A. F. O. No. 211 of 1963

10th August, 1965.

Petitioner Counsel: R.G. Bhadekar, s
Respondent Counsel: H.G. Vaishnav, .

JUDGMENT

JUDGMENT :-This is an appeal by the original defendants against the appellate judgment and order of remand of the Respondent plaintiff's suit passed by the Extra Assistant judge, Aurangabad, in Civil Appeal No. 241 of 961, on June 13, 1963. The above appeal No. 241 of 1961 came to he filed by the Respondent plaintiff, because by his judgment dated September 30, 1961, the Joint Civil Judge, Junior Division, Aurangabad, held that the Civil Court had no jurisdiction to try the plaintiff's Regular suit No. 36 of 1959 and that the suit was not tenable in the form in which it was constituted. The learned Appellate Judge reversed the first finding that the Civil Court had no jurisdiction and as regards the second finding, held that the question of tenability was liable to be decided after evidence of parties was recorded and not as a preliminary issue as on demurrer.

2. It is once again contended on behalf of the Appellants (Original Defendants) in this appeal that the Civil Court had no jurisdiction to entertain the plaintiff's suit and the appellate order of remand should accordingly be set aside. The facts relevant in connection with the above contention are as follows :-

3. In the plaintiff's suit there are three prayers as follows :-

(1) It be decreed that the plaintiffs are owners of the Inami lands (mentioned in the plaint) to the extent of one half thereof.

(2) That the plaintiffs are entitled to one half of the compensation amount of the Jagir mentioned in the plaint.

(3) The Plaintiffs be paid Rs. 800 in consequence of the declaration claimed in prayer (1) towards their half share in the income of the Inami lands for two years prior to the date of the suit. The main allegations in the plaint in connection with the above reliefs claimed therein are as follows :-

4. There is a Ram Mandir situated at Bhalgaon in taluka Aurangabad. In connection with the services to be rendered to the temple of the Ram Mandir, an Atiyat grant had been made by the Government. Under the grant, Jagir of villages of (i) Naye Gawahan and (ii) Dholpuri was made and about 13 other lands were also given as Inami lands. The grant was made in favour of one Hari Buva, the common ancestor of the parties to the suit. In respect of the grant, a Muntakhab No. 1080 D-18- Thir 1297 Fasli was issued in the name of one Raghuvir Vishwasrao, being a collateral ancestor of the plaintiff in his paternal line. In connection with the Inami lands, Muntakhab No. 486 dated 29th Aban 1296 Fasli was issued. In the prior Inam enquiry proceedings, Raghuvir Vishwasrao had appeared as manager of the joint family of the parties. He had in that enquiry accepted the position that Venkatrao, the grandfather of the plaintiff and real brother of Raghuvir Vishwasrao, had one half share in the Jagir villages and Inami lands. After the death of Raghuvir Vishwasrao, the Muntakhab holder was Raghuvir's son Rangrao. The ultimate Muntakhab holder was defendant 1's father Vishwarao who died in May 12, 1957. The plaintiff's case is that the plaintiff's branch was being paid from time to

time the half share of the income from the Jagir villages and the Inami lands. In that connection, Rangrao, had executed in favour of the plaintiff's father a writing dated 26th Azur 1314 Fasli. A futher writing had been executed in 1328 Fasli. Payment of half share was continuously being made to the plaintiff's branch even by Vishwasrao, the father of defendant 1, prior to his death on May 12, 1957. When Vishwasrao had withheld payment, the disputes were referred to arbitration and an award dated 2nd Meher 1343 Fasli was made. That award was made rule of Court. Under the award, possession of certain properties was directed to be continued with the branch of the plaintiff and directions were given for payment or Rs. 260 to the plaintiff's branch. The plaintiff's case on the above facts as summarised in paragraph 9 of the plaint is that the Jagir and the Inami lands were joint ancestral properties of co-ownership of the parties to the suit. The plaintiff was entitled to one half share in these properties.

