Tota Ram And Ors. vs Har Kishan And Ors. on 6 December, 1884

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Allahabad High Court
Tota Ram And Ors. vs Har Kishan And Ors. on 6 December, 1884
Equivalent citations: (1885) ILR 7 All 224
Author: W C Petheram
Bench: W C Petheram, Oldfield, Brodhurst, Mahmood, Duthoit


W. Comer Petheram, C.J.

1. The matter in issue in this suit is, whether the defendants are inferior proprietors or lessees of certain land. This same question arose before the Settlement Officer. He decided that the defendants were inferior proprietors and not lessees. If he had jurisdiction to try this question, the matter is res judicata. Section 13 of the Civil Procedure Code says: “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court of jurisdiction competent to try such subsequent suit, or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” In the first place, there has been no litigation properly so called, and secondly, there was no competent Court. The Settlement Officer is said to have acted under Sections 62 and 64 of the Land Revenue Act. But those sections show that the entries are to be made on the basis of possession; they are to be entries of existing rights, there being no dispute as to rights. There is no provision in the Act which gives the Settlement Officer power to settle rights. His decision in this case is not, therefore, a binding decision. In my opinion, Section 13 of the Civil Procedure Code is not a bar to the institution of the present suit.

Mahmood, J.

2. I am of the same opinion as the learned Chief Justice. The dispute between the parties to this case constitutes a suit of a civil nature within the meaning of Section 11 of the Civil Procedure Code, and would therefore be the subject of adjudication by the Civil Courts, unless it is shown that its congnizance is barred by any legislative enactment. The learned pleader for the respondents endeavoured to show that the matter of the dispute fell under the purview of Clause (g) of Section 241 of the Revenue Act, and that as the Settlement Officer must be taken to have acted under Section 56 of that Act, his order was within jurisdiction, and formed an adjudication which would bar the present suit under Section 13 of the Civil Procedure Code. The learned pleader also referred to Section 62 and 64 of the Revenue Act, but none of these sections can either be understood to bar the jurisdiction of the Civil Courts in respect of disputes of this nature, or to confer power on Settlement Officers to adjudicate upon rights such as are in issue in this litigation. To substantiate the plea of res jadicata it is essential to show that the former adjudication was by a Court of compatent jurisdiction; but the Settlement Officer cannot be regarded as such a Court, and there was no adjudication.

3. For these reasons I am unable to agree in the rule laid down in Rup Singh v. Sukhdeo, Weekly Notes 1882 p. Ill on which both the lower Courts have relied, and my answer to the question referred to us is in the negative.

Oldfield, Brodhurst, and Duthoit, JJ.,

4. concurred.

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