JUDGMENT
R.N. Misra, J.
1. The appellant in this court was the plaintiff who sued for title and possession in respect of 13 decimals of land with a house standing thereon. His suit was decreed in the trial court, but he lost in the lower appellate court and has, therefore, come in second appeal.
2. According to the plaintiff, one Gopinath Mohapatra had three sons, namely, Bhagaban, Madan, and Janardan. Bhagaban’s widow was Jema. Radhamani happened to be the widow of Madan and the plaintiff is the son of Janardan. These three brothers had become separate during their lifetime and were in separate enjoyment of the properties allotted to
their respective shares. So far as the homestead was concerned they had been enjoying it jointly without any partition by metes and bounds. This house was situated in touzi No. 674. Gopinath, the common ancestor had only one anna interest in the touzi. This interest of one anna had accordingly been divided into three shares among Bhagaban, .Madan and Janardan. Before Jemamani’s death, she had executed a deed of gift in favour of Padmamani, who was the daughter of RadhamanL Radhamani had also executed another deed of gift in respect of her interest in the touzi in favour of Padmamani. Radhamani had two daughters, Padmamani and Indramani. One Babu-ram Biswal had married Padmamani and had lived in the family as an illatem son-in-law. Thus, during the lifetime of Jemamani and Radhamani, Baburani with his wife had come to live in the house and was in possession thereof. Padmamani died leaving two daughters, Amba and Laxmi and Baburam married one Hernamani for the second time after the death of his first wife. Hemamani is defendant No. 1. Indramani died leaving behind Hari and Benudhar as the sons. They are defendants 4 and 5. The plaintiff had gone away to Calcutta in connection with service. In the meantime, during his absence, the superior right in the touzi was sold to one Sabitri Dei as early as September. 1920, but the plaintiff was in occupation of the house and the rest of the property as a tenant under Sabitri and other co-sharer landlords. On 16-1-1923, the plaintiff had executed a usufructuary mortgage in favour of Baburam. In 1930, he redeemed the mortgage and came to possession. During this period, behind the back of the plaintiff, Baburam had got himself recorded in the current settlement record of rights. The plaintiff had no occasion to doubt the bona fides of Baburam who was virtually looking after all his properties. The plaintiff upon return from Calcutta possessed the property and after Jemamani’s death he inherited the share of Bhagaban as the last surviving reversioner. The defendants 2 to 4 were never in possession of the property. The defendant No, 1 was not entitled to the property, but he applied before the Estates Abolition Authorities for fixation of fair and equitable rent in her name. The plaintiff objected to it. As there was a decision against the plaintiff by the Estates Abolition Collector, the suit was filed. The cause of action of the suit was actually the order of the Estates Abolition Collector dated 18-8-62 by which fair and equitable rent in favour of defendant No. 1 was determined.
3. The main contest came from the defendant No. 1. Her case was that by virtue of the deeds of gift Padmamani
became the owner of the property held by Jemamani and Radhamani. After the sale of the plaintiff in favour of Sabitri, Jemamani and Radhamani became tenants under the landlord and possessed the properties. Baburam possessed the entire property. of all the three branches and after his death, the defendant No. 1 has been in possession of it. The plaintiff’s mortgage was denied. She further claimed that in the return made by the ex-intermediary, in place of Gopinath’s one anna interest, the name of the defendant No. 1 had already been entered. The defendant No. 1 claimed to have acquired adverse title to the property on account of her possession for a long time beyond the statutory period.
4. There is no dispute about the following facts:–
Bhagaban left behind Jemamani as his widow who died sometime in the year 1928. Madan’s widow Radhamani died in 1917. The plaintiff is the son of Janar-dan Madan’s two daughters were Radhamani and Indramani. Padmamani was married to Baburam who came to live as the illatem son-in-law along with Radhamani. Padmamani died in 1941. Baburam remarried after the death of Padmamani to defendant No. 1. Indramani died in 1956. The defendants 2 and 3 -are Padmamani’s daughters. Similarly defendants 4 and 5 are the sons of Indramani. The two gifts, Ext. B-1 and Ext. A-1 were found to be invalid by the trial court. The learned Munsif believed the possession of Padmamani and Baburam, and after them, defendant No. 1. But he found such possession to be permissive and declared the plaintiff’s title and possession over 2/3rd of the disputed property as he found defendants 4 and 5 were entitled to the remaining 1/3rd. He also called upon the defendants 4 and 5 to sell this 1/3rd share to the plaintiff on payment of Rs. 166/-, under the provisions of Section 4 of the Partition Act.
