JURISDICTION Case laws:

ABDUL WAHEED KHAN Vs. BHAWANI AND ORS.

ACT: Bhopal State Land Revenue Act (4 of 1932), ss. 71, 89, 93, 95 and 200(1)-Suit based on title-If
barred by decision of revenue officer.

The present contention : is that the said decree was given by a court of exclusive jurisdiction(revenue
court ) and, therefore, the respondents could not reagitate the same subject matter in a civil court.

The lower courts and the High Court held that the decision of the revenue court did not bar the
jurisdiction of the civil court on the question of title to the suit land and decreed the suit.

Under s. 9 of the Code of Civil Procedure, a civil court can entertain a suit of a civil nature except a
suit of which its cognizance is either expressly or impliedly barred. It is settled principle that it is for
the party who seeks to oust the jurisdiction of a civil court to establish his contention. It is also
equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed.

It is, therefore, clear that s. 200(1) of the Act, read with the said group of sections, does not exclude
the jurisdiction of a civil court to entertain a suit based on title.

In appeal to this Court, (SC)

HELD : Section 200(1) of the Act, read with ss. 71, 89, 93 and 95, does not exclude the jurisdiction of
the civil court to entertain a suit based on title. [621 E-F] Section, 200(1) bars the civil court from
entertaining a suit with respect to any matter which a revenue officer is empowered by the Act to
determine. But the question of title is a matter foreign to the scope of s. 71 . The Tahsildar is no
doubt empowered under s. 93 to decide on any dispute about any entry to be made in the Record of
rights showing the persons who are holders of land, but, under s. 95, the effect of such an entry is
only to make it a presumptive piece of evidence in a collateral proceeding such as a suit based on
title. Therefore, it is assumed that such a suit could be filed in spite of a decision under s. 93. The suit
was within time under Art. 142, Limitation Act, 1908, and since the High Court and the lower courts
held that the presumption raised by the entry was rebutted by the oral and documentary evidence
adduced by the respondents, the correctness of the concurrent findings of fact could not be
canvassed in the appeal under Art. 136. [621 B, C; 622 B, C]
GANGA BAI Vs. VIJAY KUMAR & ORS.

ACT: C.P.C.--Amendment of the Memo of Appeal after 7-1/2 years without any application of
condonation of delay or good cause shown--Whether proper--Appeal against a mere finding of fact--
Whether maintainable.

HELD : (i) There is a basic distinction between the right of suit and the right of appeal. There is an
inherent right in every person to bring a suit of at civil nature, but the right of appeal inheres in no
one and therefore an appeal for its maintainability must have the clear authority of law.

The various provisions in the C.P.C. show that under the Code, an appeal lies only as against a decree
or as against an order passed under rates from which an appeal is expressly allowed by Order 43,
Rule 1. No appeal can lie against a mere finding for the simple reason that the Codes does not
provide for any such appeal. Therefore, the first appeal filed by. Defendants 2 and 3 in the High Court
was not maintainable as it was directed against a mere finding recorded by the trial court. [886 D-H]
(ii) The High Court should not have allowed the amendment of the Memo of Appeal particularly
when defendants 2 & 3 had neither explained the long delay nor sought its condonation Defendants
2 & 3 were not denied by the preliminary decree the right to pay the decretal amount and the two
defendants could even have applied under Order 21, Rule 89 for setting aside the sale in favour of
the appellant; but they failed to do so. The preliminary decree had remained unchallenged since
September, 1958 and by lapse of time a valuable right had accrued in favour of the decree-holder.
Therefore, to allow the amendment after such a long time without a good cause was not a proper
exercise of judicial discretion in the circumstances of the case. [888 D-E]

There is a basic distinction between the right of suit and the right of appeal:

There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred
by statute one may, at one’s peril, bring a suit of one’s choice. It is no answer to a suit howsoever
frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no
authority of law and it is enough that no statute bars the suit.

But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and
therefore an appeal for its maintainability must have the clear authority of law. That explains why the
right of appeal is described as a creature of statute. Under section 96(1) of the Code of Civil
Procedure, save where otherwise expressly provided by the Code or by any other law for the time
being in force, an appeal lies from every decree passed by any court exercising original jurisdiction, to
the court authorised to hear appeals from the decisions of such court. Section 100 provides for a
second appeal to the High Court from an appellate decree passed by a court subordinate to the High
Court. Section 104(1) provides for appeals against orders of the kind therein mentioned and ordains
that save as otherwise expressly provided by the Code or by any law for the time being in force an
appeal shall lie "from no other orders". Clause (i) of this section provides for an appeal against "any
orders made under Rules from which an appeal is expressly allowed by rules". ’Order 43, Rule 1 of
the Code, which by reason of clause (i) of section 104(1) forms a part of that section, provides for
appeals against orders passed under various rules referred to in clauses (a) to (w) thereof, Finally,
section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie
from any order made by a court in exercise of its original or appellate jurisdiction. These provisions
show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an
order passed under, rules from which an appeal is expressly allowed by Order 43, Rule 1. 887 No
appeal can lie against a mere finding for the simple reason that the Code does not provide for any
such appeal. It must follow that First Appeal No. 72 of 1959 filed by defendants 2 and 3 was not
maintainable as it was directed against a mere finding recorded by the trial court.