5. Admittedly, in 1957-58, in consequence of the Hyderabad Abolition of Jagirs Regulation 1358 Fasli, the Jagir of the above two villages was abolished. In certain consequential proceedings the commutation sum payable in respect of the Jagir of the two villages has been fixed at Rs. 1,257-10-0 to be paid annually to the Muntakhab holder, the defendant 1. From certain observations in the judgment of the trial Court, it appears that on abolition of Jagirs all the rights and liabilities of a Jagirdar in relation to the Jagir have ceased to exist and the same have become exercisable and enforceable by or against the Jagir administrator. Now, the result of that position is that so far as the Jagir administrator and/or the Government is concerned, the commutation amount of Rs. 1,257-10-0 is payable to defendant 1. The plaintiff claims that in respect of the above commutation sum, the plaintiff as one-half owner of the ancestral Jagir villages is entitled to payment of the sum of Rs.628-13-9 annually by defendant 1. The plain, tiff has in connection with the above commutation amount made the above prayer (2) in the plaint claiming a declaration mat the plaintiffs are entitled to half the compensation amount of the Jagir.

6. Admittedly, the grant in respect of the 13 Inami lands mentioned in the plaint has not been affected in any manner by the Hyderabad Abolition of Inams Act, 1954. That is so, because these are service Inam lands in respect of services to be rendered to the temple of Ram Mandir. The plaintiff's case as regards these Inami lands in paragraph 10 of the plaint is that the income of these lands comes to Rs. 2,400 per year. Defendant 1 is entitled to retain two third of that income as remuneration for the services rendered to the temple of Ram Mandir. As regards the balance of Rs. 800, the same is divisible between the plaintiff and the defendants as one-half owners of the Inami lands. The plaintiff has in respect of the Inami lands made prayers (1) and (3), i.e., he has claimed a declaration that he is the owner of the Inami lands to the extent of one half and he is entitled to a decree for Rs. 800 being his share of income for a period of two years prior to the date of the suit.

7. The contention that is made on behalf of the Appellants is that the claims made in the suit are within the exclusive jurisdiction of th6 Atiyat Courts and not liable to be decided by the Civil Courts. In support of that contention, strong reliance has been placed on the scheme of the Hyderabad Atiyat Enquiries Act, 1951, and particularly on Section 2(1) (a) and S. 13(1) of the Act. Reference has been made by both sides also to the provisions in Sections 2(1)(b), 3-A and 12 of the Act. The Sections 2(1)(a), and 13(1) run as follows :

"2. (1) In this Act unless there is anything repugnant in the subject or context

(a) 'Atiyat Court' means a Court or authority competent to make Atiyat enquiries and enquiries as to claims to succession to and any right, title or interest in Atiyat grants and matters ancillary thereto;

X X X X

13. (1) Except as provided in this Act, the decision of an Atiyat Court shall be final and shall not be questioned in any Court of law.

x x x x x x"

The language of these sections is plain and clear. Apparently, the true effect of the above provisions is that in connection with questions which are liable to be decided by Atiyat Court, the decisions of that Court are not liable to be questioned in any Court of law, thereby meaning in any Civil Court, except as provided in the Act itself. The questions liable to be decided by Atiyat Courts obviously are of Atiyat enquiries and also of enquiries as to claims to succession to and any right, title or interest in Atiyat grants and matters ancillary thereto. The phrases "any right, title or interest" and "matters ancillary thereto" are indicative of the wide character of jurisdiction of Atiyat Courts. It appeal's to me that the true effect of the above provisions is that a claim of any kind arising out of Atiyat grants is liable to be disposed of by Atiyat Courts. The questions of right, title and interest arising out of Atiyat grants cannot be decided by ordinary Civil Courts unless provision giving jurisdiction to decide such matters can be found in the Act.

8. Before referring to the other relevant provisions, it is necessary to state that in my view all claims made in the plaint in this suit are claims consequent upon the right and/or title claimed by the plaintiff in the Atiyat grant mentioned in the plaint. In the result, a finding would have to be made in favour of the Appellants on the contention made above unless it is possible to find some provision in the Act by which jurisdiction has been conferred on Civil Courts to try question such as arising in this suit.