5. The defendant No. 1 and the defendants 2 to 5 together filed two separate appeals being Title Appeals No. 54/66 and No. 37/66. These appeals were heard together by the learned Additional Subordinate Judge. The lower appellate court found that the question of possession was of considerable importance and first proceeded to examine that aspect. He held that Baburam’s possession was not permissive. He next found that the right to claim on the basis of the reversionary right of the plaintiff arose in 1917 so far as Radhamani was concerned and in 1928 so far as Jemamani was concerned. The suit brought in 1962 was out of time. He then examined the defence claim that the suit was barred by limitation under Section 39 of the Orissa
Estates Abolition Act and upheld that objection also. Thus, on these findings, the decree of the trial court was set aside and the appeal was allowed. The plaintiff having lost in the hands of the appellate court is in appeal before this Court.
6. Two questions mainly arise in this appeal. Firstly, as to whether on merit, the claim of the plaintiff is to succeed and secondly, the effect of settlement under Ext. J made by the Estates Abolition Collector.
7. The provisions of the Orissa Estates Abolition Act as far as pertinent for the present purpose are contained in Sections 6, 8-A and 39 of the Act. These provisions so far as relevant may now be extracted for convenient reference.
“Section 6(1):
With effect from the date of vesting, all homesteads comprised in an estate and being in the possession of an intermediary on the date of such vesting, . . . shall, notwithstanding anything contained in this Act be deemed to be settled by the State Government with such Intermediary and with all the share-holders owning the estate, who shall be entitled to retain possession of such homesteads and of such buildings. …….
subject to the payment of such fair and equitable ground-rent as may be determined by the Collector in the prescribed manner.”
“Section 8-A:
(1) The Intermediary shall file his claim in the prescribed manner for settlement of fair and equitable rent in respect of lands and buildings which are deemed to be settled with him under Section 6 or Section 7 before the Collector within three months from the date of vesting.
(2) x x x x x x
(3) On the failure of filing the claims within the period specified under this section the provisions of clause (h) of Section 5 shall, notwithstanding anything to the contrary in Sections 6, 7 and 8, apply as if the right to possession of the lands or building or structure as the case may be, had vested in the State Government by the operation of this Act and thereupon the right to make any such claim as aforesaid shall stand extinguished.”
“Section 39:
No suit shall be brought in any Civil Court in respect of any entry in or omission from a compensation Assessment-roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subiect of any application made or proceeding taken under the said Chapters,”
8. In the trial court Ext J which is the final order under Section 6 of the Estates Abolition Act and Ext. L, the rent schedule pursuant to the order under
Ext- J were produced. From Ext. L it clearly transpires that plots 134 and 135 of Nijjot holding and plot 72 of the Ana-badi holding which constitute the entire disputed property were settled in the name of defendant No. 1, in Rent Fixation Case No. 136 of 1956-57, under Sections 6 and 7 of the Estates Abolition Act In this court, an application for acceptance of additional evidence has been filed. Two sets of documents have been produced along with an application for acceptance of additional evidence. The first document is the entire order sheet of Rent Fixation Case No. 136 of 1956-57 including the public notice and the second document is the order of the Additional Collector of Balasore in Estates Abolition Appeal No. 60 of 1959-60, dated 30th July, 1960, by which the original order of settlement was vacated and the matter was directed to be redisposed of. Ext. J is the final order subsequent to this remand. Both these proceedings were inter-partes and are public documents. Mr. Pal’s claim is that these documents if accepted would help the court to decide the matter conveniently. Mr. Mohapatra raised objection about admitting these documents into evidence. But I do not think, the plaintiff is at all prejudiced by accepting these documents. The very basis of his case is that such a proceeding was taken and aggrieved by its final order he came to the court. There is no dispute or doubt about the authenticity of the documents I am also of the view that if the documents are received in evidence, the disposal of the appeal may be facilitated. I would, therefore, allow the application under Order 41, Rule 27, C.P.C. and direct that these two documents be received by way of additional evidence. The order sheet of the Rent Fixation Case No. 136 of 1956-57 be marked as Ext. O and the appellate order of the Collector in Estates Abolition Appeal No. 60 of 1959-60 be marked as Ext. P.
