Laxmibai Vs. Madhankar Vinayak Kulkarni and ors. - Court Judgment

Excerpt:
- constitution of india .article 26-a: [cyriac joseph cj, mrs. manjula chellur & n. kumar, jj] right to establish and maintain educational institution - held, the right to establish and maintain educational institution is also conferred on every religious denomination or any section thereof, irrespective of the fact that they belong to majority or minority community in the nation, under article 26(a) of the constitution. education is per se regarded as an activity that is charitable in nature. education is a recognized head of charity. therefore a right to establish and maintain institution for charitable purposes includes a right to establishment and administration of educational institution. however, it is a right not conferred on individuals but on a religious denomination or a section of such denomination. in other words, it is a collective right to citizens belonging to every religious denomination or section thereof. in so far as the rights conferred on religious denominations under article 26 is concerned, the said right is always subject to public order, morality and health. article 29(1) : right of any section of the citizens residing in india or any part thereof and having a distinct language, script or culture of their own, to conserve the same. held, article 29(1) applies to any section of the citizens. in other words, it applies to majority and minority, that is, to all citizens. all of them have a fundamental right to protect their language, script or culture and conserve the same. article 29(1) do not control the rights conferred under article 30(1) on minorities. article 30(1) is an independent article conferring on all religious and linguistic minorities, a right to establish and administer educational institutions of their choice. it does not say that minorities based on religion should establish educational institutions for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their languages only. what the article says and means is, that the religious linguistic minorities should have the right to establish educational institutions of their choice. therefore, the educational institutions of their choice will also necessarily include institutions imparting general secular education. it also includes the right to choose the medium of instructions of their choice other than the mother tongue of the child or the language of the said linguistic minority. the words of their choice which qualify educational institutions shows the vast discretion and option which minorities have in selecting the type of the institution which they want to establish. the said type of institution includes the type of medium of instruction in which they want to impart education. the dominant word is choice and the content of that article is as wide as the choice of the particular community may make it. article 30(1): right of religion and language of minorities, a right to establish and administer educational institution of their choice - held, the right under article 30(1) is not so absolute as to prevent the government from making any regulation whatsoever. though the right flowing under article 30(1) is held to be absolute, the apex court has read into this article the concept of the said right being subject to a regulation protecting national interest. however, the only limitation on the power of the government while framing regulation is, that it cannot destroy the minority character of the institution or make the right to establish and administer, a mere illusion. the regulation so framed must satisfy the dual test. the test of reasonableness and the test that it is regulative of the educational character of the institution. the object of the said regulation should be to achieve excellence of standard of education and check mal-administration. if it is a restriction and negates the right conferred under article 30(1) then the said restriction would be void ab initio and the restriction should yield to the said fundamental right. that is the essence of the right guaranteed under article 30(1) of the constitution on the linguistic and religious minority, thus protecting these minorities from the onslaught of the majority. article 141; [cyriac joseph cj, mrs. manjula chellur & n.kumar, jj] law declared by the supreme court - binding nature of ratio decidendi - what constitutes - held, the ratio of the judgment is what is set out in the judgement itself. the ratio decidendi of the judgment is its reasoning which can be deciphered only upon reading the same in its entirety. by reading a line here and there from the judgment one cannot find out the entire ratio decidendi of the judgment. it is the principle found out, upon a reading of a judgment as a whole, in the light of the questions before the court that forms the ratio and not any particular word or sentence. a decision is an authority on the question that is raised and decided by the court, and it is an authority for what it decide and not what can logically be deduced thereupon. the ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. on facts, held, the full bench struck down the earlier government order as there was compulsion to study kannada and therefore violative of article 19,21 and 30(1) which finding was upheld by the supreme court. for the same reason the supreme court declined to interfere with the subsequent government order dated 19.6.1989 as there was no compulsion to study any particular language from i to iv standard, as is clear from clause-i of the government order. therefore, the ratio decidendi, of the judgment of the apex court as well as the full bench is if there is an element of compulsion