JUDGMENT
Das, J.
1. This application is directed against the order of the Subordinate Judge of Gaya in a referents made by the Land Registration Deputy Collector under Section 55 of the Land Registration Act. Mr. Hassan Imam on behalf of the applicant contended before us that the learned Subordinate Judge had no jurisdiction to deal with the matter inasmuch as the reference was invalid under the law. He also contended that, assuming the reference was a valid reference, the order must still be set aside inasmuch as the learned Subordinate Judge acted in the matter illegally or with material irregularity.
2. The contest is between the petitioner, Syed Ali Zamin, and Nawab Syed Akbar Ali commonly known as Chotey Nawab. Each of these persons claims to be the Mutwalli of the endowment of Nawab Lutfali Khan. The learned Deputy Collector who tried the question between the parties in the first instance came to the conclusion that Ali Zamin had title but had no possession and that Nawab Akbar Ali had possession but no title, He accordingly referred the matter to the Civil Court under Section 55 of the Act. The learned Subordinate Judge agreed with the learned Deputy Collector that Akbar Ali Khan was in possession of the properties in dispute. He, however, differed from the Deputy Collector on the question of title. He came to the conclusion that Akbar Ali had a good title to the properties. He accordingly certified to the Collector his determination as to the right of possession under Section 63 of the Act.
3. In my opinion the reference was not a valid one. In order to determine this point it is necessary to refer to the relevant sections of the Land Registration Act. Section 42 of the Act provides that “every person succeeding, after the commencement of this Act, to any proprietary right in any of the estate or revenue free property, whether by purchase, inheritance, gift or otherwise, and every joint proprietor of an estate or revenue free property assuming charge after such commencement of such estate or property, or of any interest therein, respectively, on behalf of the other proprietors thereof, and every person assuming charge after such commencement of any estate or revenue free property, or of any interest thereof, respectively, as manager, shall, within six months from the date of such succession or assumption of charge, make application to the Collector for registration of his name and of the character and extent of his interest as such proprietor or manager.” It will be noticed that this section makes a clear distinction between the case of “succession,” whether by purchase, inheritance, gift or otherwise, and the case of “assumption of charge,” whether as joint proprietor or as manager. The destination is an important one, as we shall presently see in connection with Section 52.
4. That section provides for the enquiry to be held by the Collector, and runs as follows: “On the day fixed in the notice issued under rectum 48, or as soon thereafter as possible, the Collector shall consider any objections which may be advanced and make such farther inquiry as appears necessary to ascertain the truth of the alleged possession of, succession to, or transfer of, the estate, revenue free property, or interest therein, in respect of which registration is applied for; and if it appears to the Collector that the possession exists, or that the succession or transfer has taken place, and that the applicant has acquired possession in accordance with such succession or transfer, but not otherwise, the Collector shall order the name of the applicant to be registered in the proper registers as proprietor or manager of the said estate, revenue free property or interest therein; provided that any person to whom any proprietary right in an estate has been mortgaged may be registered as mortgagee, whether he be in actual possession or otherwise,” It seems to me that reading Section 52 with Section 42, the Collector has the power to order the name of the applicant to be registered where, in the case of assumption of the charge, he is satisfied that the possession exists: but that in the case of succession or transfer he has no right to direct the name of the applicant to be registered unless he is satisfied, first, that the succession or transfer has taken place and, secondly, that the applicant has acquired possession in accordance with such succession or transfer. In other words, where the applicant claims to have assumed charge of the estate or property either as joint proprietor or as manager, it sufficient for him to establish that his possession exists: but where he claims to have succeeded to any proprietary right, whether by purchase, inheritance, gift or otherwise, it is necessary for him to establish not only that the succession or transfer has taken place but that he has acquired possession in accordance with such succession or transfer. In the present case there were two applicants in the land registration department, each claiming to have assumed charge of the estate or property as manager of the endowment. There was no question of succession, whether by purchase, inheritance, gift or otherwise, to be tried by the land registration department, It seems to me, therefore, that the only question which the Land Registration Deputy Collector had to determine was–did possession exist in favour of either of the applicants? He came to the conclusion that it did exist in favour of the opposite party. In my opinion he ought to have ordered the name of the opposite party to be registered as manager of the endowment.
5. The learned Deputy Collector, however, referred the matter to the Civil Court under Section 55 of the Land Registration Act. That section gives the right to the Collector to determine summarily the right to possession of (he property, or, if he be of opinion that the dispute can more properly be determined by a Civil Court, to refer the matter in dispute to the Civil Court, provided it is not proved to his satisfaction that any person is in possession of the interest in dispute. In other words, the jurisdiction either to determine summarily the question of the right to possession or to refer the matter in dispute to the Civil Court only arises where it is not proved to the satisfaction of the Collector that any person is in possession of the interest in dispute. In the present case the learned Deputy Collector was satisfied that the opposite party was in possession of the interest in dispute. In my opinion, therefore, there was no jurisdiction in the Land Registration Deputy Collector to refer the matter.
Missing Tiff Page No. 137