9. On a reference to the Estates Abolition proceedings, it transpires that an application was made by the defendant No. 1 for settlement of the land with her. On 11-5-59, the O.E.A. Collector passed the following order–
“The ex-Zamindar and the applicant in this case–Hemamani Biswal–appears through Govinda Biswal. The application for fixation of rent under Sections 6 and 7 of the O.E.A. Act has been filed in the prescribed form within the prescribed time limit.”
Ultimately he accepted the claim and directed rent to be fixed. An appeal was carried by the plaintiff-appellant to the Additional District Collector. By Ext. P (the document received as additional evidence), the plaintiff’s appeal was allowed and the Estates Abolition Collector was called upon to make spot verification and
redetermination of the matter. There was actually a spot enquiry on 18-7-62 as would appear from the order sheet in Ext. O. The various orders in this case, subsequent to the remand by the appellate court go to show that both the parties–the plaintiff and the defendant No. 1–were present. After hearing the parties, the order under Ext. J was passed settling the lands with the defendant No. 1. No challenge was offered to the settlement by the Estates Abolition Collector by filing an appeal under Section 9 of that Act. The plaintiff came with this suit.
10. The main question for examination, therefore, is as to whether the Civil Court has jurisdiction in view of the mandatory provisions in the statute to entertain the present suit.
11. Mr. Mohapatra’s main contention in this Court has been that the settlement by the Estates Abolition Collector as evidenced by Ext. J is not in accordance with law and therefore it is open to the civil court to examine the matter afresh. The bar of jurisdiction raised under Section 39 of the Estates Abolition Act is on the basis that the order is in accordance with the statute. If the impugned order Ext. J is not in accordance with the statute, the bar of jurisdiction would not apply and the Civil Court would certainly have jurisdiction to examine whether the statutory requirements have been complied with. He also contends that possession on the material date was required to be found by the Estates Abolition Collector for the purpose of making an order under Section 6 of the Act. As the Estates Abolition Collector has omitted to find possession on the material date his order is without jurisdiction and therefore, the protection under the statute in respect of such orders on the provisions of Section 39 of the Act cannot be raised. He relies upon the decision of their Lordships of the Judicial Committee in Secy, of State v. Mask & Co., AIR 1940 PC 105, where their Lordships have laid down:–
“It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.”
The rule in the aforesaid case has received explicit approval of their Lordships of the Supreme Court on several occasions and the dictum is beyond dispute.
12. The reasoning indicated in the remand order Ext. P was expressed by the
learned Additional Collector in the following way–
“The pleader for the appellant (plaintiff) argued that he was in possession of these plots even after the sale of their Interest in the touzi. He has obtained rent receipts from the previous landlords.
The learned Tahasildar has passed orders without making enquiry at the spot verification, verification of the spot is also necessary in all such cases.
In view of the possession of the lands by the appellant. J remand the case to the lower court for recording documentary and oral evidence of both the sides and the final orders passed on merits after visiting the spot, if necessary.”
The Collector under the Estates Abolition Act visited the spot on 18-7-62 and made an enquiry with reference to possession. In a part of his final order Ext. J he stated–
“On perusal of records, it was seen that all these plots (objected plots) along with other plots as per annexures ‘A’ to ‘H’ have been recorded as Dakhal (possession) — Padmamani Dei and Dakhal (possession) — Jema Dei in the last settlement, names of whom were subsequently changed. In Register ‘D’ and in Gazette Notification dated 22-1-54, name of the applicant Hemamani Dei (Biswal) along with other co-sharers have been declared as ex-zamindars of the estate bearing touzi No. 674. Accordingly, after perusal of records and documents the then Tahsildar and Collector under Sections 6 and 7 of the O.E.A. Act he had passed orders for fixing rent in favour of the ex-zamindar Hemamani Biswal.
In view of the above facts and in the absence of any definite and concrete proof. I am not in a position to declare the right and title over the disputed plots in favour of the O. P. (Plaintiff)–Shri Mohapatra in face of settlement records. …….”
13. There is no room to doubt after examining this order that the Estates Abolition Collector was aware of the requirement of the possession on the material date and on the basis of the evidence alreadv on record and the material collected by him by spot visit, he was satisfied that the applicant (defendant No. 1) was entitled to settlement under Section 6 of the Act. This order was admittedly passed in the presence of the plaintiff.