in the government policy, which infringes the fundamental rights guaranteed to the citizens of this country under the indian constitution, such policy is void and the fundamental rights have to prevail over such governmental policy. in the absence of such compulsion the courts should not interfere with the policy decision of the government. the question whether a student, a parent or a citizen has a right to choose a medium of instruction at primary stage other than mother tongue or regional language was not the subject matter of the aforesaid proceedings and the said question was not considered either by this court or by the apex court and no decision rendered in the aforesaid proceedings on the said point. therefore the contention that the question involved in this writ petition are squarely covered by the earlier decisions of this court and apex court is without any substance and accordingly it is rejected.-- articles 19(1)(a) & (g) r/w article 21(a): freedom of the children to have primary education in a language of their choice held, article 19(1)(a) declares that all citizens shall have the right to freedom of speech and expression. the medium of acquiring knowledge or information should be the choice of the person acquiring the knowledge. in what language the instructions are to be taken or imparted should be the choice of the student or the person imparting education. there cannot be any compulsion regarding the medium of instruction. if there is compulsion, then it would amount to the violation of a human right apart from the fundamental right to freedom of speech and expression. medium of instruction is a species of right to information. therefore, the right to medium of instruction of their choice is implicit in this freedom of speech and expression. when right to education is a fundamental right and in particular by article 21-a, a fundamental right is conferred on all children of the age of six to fourteen years to have free and compulsory education, which is popularly known as primary education. the state has been conferred power under the said article to provide for free education in such a manner as the state may, by law, determine. if this article 21-a is read with article 19(1)(a) all children have the freedom to have primary education in a language of their choice as it is implicit in the right to freedom of speech and expression, the right to study or get instruction in a language of their choice as it is implicit in the right to freedom of speech and expression, the right to have primary education is a medium of instruction of their choice is enshrined in article 19(1)(a) read with article 21-a of the constitution. as this right is conferred on all citizens under article 19(1) (a), the said right is also that of the parents of the child, who are interested in educating their child and on whom a fundamental duty is cast under article 51-a(k), which provides that it shall be the duty of every citizen of india, who is a parent or guardian to provide opportunities for education to his child between the age of six and fourteen years. both these articles, i.e., 21-a and 51-a(k) were introduced by way of eighty sixth amendment to the constitution in the year 2002, conferring a right on the child and an obligation on the parent of the child regarding primary education. these two articles along with 19(1)(a) confers on the child as well as the parent a fundamental right to choose the medium of instruction of their choice.-- articles 19 (1) (a) & (g), 21,26,29(1) & 30(1): right to choose medium of instructions, whether is a fundamental right -interpretation of articles 19(a) (g), 21,26,29(1) & 30(1) held, right to education is a fundamental right, which also includes the right to choose the medium of instruction. the medium of instruction is one aspect of freedom of speech and expression. the freedom of speech and expression includes right to receive and acquire information and to disseminate it. it also includes right to educate, right to be educated, right to inform and right to be informed and entertained. the choice must be of the student and the parent. the states duty is only to provide and create an atmosphere, where the child can have education in a medium of its choice. it cannot compel the student to choose a particular medium of instruction. the right to establish and administer educational institutions of their choice under article 30(1) read with article 29(1) would include the right to have choice of medium of instruction in imparting education. the medium of instruction is to be entirely the choice of the management concerned. therefore, it can be declared that the right to choose a medium of instruction of their choice is a fundamental right under article 19(1)(a)(g), 21,26,29(1) and 30(1) of the constitution of india. article 226 & 227: [cyriac joseph, cj & mrs. manjula chellur & n. kumar, jj] power of the state to decide the language of the children in primary education-right of the parents to secure primary education in the mother tongue held, the parental right in education is the very pivotal point of a democratic system. it is the touch-stone of difference between democratic education and monolithic system of cultural totalitarianism. a child is not a mere creature of the state. the parents have the right to decide as to whether their children should secure primary education in the mother tongue or not. no one can question the constitutional right of parents to discharge their fundamental duty to educate their children by sending them to schools or colleges so long as these schools and college meet the standards established for secular education. the medium of instructions is to be entirely the choice