9. In this connection, Section 12 provides : ''In so far as questions of succession, legitimacy, divorce or other questions of personal law are concerned, the final decision of a Civil Court shall be given effect to by the Atiyat Court xxx xxx whether the decision of the Atiyat Court was given before or after the decision of the Civil Court." It is, therefore, clear that disputes regarding right, title and interest in Atiyat grants

arising out of disputes relating to succession, legitimacy, divorce or other questions of personal law, are liable to be finally decided by a Civil Court. In connection with these matters, the Atiyat Court is a Court of concurrent jurisdiction, but decisions of the Atiyat Court are not final and liable to be substituted by decisions of a Civil Court. Where disputes in respect of right, title and interest in Atiyat grants do not arise out of disputes relating to succession, legitimacy, divorce or other questions of personal law, they are not liable to be decided by a Civil Court. That is the result of the provisions in Section 12 read with the above Sections 2(1)(a) and 13 of the Act. Reliance has been placed strongly on behalf of the Respondent on the provisions in Section 3-A, the relevant parts whereof run as follows :

"3-A. (1) In the case of Atiyat grants specified in sub-clause (i) of clause (b) of Sub-Section (1) of Section 2, Atiyat enquiries and enquiries as to any right, title or interest therein shall, xxxx, be held in Atiyat Courts xxx, and in the course of such enquiries, Atiyat Courts shall also be competent to enquire into claims to succession arising in respect of such grants :

Provided that claims to succession arising after the completion of Atiyat inquiry of any such grant shall not be entertained in any Atiyat Court and all such claims shall be filed in and decided by the competent Civil Court.

(2) In the case of Atiyat grants specified in sub-clauses (ii) to (vi) of clause (b) of Sub-S. (1) or Section 2, all Atiyat enquiries, enquiries as to claims to succession to, or any right, title or interest therein and matters ancillary thereto shall be held in Atiyat Courts in accordance with the provisions of this Act."

The sub-clauses (i) on the one had and (ii) to (vi) on the other of clause (b) of Sub-Section (1) of Section 2 require to be stated to arrive at the true meaning of the provisions in Section 3-A. Section 2(1)(b) runs as follows :

"(b) 'Atiyat grants' mean (i) in the case of jagirs abolished under the Hyderabad (Abolition Jagirs) Regulation, 1358 Fasli (LXIX of 1358 Fasli), the commutation sums payable in respect thereof under the Hyderabad Jagirs (Commutation) Regulation, 1359 Fasli (XXV of 1359 Fasli);

(ii) Inams to which the Hyderabad Abolition of Inams Act, 1954 (VIII of 1955) is not applicable;

(iii) in the case of inams abolished under the Hyderabad Abolition of Inams Act, 1954 (VIII) of 1955), the compensation payable under that Act;

(iv) cash grants to which the Hyderabad Abolition of Cash Grants Act, 1952 (XXXIII of 1952) is not applicable;

(v) cash grants temporarily continued under the Hyderabad Abolition of Cash Grants Act, 1952 (XXXIII of 1952);

(vi) in the case of cash grants abolished under the Hyderabad Abolition of Cash Grants Act, 1952 (XXXIII of 1952) subject to payment of compensation, the compensation payable in respect thereof";

