SUBHAN GANAI Vs. ALI DAR
LAWS(J&K)-1982-6-9
HIGH COURT OF JAMMU AND KASHMIR
Decided on June 02,1982

Subhan Ganai Appellant
VERSUS
Ali Dar Respondents

JUDGEMENT

- (1.) THIS is an application for review of an order passed on 7 -10 -1978 by an erstwhile learned Single Judge of this court disposing of a revision petition. The events leading upto this review petition may be briefly stated. One, Shri Baij Nath and his minor sons owned an orchard measuring 166 kanals and 19 marlas situated in village Pohrupeth, Tehsil Handwara. Shri Baij Nath sold an area of 7 kanals and 13 marlas out of his share to Mohd. Abdullah Ganai. For the remaining part of share he entered into an agreement to sell with Subhan Ganai and others hereinafter called the first party. Before any sale deed could be executed in pursuance of this agreement to sell, Shri Baij Nath sold off the entire land to Ali Dar and others hereinafter ˜called the second party. This led to a dispute between the parties which became the subject matter of proceedings under section 145 Cr. P. C. The trial Magistrate attached the property and gave it on superdnama. In revision the proceedings were quashed by a learned Single Judge of this court. But he did not make any further direction with regard to the disposal of the attached property. The parties filed cross suits for declaration and injunction in the court of Sub judge Handwara. The first party, confined its claim to 75 kanals and 16Â 1/2 marlas as, according to them, Sh. Baij Nath owned half share in the orchard out of which he had already sold 7 kanals and 13 marlas. The second party sued for the entire land on the basis of sale deed in their favour. The trial court issued an interim order, of injunction restraining the first party from interfering with the possession of the second party. Aggrieved by the order the first party preferred an appeal to the District Judge Baramulla. The District Judge observed that a dispute existed with regard to possession and it could not be prima facie determined which party was in possession of the suit property. He opined that it was proper for the trial court to struck an issue with regard to possession and pass an order of temporary injunction only after it had determined such issue. The District Judge passed the order accordingly and remanded the case to the trial court. Against this order the second party came up in revision to this court. The revision was heard by a learned Single Judge of this court viz Justice Mian Jala1 -ud -Din now retired. By his Order dated 7 -10 -1978; he held that at the relevant time the property was in custodial legis and there was no material on the record to determine the question of possession and consequently the proper thing to do would be to appoint a receiver in order to safeguard the rights and interests of the parties. The Judge then proceeded to observe: The next question is as to for how much land should the receiver be appointed? As already observed respondents defendants do not lay their claim to one half of the property. In my opinion receiver can be appointed only with respect to the share of Baij Nath in the landed property for which he could contract the agreement for sale. Thus Baij Naths share as a proprietor in the land is only 40 kanals and odd marlas which he could legitimately dispose of. The contract for sale in favour of the respondent is only by Baij Nath and not by other proprietors. Out of 40 kanals and 19 marlas, share of Baij Nath -have been sold 7 kanals and 13 marlas in favour of Abdullah Ganai. The remainder is 33 kanals and 6 marlas. Therefore in order to preserve the property and with a view to protect the rights and interests of the respondents and without prejudice to the rights of the parties and without expressing any opinion on the merits in the main suits but only for the limited purpose of the decision of this case, it is ordered that the land measuring 33 kanals and 6 marlas will vest in the receiver to be appointed. In respect of the remaining, portion of land other than 33 kanals and 6 marlas, the order of interim injunction is made absolute. It is further ordered that the Tehsildar Handwara will act as receiver for 33 kanals and 6 marlas of land. He will secure the assistance of the Horticulture Assistant and will collect the fruits from these portions of land, store them and dispose them of by sale. One representative of each side will be with him. After defraying the expenses to be incurred thereon, the sale proceeds will be deposited in the trial court and, will be disbursed to the party who ultimately is found to be