of the parents and the student. the parents have the right to decide as to whether their children should secure primary education in the mother tongue or not. the state cannot step in and arrogate to itself the power to decide as to the language in which the children should have their primary education. therefore, it is a fundamental right of the parent and child to choose the medium of instruction even in primary school. the police power of the state to determine the medium of instruction must yield to the fundamental right of the parent and the child. articles 226 & 227: [cyriac joseph cj, mrs. manjula chellur & n. kumar, jj] government orders dated 22.4.1994 and 29.4.1994 - directions issued by the government to several schools to change the medium of instructions challenge as to -constitutional validity of grievance of the petitioner that the government orders are violative of articles 14, 19(1)(a), 21,29(2) and 30(1)of the constitution of india challenge is mainly against element of compulsion found in clause 6 of the government order under which mother tongue or kannada language shall be the compulsory medium of instruction in i to iv standards of primary schools - held, right to education is a fundamental right being a species of right to life flowing from article 221 of the constitution. by virtue of article 21-a right to free and compulsory primary education is a fundamental right guaranteed to all children of the age of six to fourteen years. the right to choose a medium of instruction is implicit in the right to education. it is a fundamental right of the parent and the child to choose the medium of instruction even in primary schools. right to freedom of speech and expression includes the fright to choose a medium of instruction. imparting education is an occupation and, therefore, the right to carry on any occupation under article 19(1)(g) includes the right to establish and administer and educational institution of ones choice - ones choice includes the choice of medium of instruction. under article 26 of the constitution of india, every religious denomination has a right to establish and maintain an institution for charitable purposes which includes and educational institution. this is a right available to majority and minority religious denominations. every section of the society which has a distinct language script or culture of its own has the fundamental right to conserve the same. this is a right which is conferred on both majority and minority, under article 29(1) of the constitution. all minorities, religious or linguistic, have a right to establish and administer education a institutions of their choice under article 30(1) of the constitution-thus, every citizen, every religious denomination, and every linguistic and religious minority, have a right to establish, administer and maintain and educational institution of his/is choice under articles 19(1)(g), 26 and 30(1) of the constitution of india, which includes the right to choose the medium of instruction. citizen shall be denied admission to an educational institution only on the ground of language as stated in article 29(2)of the constitution of india. the government policy introducing kannada as first language to the children whose mother tongue is kannada is valid., the policy that all children, whose mother tongue is not kannada, the official language of the state, shall study kannada language as one if the subject is also valid. the government policy to have mother tongue or regional language as the medium of instruction at the primary level is valid and legal, in the case of schools run or aided by the state. but, the government policy compelling children studying in other government recognized schools to have primary education only in the mother tongue or the regional language is violative of article 19(1)(g), 26 and 30(1) if the constitution of india. articles 226 & 227: [cyriac joseph cj, mrs. majula chellur & n.kumar, jj] government policy scope of judicial review held, if the government policy infringes upon or violates any fundamental rights guaranteed to the citizens of the country or is contrary to any statutory provisions or which is opposed to principles of natural justice or actuated with mala fides, then, in exercise of its power of judicial review the court can review the said policy. when a policy framed runs against the constitutional provisions, the court must as a part of its constitutional duty interfere with the said policy. in doing so, the court will be discharging its constitutional obligations, maintaining equilibrium between the three wings of the state and maintaining the rule of law. the state can formulate regulations and impose them on unaided educational institutions as a condition precedent for granting recognition to the school. such an institution will of course be subject to regulatory measures aimed at securing excellence in education and maintenance of proper academic standards, atmosphere and infrastructure and prevention of mal administration. however, under the guise of regulation, the state cannot prescribe a particular language as the sole language of medium of instruction, even if that language happens to be the mother tongue or the regional language. then it ceases to be a regulation and becomes an unreasonable restriction on the exercise of a fundamental right. then it directly infringes the fundamental right guaranteed to linguistic minorities under article 30(1) of the constitution of india, it cannot be treated as a restriction under article 19(20) and (6) of the constitution, firstly it is not a reasonable restriction, secondly, it does not fall within any of the parameters expressly provided in those