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PETITIONER: NAINSINGH

       Vs.

RESPONDENT: KOONWARJEE AND OTHERS

DATE OF JUDGMENT: 02/04/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C.

CITATION:  1970 AIR  997            1971 SCR  (1) 207  1970 SCC  (1) 749

ACT: Code of Civil Procedure (5 of 1908) s. 151-No appeal against order  of remand-Scope of Appellate Court’s power on  appeal on findings after remand. Jagir  Abolition.  Act, 1951-Rights of Jagirdar to  property in respect of which suit filed before enactment of the Act.

HEADNOTE: The tenant of the appellant-a Jagirdar, died without leaving any  male  issues.  His distant  relations-the  respondents, took possession of his properties.  Thereupon the  appellant brought a suit claiming possession. of the properties as  he was  the owner.  The trial court dismissed the suit  holding that  the civil court has no jurisdiction to  entertain  the suit,  and  that in view of the Jagir  Abolition  Act,  1951 which  was enacted during the pendency of the sit  and  with the  vesting  of  the  suit properties  in  the  State,  the appellant  was not entitled to claim.  The  first  appellate court reversed these findings and held that though the  suit properties had vested in the State, it was for the State  to get  itself impleaded, and as the State had not  got  itself impleaded,  it was open to the appellant to press the  suit. In  view of these conclusions, the appellate court  demanded the  suit to decide the other undecided issues.   After  the remand, the trial court negatived the respondents-defendants contention and decreed the suit.  In appeal that decree  was affirmed.  In second appeal, the High Court agreed with  the courts  below  on  all issues except that  relating  to  the effect of abolition of Jagirs.  It held that under the Jagir Abolition  Act,  the appellant lost his title  to  the  suit properties.  In its view that issue was not concluded by the decision  of the appellate court made before remand  as  the same  had  not been appealed against, since  the  court  had inherent  power to consider the correctness of  that  order. In appeal, this Court: HELD  : The case must be remanded for determination  of  the right  of  all the parties after impleading the State  as  a party. The  correctness of the remand order was not open to  review by  the  High Court.  The order in question was  made  under rule  23,  Order 41, Civil Procedure Code.  That  order  was

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appealable under Order 43 of that Code.  As the same was not appealed  against,  its  correctness was  no  more  open  to examination  in  view of s. 105 (2) of the Code  which  lays down  that where any party aggrieved by an order  of  remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness.  The High  Court  has  misconceived the  scope  of  its  inherent powers.  Under the inherent power of courts recognised by s. 151,  Civil Procedure Code, a court has no power to do  that which  is prohibited by the Code.  Inherent jurisdiction  of court must be exercised subject to the rule that if the Code does  contain  specific  provisions  which  would  meet  the necessities of the case, such provisions should be  followed and inherent jurisdiction should not be involved.  In  other words the court cannot make-use of the special provisions of s.  151  of the Code where a party bad his  remedy  provided elsewhere in the Code and be neglected 208 to  avail himself of the same.  Further the power  under  s. 151 of the Code cannot be exercised as an appellate power. The  appellant-Jagirdar had not lost all rights in the  suit properties.  The suit properties vested in the State in view of the Jagir Abolition Act.  But it was conceded at the  bar that  if the appellant was proved to have been the owner  of the suit properties on the day the Jagir Abolition Act  came into force, he was entitled to the compensation provided  in that  Act.   Therefore  the  appellant  was  interested   in establishing that on the date Jagir Abolition Act came  into force, he was the full owner of the suit properties. [210 C] Himatrao  v.  Jaikishandas  and Ors. [1931]  3  S.C.R.  815; followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1460 of 1966. Appeal  by special leave from the judgment and decree  dated April  30,  1965 of the Madhya High Court, Indore  Bench  in Second Appeal No. 209 of 1962. G. L. Sanghi, P. C. Bhartari, for the appellants. Rameshwar Nath, for respondents Nos. 1 to 4. The Judgment of the Court was delivered by Hegde, J. The only question, that falls for decision in this appeal by special leave is as to the application of s.  151, Civil  Procedure  Code to a remand order falling  within  s. 105(2) of that Code. The facts leading upto the point under consideration may now be stated.  The appellant was the Jagirdar of the suit  pro- perties.  One Bhagirath was his tenant.  The said  Bhagirath died  in the year 1947 leaving behind no male  issues.   His wife  had  predeceased him.  He had two daughters  who  were living  at  the  time  of  his  death.   After  his   death, defendants  Nos. 1 to 5 who are his distant  relations  took possession  of  the suit properties and I  got  the  revenue records  changed in their names.  Thereafter  the  appellant brought  the  suit  under -appeal  seeking  the  following reliefs (1)  to declare that he is the owner of the suit properties; (2)  to quash the order of the Tehsildar dated  November  8, 1949 transferring the khata relating to the suit  properties to  the names of Defendants 1 to 5; (3) to grant  possession of  those properties to him and (4) other  usual  incidental reliefs. The   defendants  resisted  the  plaintiff’s  claim.    They contended  inter  alia  that  (1) the  civil  court  had  no