in possession or deemed to have been in possession of this portion of the land. Meanwhile the Sub Judge. Handwara, will record a finding the question of possession of these 33 kanals and 6 marlas of land after allowing the parties an opportunity to produce their respective evidence in this behalf." By means of this application the first party has asked for review. The argument of the learned counsel for the first party is that the learned Single Judge has almost decided the entire controversy in the suit and left nothing to be determined by the trial court inasmuch as the principal question involved in the litigation is what exactly was the share of Baij Nath in the orchard and this question has been determined by the learned Single Judge in the impugned order. He contends that, sitting in revision, the learned Single Judge could not determine this question which is a question of fact. He further contends that the order in its present form is not capable of implementation and this is exactly what the receiver too has pointed out because there is nothing in the order to indicate as to how the area intended to be taken over by the receiver should be carved out. There is merit in both these contentions. One the learned Single Judge had come to the conclusion that the appointment of receiver was imperative, it necessarily followed that the appointment should relate to the disputed portion of the land. On the pleadings, the dispute, it may be pointed out, related to an area of 75 kanals 6 marlas only because the first party claimed such an area on the basis of an agreement to sell and did not raise any dispute as regards the remaining portion which they conceded had been rightly transferred to the second party by virtue of sale in their favour. The learned Single Judge, however, proceeded to determine the share of Baij Nath and after having confined the same to 33 kanals and 6 marlas, directed that the appointment of the receiver shall relate to that much area only, even without making any efforts to delineate the same. This is manifestly not a correct approach. So doing the learned Single Judge has sit in judgment over the question of title as regards the shares of Baij Nath and his sons in the disputed property. This was a question of fact which could be appropriately determined by the trial court. Sitting in revision, the learned Single Judge could not go into this question. That constitutes an error of jurisdiction which is apparent on the face of the record. Moreover, the order is not capable of implementation in its present form because the area with regard to which the receiver has been appointed has not been delineated. In fact, it could not be delineated because the agreement to sell did not relate to a specific portion of the orchard. On the other hand it extended to the share held by Shri Baij Nath in the orchard. In, the circumstances there are good grounds for review. The order requires modification to the extent that the appointment of the receiver is related to the disputed portion of the land and moreover, the order is so moulded that income accruing from the disputed portion alone preserved for the benefit of the successful party. On these premises, I, therefore, direct that the receiver shall, take charge of, the entire ochard and manage the same in the usual manner with the assistance of an expert in Horticulture, if necessary. He will sell the usufruct each year by auction in which the parties shall also be allowed to participate. He will apportion the auction money as between the disputed and undisputed portions of the orchard in proportion to their areas after exploding the expenses of the management and expenses of maintenance of the orchard in the same proportion and then pay the portion of income relating to the undisputed portion to the first party and deposit the income relateable to the disputed portion in the trial court, and the court, in its turn shall deposit the same in a recognized bank for a fixed term and renew the same from time, if necessary. The order shall remain operative till the final conclusion of the suit and the court shall hold the deposit subject to the result thereof. The fee of the receiver shall be determined by the trial court each year after taking into consideration the amount of work put in by the receiver. Lest there should be some misunderstanding. Let me make it clear that while taking over the charge of the orchard the receiver shall not dispossess the occupier of any residential house standing over the land included in the orchard. The review petition is disposed of accordingly.