10. Mr. Vaishnav for the Respondents has submitted that the true effect of the proviso to Sub-S. (1) of Section 3-A is that after Atiyat enquiry is completed in respect of Jagirs abolished under the Hyderabad Abolition of Jagirs Regulation, 1358 Fasli, the question of right, title and interest of any claimant in the commutation sums payable in respect of the abolished Jagir is liable to be decided by a Civil Court only. Now, there is no substance in this contention. The proviso only refers to claims to succession and does not refer to any other dispute between the parties relating to the right, title and interest of a claimant in the commutation sum payable as a result of abolition of Jagir. It appears that distinction has been made between the question of succession arising in the matter of commutation sums payable in consequence of abolition of Jagirs and the question of succession arising in respect of other matters referred to in sub-clauses (ii) to (vi) of clause (b) of Sub-Section 1 of s. 2. The true effect of the distinction made between the matters mentioned in sub-clause (i) the other sub-clauses (ii) to (vi) is that even in respect of claims to succession arising from time to time in the matters referred to in sub-clauses (ii) to (vi), the Atiyat Court would have to decide the same and would have jurisdiction to decide the same from time to time. That is not so with reference to the claims to succession in respect of commutation sums payable in consequence of abolition of Jagirs. The submission made by Mr. Vaishnav that the effect of the provisions in Section 3-A is that each and all claims relating to right, title and interest in Atiyat grants are liable to be decided by a Civil Court is not justified by the language of the section. On a reading of Sections 3-A and 12 along with the provisions in Sections 13(1) and 2(1)(a), it is clear that a Civil Court will not have jurisdiction to decide claims to right, title and interest in Atiyat grants or matters ancillary thereto except as regards the questions of succession, legitimacy, divorce or other questions of personal law.

11. Now, having regard to the contentious made on behalf of the defendants, the questions and disputes which arose between the parties may be summarised as follows :

12. The defendants denied that the Atiyat grant in respect of the Jagir villages and the Inami lands was ancestral joint property of the plaintiff and the defendants. On that footing they contended that the plaintiff was not entitled to any share in the Jagir villages and the Inami lands mentioned in the plaint. They, therefore, contended that the plaintiff was not entitled to the declarations claimed in prayers (1) and (2) of the plaint and was not entitled to payment of compensation claimed in prayer (3) of the plaint. They denied that their ancestors had admitted the plaintiff's claim as joint owners in the Atiyat grant and/or the Jagir villages and Inami lands mentioned in the plaint. They further contended that the plff's claim was barred by law of limitation. They denied liability to pay the sum of Rs. 800 claimed in prayer (3) of the plaint. The main substance of the contentions made as above by the defendants in their written statement is that they denied that the plff had any right, title or interest in the Atiyat grant and/or Jagir villages and the Inami lands mentioned

in the plaint. The main substance of their dispute did not involve merely a question of succession, legitimacy, divorce or other questions of personal law referred to in Section 12 of the Act. The whole question which arose for decision in the suit obviously related to the plaintiff not having any right, title or interest in the Jagir villages and the Inami lands mentioned in the plaint.

13. Having come to the above conclusion, the trial Court dismissed the plff.'s suit. The Appellate Court, however, came to a different conclusion. The Appellate Court has not taken notice of the provisions in Sections 2(1)(a) and 13 of the Act. The Appellate Court has come to make a wrong finding that the "plaintiffs" are not requesting the Civil Court to adjudicate upon the question of Atiyat grant. The question to be decided in this suit is the question of share between the Inamdars themselves." It appears to me that the above basis of the learned Judge's judgment is not correct. The contentions made by the defendants amount to denial of the title of the plaintiff to the Atiyat grant and/or the Jagir villages and the relevant commutation sum and the Inami lands mentioned in the plaint. The question that was raised by the defendants was not merely of share between the Inamdars themselves as mentioned by the learned Judge. The question of the defendants' refusal to admit the plaintiff's title to the Atiyat grant mentioned in the plaint and refusal of the Defendants to make payment to the plaintiff as co-sharer was, in my view, liable to be decided by the Atiyat Court alone. That is the result of the provisions Sections 2(1)(a) and 13(1) of the Act.

14. In the result, the learned Judge's finding that the suit was maintainable in the Civil Court is set aside. The appellate order dated June 13, 1963, is set aside. The decree of dismissal of the suit with costs passed by the Court of first instance on September 30, 1961, is revived. The Respondent will pay costs of this appeal and also costs of the Appellants of the above Civil Appeal. The Respondent with be entitled to file the above suit in the Atiyat Court, if he so thinks fit.

Appeal Allowed