14. It is not the case of the plaintiff that the Estates Abolition Collector did not act in conformity with the fundamental principles of judicial procedure. The entire allegation is confined to the fact that he did not find possession on the date of vesting as required under Section 6 of the Estates Abolition Act. The contention raised by Mr. Mohapatra was
confined to the point that in the absence of finding of possession on the date of vesting, the Collector under the Act had no jurisdiction to direct fixation of fair and equitable rent. As I have already said, it is difficult to hold on the basis of Ext. J and the background revealed by the appellate order of remand that the Estates Abolition Collector was not alive to the requirement of possession on the date of vesting and had actually not recorded a finding to that effect. Ext. J read as a whole clearly gives the impression of such a finding having been the basis of the ultimate order. I must, therefore, hold that in Ext. J it has been found that the defendant No. 1 who was the applicant in the Rent Fixation case was in possession on the date of vesting. Once that is found, it would follow that the Estates Abolition Collector had jurisdiction to make the order as required under the statute and the only ground of challenge must fail.
15. In the case of Desika Charyulu v. State of Andhra Pradesh, AIR 1964 SC 807, their Lordships of the Supreme Court were examining a case of jurisdiction on such score. Ayyangar, J. spoke for the Court thus–
“This result would be sufficient to demonstrate the impossibility of accepting the construction for which the appellant contends. The very provision setting up an hierarchy of judicial tribunals for the determination of the question on which the applicability of the Act depends, is sufficient in most cases for inferring that the jurisdiction of the Civil Courts to try the same matter is barred. In addition we have the provision in Section 9(4) (c) read with Section 9(6) to which we have adverted. In these circumstances, we have no hesitation in holding that to the extent of the question stated in Section 9(1), the jurisdiction of the Settlement Officer and of the Tribunal are exclusive and that the Civil Courts are barred from trying or retrying the same question. We should, however, hasten to add that this exclusion of jurisdiction would be subject to two limitations. First is the reservation made by Lord Thankerton in AIR 1940 PC 105 at p. 110, where, after holding that the provisions of the Sea Customs Act setting up a special machinery for the adjudication of the correct duty leviable under the Act barred recourse to the Civil Courts to question the correctness of the decisions of the Authorities acting under that enactment added:
‘It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conform
ity with the fundamental principles of judicial procedure’.
The scope of the exception here made was the subject of examination by this Court in the case of Firm of Illuri Subbayya Chetty v. State of Andhra Pradesh, AIR 1964 SC 322 where Ganjendragadkar, J. speaking for the Court said:
‘Non-compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute.’
It is only necessary to add that no question envisaged by Lord Thankerton or referred to by Gajendragadkar, J. is raised in the appeal before us and it is therefore unnecessary for us to examine, in the present appeal either, the precise limits of this exception.
The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. Lord Esher formulated the point thus in the Queen v. Commr. for Special Purposes of the Income-tax, (1888) 21 QBD 313 at pp. 319-320:
‘When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does
exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases, I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.’
It is manifest that the answer to the question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors.”
16. It is clear that the jurisdiction of the Estates Abolition Collector is of the second type referred to by Lord Esher M. R. I have already found that the Collector under the Estates Abolition Act had actually kept in view the possession on the relevant date and decided in favour of the defendant No. 1. An appeal though provided was not availed of The present proceeding is certainly collateral and once it is found that the Estates Abolition Collector had acted within his jurisdiction, the matter is not open to challenge.
17. Mr. Mohapatra wanted to distinguish the case of Brij Raj Krishna v. S.K. Shaw and Brothers, AIR 1951 SC 115, by saying that their Lordships of the Supreme Court were dealing with the Bihar Buildings (Lease, Rent and Eviction) Control Act where by express terms of that statute, the Controller had been conferred the jurisdiction to determine whether the tenant was in arrears of rent and had thus entailed the liability of being evicted; whereas in the present case, the Estates Abolition Collector was to get jurisdiction only on the footing that on the date of vesting the applicant was in possession. I do not think that the Rule laid down in the aforesaid decision can be distinguished on such score. The jurisdiction conferred upon the Estates Abolition Collector appears to be quite wide and extensive. Certain normal civil disputes have been specifically taken within the jurisdiction of the Estates Abolition Collector and in respect of such matters, the Civil Court’s jurisdiction has, been excluded. Whether, an intermediary is in possession on the date of vesting or not is a matter within the exclusive jurisdiction of the Collector to determine.