provisions. any regulation which infringes a fundamental right it void ab initio. therefore, if the government policy infringes a fundamental right, by means of judicial review, the courts can restrain the unconstitutional exercise of power by the government. hence, clauses (2)(3)(6) and (8) of the impugned order in its application to schools other than schools run or aided by the government is quashed. all the orders, endorsements, circulars, issued giving effect to the aforesaid clauses (2) (3) (6) and (8) in the impugned order are also quashed. rest of the government order is upheld. article 350a; [cyriac joseph cj, mrs. manjula chellur & n.kumar, jj] facilities for instructions in mother tongue at primary stage importance of mother tongue in primary education- held, it is the mother tongue which is best suited, at the tender age, to acquire and develop literary skills, that enable fuller participation in learning activities. studies have shown that the students learn better through their mother tongue. it creates a positive, non-threatening learning environment. it helps them to express themselves with clarity and to think with precision and vigour. therefore, the first energies of the child should be directed to the through mastering of mother tongue. a childs right from its birth grows amidst the atmosphere of its mother tongue. learning in the mother tongue has cognitive and emotional value. therefore, there is no two opinion worldwide regarding the utility and importance of the mother tongue being the medium of instruction at the primary level of education. the way article 350-a is worded makes it very clear that it is not justifiable in a court of law. it only deals with facility for primary education in mother tongue to children belonging to linguistic majority groups. it does not deal with or refer to the major group in the state. by this article, an obligation was cast upon every state and every local authority within the state to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups. the responsibility of securing such education was entrusted to the president of india. in other words, the said constitutional right was not made a justifiable right in a court of law and the power to compel the state to perform its obligation was left to the discretion of the president of india. therefore, the argument that when the state is under an obligation to provide primary education in mother tongue under article 350-a, it has the power to prescribe mother tongue as the only medium of instruction is without any substance. such a power is not conferred either under article 350-a or under any provision of the constitution on the state. it is nothing to do with the government policy to have medium of instruction in the mother tongue. therefore, article 350-a of the constitution confers a right only on the linguistic minorities only to insist on providing facilities for primary education in their mother tongue, but no right or power is conferred on the state to impose its policy on the linguistic minorities. the state cannot by virtue of this provision compel the linguistic minorities to choose their mother tongue only as medium of instruction in primary school. no such right is conferred on the state by this provision and such a right do not flow from this article. - it was also contended that the suit is bad for misjoinder of parties and cause of action. --(1) has this court territorial jurisdiction to try the present suit in respect of the suit lands in plaint para 1b and defendants 1 and 2? (2) is the suit bad for misjoinder of parties and causes of action? therefore, the court in the state of mysore has no jurisdiction to entertain the suit in respect of properties situate in the state of maharashtra so as to make the decision binding on the subject of the state of maharashtra, he also contended that the suit is bad for multifariousness in that different causes of action have been combined together to claim relief against various defendants and therefore the learned munsiff was in error in holding that he had the jurisdiction to entertain the suit and the same is not bad for multifariousness. three properties were situated in punjab and one property was situate in oudh and the contention was that the suit was bad. joshi that the suit is bad for multifariousness, i. but this contention in my view is not correct, because though there were two alienations, in favour of different persons, yet there is a single cause of action to recover the alienated properties, that is, the death of vasudeo, who, by virtue of the agreement between him and plaintiff, was entitled to use the suit properties in a way he liked and the plaintiff could not have challenged the alienations during vasudeo's lifetime. the suit, as framed, was therefore not bad for multifariousness and was maintainable in cuttack court under section 17 read with o.order(1) this petition under section 115 of the code of civil procedure is directed against the order made by the first additional munsif, belgaum, in regular c. s. no. 168 of 1963 wherein he recorded findings on first two issues relating to the jurisdiction of the court to entertain the suit. he held that the court had the necessary competence and jurisdiction to entertain the suit and it is the correctness of this finding that is being challenged in this petition by the first defendant.