Sundar And Ors. vs Khuman Singh on 4 March, 1878

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Allahabad High Court
Sundar And Ors. vs Khuman Singh on 4 March, 1878
Equivalent citations: (1875) ILR 1 All 613
Author: Oldfield
Bench: Spankie, Oldfield


Oldfield, J.

1. The plaintiffs brought this suit originally for the cancelment of the orders of the Deputy Collector and Settlement Officer relating to the formation of the record-of-rights, over which the Civil Court has no jurisdiction, at the same time asking that they might disburse the village-expenses as before. The Court of First Instance rejected the plaint, and the lower Appellate Court reversed this order and remanded the case for trial, with an intimation that the plaintiff was at liberty to amend the plaint, and in special appeal this Court did not interfere with this order. The plaint was not amended till the 24th July, and on the same day the Court of First Instance decided the case, after directing that the amended plaint should be filed with the record, and after the defendant had filed an answer to the amended plaint, and after evidence had been taken, which, however, was taken before amendment of the plaint. The Court of First Instance held that, notwithstanding the amendment of plaint, the suit was not cognizable by the Civil Court. The plaint as amended is for establishment of the plaintiffs’ right as hitherto to make collections of rent from certain cultivators, and to defray the village-expenses themselves on their share of the estate; this right having, it appears, been interfered with by the Settlement Officer’s order, by which the defendant’s right was recognised to collect these rents and to take them for defraying village-expenses. The lower Appellate Court also held the suit on the amended plaint not to be cognizable. Both Courts seem to consider that in substance there is no difference in the two plaints in the relief sought, that the object of the amended plaint is substantially to cancel an order of the Settlement Officer affecting the record-of-rights, although not stated in so many words, and that such a suit cannot be entertained under Section 241 of Act XIX of 1873; and the Judge seems further to consider that, inasmuch as the plaintiffs appealed from the Deputy Collector’s orders to the Settlement Officer and failed, they are debarred from bringing this suit.

2. The view which the lower Courts have taken is erroneous. In the order of this Court in special appeal the Court pointed out the distinction which exists between that portion of the plaintiffs’ claim in which they ask for the Court’s interference with the formation of the record-of-rights, and that portion in which they ask to have declared their right to make certain collections of rent and defray village-expenses themselves.

3. The law enacts (Section 241) that no Civil Court shall exercise jurisdiction in the matter “of the” formation of the record-of-rights”; but the matter of the formation of a record is clearly not the same thing as the question of the rights which its entries record. The Civil Court may not alter or amend the record or give directions in respect of it, because the formation and maintenance of the record and correction of errors in it has been made by Sections 62 and 94 of Act XIX of 1873, a matter peculiarly within the province of the Revenue Court. That was the object with which that part of Section 241 above cited was enacted, but it was not intended to debar Civil Courts from entertaining and deciding questions of rights between parties merely because those questions may have been made the subject of entries in the record, and because the decision of the Civil Court may show that they are wrong and need correction. Sections 62 and following sections detail what the contents of the record-of-rights shall be, and the principle on which it is to be prepared, and the powers which the Settlement Officer shall exercise in its preparation; and Section 91 goes no further than to declare that “all entries in the record so made and attested shall be presumed to be true until the contrary is proved.” To so much weight the entries are entitled by a Civil Court, and Section 241 has been misinterpreted by the lower Appellate Court, and was not intended to bar the jurisdiction of the Civil Courts in respect of the determination of questions of right merely by reason of the record-of-rights treating of them. How far the question raised in this suit has been determined in the Settlement Department, and how far any such determination may be binding, we are not in a position to say, as the case has not been tried at all by the Court of First Instance. We reverse the decrees of both Courts and remand the suit to the Court of First Instance for retrial. Costs to abide the result.

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