(2.) IN what, I have stated above, I have assumed that a review petition would lie against an order passed in revision. But the argument on behalf of the second party was that no such review would lie. In this, reliance has been placed on the decisions reported as Dokku Bhushayya v. Katragadda Ramakrishnayya and ors AIR - 1962 S. C. 1886 and Ram Chandra Aggarwal and another Vs The State of Uttar Pradesh and another AIR 1966 S. C. 1888. On behalf of the first party it was, however contended that a review petition is competent in relation to an order passed in revision. In support of this argument reliance was placed on the decision of this court in Rahim Vs. Karim AIR 1967 J&K 93. In that case, a learned Single Judge of this court has held that section 141 CPC covers proceedings in revision, being proceedings in the court of Civil Jurisdiction. It necessarily follows that under O. 47 R. 1 read with sec. 141 C. P. C. review is legally competent against an order in revision. The argument on behalf of the second party however is that the law laid down in this authority cannot be said to be a good law because the decision runs counter to the view expressed by the Supreme Court in the decisions, mentioned above. In my opinion the argument is misconceived. In the case of Dokku Bhushayya supra the Supreme Court has observed : "Lastly it was contended that by reason of S. 141 of the Code the procedure provided under Order XXXII R 7, should be extended to an agreement or a compromise entered into by a guardian in respect of an application to set aside a sale under Order XXI, R. 90 of the Code. The argument is that an application under Order XXI, R. 90, is an, independent proceeding, and as the agreement for withdrawing the said proceeding affects the right created by the sale, it falls within the meaning of the said rule, section 141 of the Code reads : 4 The procedure provided in this Code, in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of Civil Jurisdiction. 5 The corresponding S. 646 of the Code of 1882 reads, as follows: 6 The procedure herein prescribed shall be followed, as far it can be made applicable, in all proceedings in any court of civil jurisdiction other than suits and appeals." 7 There was a conflict on the question whether the said section applied to proceedings in execution. To steer clear of the conflict the following Explanation was added to the Section by the Civil Procedure Code Amendment Act 6 of 1892: Explanation. -This section does not apply to applications for the execution of decrees which are proceedings in suits. But the section was construed by the Privy Council even without the aid of the Explanation in Thakur Prasad Vs. Sheikh Fakir -Ullah ILR 17 All 106 PC, wherein, it observed : "It is not suggested that S. 373 of the Civil Procedure Code Order XXIII, R. 1 of the present code would of its own force apply to execution proceedings. The suggestion is that it is applied by force of S. 647 S 141 of the present Code. But the whole of chapter XIX of the Code consisting of 121 Sections, is devoted to the procedure in executions, and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable by saying in general terms that procedure for suits should be followed as far as applicable. Their Lordships think that the proceedings spoken of in section 647 include, original matters in the nature of suits such as proceedings in probates, guardianships and so forth and do not include executions." 8 This view has ever since been followed. We have already held that the application by the judgment debtor to set aside the sale is a proceeding in execution and therefore, section 141 of the Code will not apply for two reasons, namely I as execution proceedings, were continuation of suit within the meaning of 0.XXXII R. 7 of the Code and as the Code provided specifically for suits section 141 could not be invoked; and 2 as we have held an application by judgment debtor to set a sale is a proceeding in execution and therefore section 141, which applies only to original proceeding does not apply to such proceedings." 9 The argument on behalf of the second party was that, according to this decision, the Supreme Court has held that section 141 applied only to original proceedings and since, the proceedings in revision is not a original proceedings, an order passed in revision is not subject to review under 0. 47 R. 1 read with Section 141 C. P. C. In my opinion the argument is based upon a misreading of the judgment of the Supreme Court. The court has quoted with approval the observations of the Privy Council which clearly do not confine the operation of section 141 to original matters only. If the court has subsequently said that the said section applies only to original proceedings, it has done so simply to provide a contrast between a proceeding in execution and original proceeding and tried to demonstrate that the proceedings in execution is not a original proceeding to which section 141 would apply. Consequently the decision of the Supreme Court in Dokku Bhushayya Supra cannot be treated as a decision to the effect that section 141 applied to original matters only. On the other hand, it must be treated as a decision confining the operation of section 141 P. C. not only to original matters but also to the matters of independent nature akin to the original matter. To this view support is lent by the later decision of the Supreme Court in the case of Ram Chandra Supra. In that case the court referred to its decision in Munshi Ram V. Banwari Lal, AIR 1962 S. C: 903 and proceeded to observe: "Though there is no discussion, this court has acted upon the view that the expression civil proceeding in section 141 is not necessarily confined to an original proceeding like a suitor an application or appointment of a guardian etc., but that it applies also to a proceeding which is not an original proceeding: 10 Thus, proceedings in revision being an independent proceeding of a supervisory nature, clearly falls within the ambit of expression civil proceeding in section 141 C. P. C. and, if that be so an order passed in revision is obviously subject to review under 0. 47 R. I CPC read with section 141 C.P.C. The argument to the contrary of the learned counsel for the second party has no merit in it and is hereby repelled. 11 The parties are directed to appear before the trial court on 16 -6 -1982.;


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