The power to allow an amendment is undoubtedly wide and may at any stage be appropriately
exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-
reaching discretionary powers is governed by judicial considerations and wider the discretion,
greater ought to be the care and circumspection on the part of the court. The appeal in terms was
originally directed against the finding given by the trial court that the partition was sham and
colourable. "Being aggrieved by the finding given in the Judgment and the Decree........... it is humbly
prayed that findings given by the learned Judge in Para 34 of his Judgment may kindly be set aside,
and instead the partition deed dated 11-1-56 may kindly be declared as genuine"--So ran the
Memorandum of Appeal. Defendants 2 and 3 reiterated through their counsel by Ming a note to
explain the payment of fixed court fees of Rs. 20 that they were "seeking the relief of declaration
only" and therefore the court fee paid was proper and sufficient. Long years thereafter, the High
Court allowed the Memorandum to be amended not a reason was cited to, explain the delay and not
a reason was given to condone it. And it was not appreciated that in granting time to defendants 2
and 3 to make up the deficit of the court fees 71 years after the appeal was filed, an amendment was
being allowed which had its impact not only on the preliminary decree but on the final decree which
was passed in the meanwhile, the auction sale which was held in pursuance of the final decree and
the sale certificate which was granted to _the appellant who, with the leave of the court and in full
satisfaction of her decree, had purchased a joint 1/3 share in the mortgaged property. With the
striking down of the preliminary decree, these proceedings had to fall but the error really lay in
allowing the amendment so as to permit, without good cause shown, a belated challenge to the
preliminary decree. One other aspect of the question relating to the maintainability of the appeal yet
remains to be examined. Counsel for the respondents. argues that the finding of the trial court on
the issue of partition would have operated as res judicata against them and they were therefore
entitled to appeal therefrom. In Harchandra Das v. Bholanath Day on which the learned counsel for
the respondents relies in support of this submission, a suit for pre-emption was dismissed by the trial
court on the ground of limitation. In an appeal filed by the plaintiff, the District Court reversed that
finding but confirmed the decree dismissing the suit on the ground that the sale effected by
defendants 4 and 5 in favour of defendants 1, 2 and 3 was not validly registered and there being no
"sale", there can be no right of pre-emption. Defendants 1 to 3 preferred an appeal to the High Court
against the finding recorded by the District Court that the sale effected in their favour by defendants
4 and 5 was not valid as it was not lawfully registered. On a preliminary objection raised by the
plaintiffs to the maintainability of the appeal, the High Court of Calcutta, held that though under the
Code of Civil Procedure there can be no appeal as against a mere finding, "it may be taken to be the
view of courts in India generally, that a party to the suit adversely affected by a finding contained in a
judgment, on which a decree, is based, may appeal; and the test applied in some of the, cases for the
purpose of determining whether a party has been aggrieved or not was whether the finding would
be res judicata in other proceedings". The High Court, however, upheld the preliminary objection on
the ground that the issue regarding validity of the sale which was decided against defendants 1 to 3
would not operate as res judicata in any subsequent proceeding and therefore the appeal which was
solely directed against the finding on that issue was not maintainable. The position here is similar to
that in the Calcutta case.

The trial court decreed the mortgagee"s suit only as against defendant 1, the father, and directed the
sale of his one half interest in the mortgaged property on the ground that part of the consideration
for the mortgage was not supported by legal necessity, the remaining part of the consideration was
tainted with immorality and therefore the mortgage was not binding on the interest of the sons,
defendants 2 and 3. Whether the partition between the father and sons was sham or real had no
impact on the judgment of the trial court and made no material difference to the decree passed by
it. The finding recorded by the trial court that the partition was a colourable transaction was
unnecessary for the decision of the suit because even if the court were to find that the partition was
genuine, the mortgage would only have bound the interest, of the father as the debt was not of a
character which, under the .Hindu law, would bind the interest of the sons. There is no substance .in
the submission made on behalf of the sons that if the partition was held to be genuine, the property
would have been wholly freed from .the mortgage encumbrance. The validity or the binding nature
of an .alienation cannot depend on a partition effected after the alienation; or else, a sale or a
mortgage effected by the Karta of a joint-Hindu family ,can easily be avoided by effecting a partition
amongst the members of .the joint family. As the matter relating to the partition was not directly and
substantially in issue ’in the suit, the finding that the partition was sham cannot operate as res
judicata. Therefore, the appeal filed by defendants 2 and 3 against that finding was not maintainable,
even on ,,the assumption that the High Court of Calcutta is right in its vie", that though under the
Code there could be no appeal against a finding, ,yet "On grounds of justice" an appeal may lie
against a finding provided that it would operate as res judicata so as to preclude a party aggrieved by
the finding from agitating the question covered by the .finding in any other proceeding. It is not
necessary here to determine ,whether the view of the Calcutta High Court is correct. For these
reasons we allow the appeal with costs, set aside the judgment of the High Court and restore that of
the trial court.