Under Section 5 of the Estates Abolition Act, the entire estate vests subject to provisions contained in Chapter II, such as in Sections 6, 7 and 8. What shall not vest by virtue of a vesting notification and by way of exception to the omnibus consequences of vesting provided for under Section 5 of the Act is actually statutorily left to the Collector appointed under the Act. By a deeming provision contained in Sections 6 and 7, in certain eventualities, the intermediary is entitled to hold the property. But a time is indicated and a procedure has been laid down for making an application for fixation of fair and equitable rent. On the failure to make the application in the statutory process, the disastrous result is indicated in Section 8-A (3) of the Act. The deemed settlement under Sections 6 and 7 lapses and the consequences of the vesting under Section 5 operate. In this background when the legislative intent is apparent, the question of possession for the purposes of granting a settlement must be taken certainly to be completely within the jurisdiction of the Estates Abolition Collector in the same manner as ordering eviction of a tenant for non-payment of rent is within the exclusive jurisdiction of the, controller. Whether the intermediary is in possession on the relevant date is not a jurisdictional fact, but is the basis for disposing of the claim. The Estates Abolition Collector has full jurisdiction to decide the dispute as the civil court determines the claim for settlement on the finding of possession on the date of vesting. I do not think, Mr. Mohapatra’s stand with reference to the decision in AIR 1951 SC 115 is correct. Fazl AH, J. who spoke for the Court had also referred to the proposition laid down by Lord Esher, M. R. and came to hold–
“There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is nonpayment of rent or not, as well as the jurisdiction, on finding that there is nonpayment of rent, to order eviction of a tenant. Therefore, even if the Controller may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a Civil Court.”
18. In my view this is the right reasoning especially to be applied to the present case. It must be held that whether the ex-intermediary was in possession on the material date is a matter exclusively within the jurisdiction of the Collector under the Act and upon the conclusion which I have already arrived
at, it must be held that he had recorded a finding as required under the statute. Its erroneous character is not open to examination in the Civil Court.
19. While there is material that the defendant No. 1 applied and got settled with fair and equitable rent, there is no material that the plaintiff made an application. The plaintiff’s claim of tenancy after the disposal of the proprietary right under the sale of 1920 has not been repelled in the lower appellate court. The plaintiff in the absence of an application under Section 6 must be taken to have been visited with the penalty under Section 8-A (3) of the Act and his right to make a claim must be taken to have been statutorily extinguished. Even if there was scope for entertaining the contention of Mr. Mohapatra on the earlier score, the mandatory direction in the statute for extinguishment of claim on account of non-preferring thereof in the statutory process is bound to work out and must be taken to have worked out so as to non-suit the plaintiff even if he had cause of action and locus standi to maintain it otherwise.
20. It was open to the plaintiff to claim as a co-sharer. If he had made such a claim, the settlement in favour of the defendant No. 1 could enure to his benefit and even after the settlement had been granted in favour of the defendant No. 1 alone, it could be contended in the civil court that that settlement was to enure to the benefit of the plaintiff as a shareholder (in case he was). But in the courts below as also here, Mr. Mohapatra has contended that Baburam and his widow, the defendant No. 1 were at best licensees. Thus, there is no scope for the said basis as well.
21. The conclusion that emerges from the aforesaid discussion is that the present suit would be not maintainable on account of the bar under Section 39 of the Act. It clearly says that in respect of a matter which has already been the subject of an application made under Chapter II of the Act, a suit would not lie. Admittedly, the Rent Fixation case referred to above was under Chapter II and thus it would follow that the present suit was not maintainable. As I have found that there is no jurisdiction to entertain this suit, I do not think it necessary to get into an examination of the facts of the case for a decision on merits. That would not be open to be done in view of want of jurisdiction.
22. On my aforesaid analysis it irresistibly follows that there is no merit in the second appeal and it is bound to be dismissed. I would accordingly dismiss the appeal and uphold the appellate judgment. But in the peculiar facts of
this case, I think it proper to direct both parties to bear their own costs throughout.