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jurisdiction  to entertain ,the suit; (2) the plaintiff  had lost  right over the suit properties in H view of the  Jagir Abolition-Act,  1951  which came into force on  December  4, 1952  during  the  pendency  of the suit  and  (3)  the  1st defendant being the adopted son of Bhagirath is entitled to 209 the possession of the suit properties.  In the suit  several issues. were raised. it is not necessary to refer to them in view  of the limited scope of this appeal.  The trial  court dismissed   the  suit  upholding  the  contention   of   the defendants  on two issues viz. (1) that the civil court  had no  jurisdiction to entertain the suit and (2) that in  view of  the  Abolition  of Jagirs and the vesting  of  the  suit properties in the State, the plaintiff can claim no  relief. The first appellate court reversed the findings of the trial court  on those issues.  It came to the conclusion that  the civil  court  had jurisdiction to entertain  the  suit.   It further  held  that though in view of the abolition  of  the jagirs, the suit properties had vested in the State, it  was for the State to get itself impleaded if it is interested in this  litigation  and  as the State had not  chosen  to  get itself impleaded, it was open to the plaintiff to press  the suit.  In view of those conclusions, the appellate court set aside the decree of the trial court and remanded the suit to the   trial  court  for  deciding  the  other  issues   left undecided.   After  the remand, the  trial  court  negatived every  one  of the contentions taken by the  defendants  and decreed  the suit as prayed for.  In appeal that decree  was confirmed.   In  second appeal the High  Court  of  Madhya Pradesh agreed with the trial court and the appellate  court on  the  findings given on all issues  excepting  the  issue relating  to  the effect of abolition of the jagirs  on  the suit.  On that issue, it came to the conclusion that in view of  the abolition of jagirs under the Jagir  Abolition  Act, the plaintiff had lost his title to the suit properties  and therefore  he could not get a decree for possession  of  the suit  properties.  It rejected the contention of the  plain- tiff  that  that issue is concluded by the decision  of  the appellate court made before remand as the same had not  been appealed  against.   It opined that the court  had  inherent power  to  consider  the  correctness  of  that  order.   It accordingly allowed the appeal and dismissed the suit. The  High Court, in our opinion, erred in holding  that  the correctness  of the remand order was open to review  by  it. The  order  in question was made under rule  23,  Order  41, Civil Procedure Code.  That order was appealable under Order 43 of that Code.  As the same was not appealed against,  its correctness  was no more open to examination in view  of  s. 105  (2)  of the Code which lays down that where  any  party aggrieved  by an order of remand from which an  appeal  lies does  not appeal therefrom he shall thereafter be  precluded from   disputing  its  correctness.   The  High  Court   has misconceived  the scope of its inherent powers.   Under  the inherent  power  of  courts  recognised  by  s.  151,  Civil Procedure  Code,  a court has no power to do that  which  is prohibited by the Code.  Inherent jurisdiction of the  court must be exercised subject to the rule that if the Code does’ contain specific provi- 210 sions  which  would meet the necessities of the  case,  such provisions  should  be followed  and  inherent  jurisdiction should not be invoked.  In other words the court cannot make use of the special provisions of s. 151 of the Code where  a party had his remedy provided ,elsewhere in the Code and  he neglected to avail himself of the, same.  Further the  power

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under S. 151 of the Code cannot be exercised as an appellate power. We are also of the opinion that the High Court is not  right in holding that in view of the abolition of the Jagirs,  the plaintiff had lost all rights in the suit properties.  It is true  that in view of the provisions of the Jagir  Abolition Act,  the suit properties vested in the State.  But  it  was conceded at the bar that if the plaintiff is proved to  have been  the owner of the suit properties on the day the  Jagir Abolition  Act came into force, he is entitled to  the  com- pensation provided in that Act.  Therefore the plaintiff  is interested in establishing that on the date Jagir  Abolition Act  came  into  force, he was the full owner  of  the  suit properties.   The  facts of this case fall within  the  rule laid down by this Court in Himatrao v. Jaikishandas and Ors. (1).   On  the facts of this case the interests  of  justice would have been better served if the High Court had  ordered the impleading of the State of Madhya Pradesh in the  appeal before.  it  and determined the rights of  all  the  parties finally. Hence we set aside the decree of the  High  Court and remand the case to that Court with a direction that  the State  of Madhya Pradesh should be impleaded and the  rights of  all the parties decided in accordance with law., In  the circumstances  of the case we make no order as to  costs  of this appeal. Y.P.                                    Case remanded. (1) [1963] 3 S.C.R, 815 211