contested by the Secretary of State alone. On the 28th of May, 1940, there was a compromise and the suit was decreed on compromise against the Secretary of State for India and ex parte against the other defendants. Paragraph 3 of the compromise petition stated: "If any part of the land in dispute is ascertained by the surveyor to be within the Raj boundary Government will pay to the Maharajadhiraj whatever they have realised as profits of this particular land for the past 10 years and up to relinquishment of possession by Government in favour of the Maharajadhiraj." The Government, however, did not relinquish possession in pursuance of the compromise petition. The result was that the present petitioner executed the decree and got possession delivered by a pleader commissioner on the 20th of April 1943. Thereafter, the present petitioner filed an application claiming mesne profits from the 28th May, 1930 to the 20th of April 1943, and one Mr. Maheshwar Prasad was appointed pleader commissioner for the ascertainment of mesne profits claimed by the petitioner. He submitted his report on the 21st of May, 1946, and in his report awarded mesne profits to the extent of Rs. 6,365/- and odd annas against the Secretary of State and Rs. 1,19,742/- and odd annas against defendants 2nd and 3rd parties, that is, 1st and 2nd opposite parties before us. The defendants did not appear to challenge the findings of the pleader commissioner, & on the 14th of February, 1947, the learned Subordinate Judge accepted the report of the pleader commissioner and passed a final order for mesne profits. Then on the 29th of May, 1950, more than three years after, some of the present opposite parties filed an application for setting aside the ex parte preliminary and final decrees under the provisions of Order IX, Rule 13, Code of Civil Procedure. On the 2nd of September, 1950, they also filed two applications, purporting to be applications under Sections 151 and 152, Code of Civil Procedure, for what they called an amendment of the decrees; in effect they said that the decree for mesne profits was illegal, incorrect and without jurisdiction and should be set aside. The learned Subordinate Judge dealt together by one judgment the application under Order IX, Rule 13, and the applications under Sections 151 and 152, Code of Civil Procedure. By his order dated the 6th January, 1951, he dismissed the application under Order IX, Rule 13, Code of Civil Procedure, holding that the opposite parties before us had full knowledge of the suit and also of the proceeding for the ascertainment of mesne profits. He further found that the application under Order IX, Rule 13, Code of Civil Procedure, was barred by time. He then proceeded to deal with the applications under Sections 151 and 152, Code of Civil Procedure, and held that the decree for mesne profits passed by his predecessor in office was erroneous and inequitable. On that finding he came to the conclusion that it was open to him to correct the mistake of his predecessor in the interest of justice, and purporting to act in exercise of the inherent jurisdiction of the court, he vacated the decree for mesne profits.
(3.) It is against this order of the learned Subordinate Judge that the two applications in revision are directed. Mr. B. C. De, appearing for the petitioner, has urged two substantial points: firstly, he has contended that the learned Subordinate Judge acted in excess of his jurisdiction in vacating the decree for mesne profits inasmuch as neither Section 151 nor Section 152, Code of Civil Procedure, gave the learned Subordinate Judge a jurisdiction to sit in appeal over the decision of his predecessor and set aside a decree passed by a court of competent jurisdiction except in accordance with law; secondly, he contended that the learned Subordinate Judge was wrong even on merits, in thinking that the decree for mesne profits was erroneous or inequitable.;


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