(2) the facts which are necessary for the purpose of this case may shortly be stated as follows: one vasudeo was the paternal uncle of the plaintiff. in pursuance of an agreement between the plaintiff and his uncle vasudeo, the suit properties were given to vasudeo's possession for his maintenance and enjoyment during his lifetime only. he had no right to make any disposition of the property beyond his lifetime. vasudeo died in the year 1962. before his death, he mortgaged two lands, revision survey nos. 421 and 457 in favour of the first defendant. these two lands are situate in a place called kowad, which now forms part of the state of maharashtra. another piece of land bearing revision survey no. 335 situate in desur village in belgaum taluka was alienated by him in favour of the father of defendants 3 to 5. these three lands are the subject-matter of the suit. for the sake of brevity, the lands transferred in favour of defendant 1 shall be referred to as kowad lands whereas the land sold to the father of defendants 3 to 5 shall be referred to as desur land.(3) after the death of vasudeo, plaintiff filed the present suit in the year 1963 challenging the transfers of the suit in the year 1963 challenging the transfers of the suit lands made in favour of the defendants as illegal. he, therefore, claimed possession of them after the death of vasudeo.(4) the defendants filed their written statement contesting the claim of the plaintiff. they inter alia contended that the court had no jurisdiction to entertain the suit in respect of kowad lands. it was also contended that the suit is bad for misjoinder of parties and cause of action.(5) issues nos. 1 and 2 relate to these contentions. they are as follows:-- '(1) has this court territorial jurisdiction to try the present suit in respect of the suit lands in plaint para 1b and defendants 1 and 2? (2) is the suit bad for misjoinder of parties and causes of action?'(6) as i stated earlier, the learned munsiff has recorded a finding in favour of the plaintiff on both these issues, and it is the correctness of this finding that is being challenged in this petition by mr. joshi for the petitioner.(7) it is contended by mr. joshi that the court has no territorial jurisdiction to entertain the suit in respect of kowad lands. his contention has been that the kowad lands are situate in the state of maharashtra and the suit is filed in one of the courts in the state of mysore. therefore, the court in the state of mysore has no jurisdiction to entertain the suit in respect of properties situate in the state of maharashtra so as to make the decision binding on the subject of the state of maharashtra, he also contended that the suit is bad for multifariousness in that different causes of action have been combined together to claim relief against various defendants and therefore the learned munsiff was in error in holding that he had the jurisdiction to entertain the suit and the same is not bad for multifariousness.(8) on the other hand, mr. mandgi appearing for the first respondent-plaintiff contends that the court had the jurisdiction to entertain the suit, thus supporting the findings of the court below.(9) the question, therefore, that arises for determination is whether the findings of the trial court in relation to these two issues are correct.(10) the relevant provisions relating to the place of suing are contained in the code of civilprocedure and for our purpose, sections 16 and 17 are relevant. section 16 provides:'subject to the pecuniary or other limitations prescribed by any law, suits.......... (a) for the recovery of immoveable property with or without rent or profits, ............................................................... shall be instituted in the court within the local limits of whose jurisdiction the property is situate.'(11) the word 'property' has been explained to mean property situate in india. this section provides for the institution of a suit in the court in respect of property situate within the local limits of its jurisdiction, whereas section 17, deals with the institution of suits relating to immovable property situate within the jurisdiction of different courts. it reads as follows:--'where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate.''(12) the proviso to this section is not relevant for our purpose. the word 'courts' occurring in this section means courts to which the civil procedure code applies , nrisingha charan nandy v. ranjit prasad singh).(13) thus, from a reading of the section, it would be clear that the courts in india would be competent to entertain the suit in respect of immoveable property situate within the jurisdiction of different courts. the purpose of this section is obviously to avoid the multiplicity of proceedings.(14) mr. joshi, however, in support of his contention that such a suit cannot be entertained, has relied upon a decision in air 1942 all 387, karam singh v. kunwar sen. in that case it is pointed out that there is no apparent connection between the transfer of the amritsar property to amarnath under the will executed by jwaladevi and the subsequent transfer made by him and his successor-in-interest on the one hand and the transfer made by premadevi of the hardwar property on the other hand. it must be admitted also their lordships state that the plaintiffs were not claiming the estate of badiridas as a whole against the rival claimants to the estate. the lordships, therefore, held that there was no cause of action for recovery of the properties from the various defendants. they then referred to the privy council case, nisar ali khan v. mohammad ali khan and stated that the decision supported their conclusions. but this decision can have no application to a case where there is a single cause of action for the institution of the suit challenging the various alienations. they privy council in , took the view that section 17 empowers the court to entertain a suit in respect of immoveable property situate within the jurisdiction of different courts and the word 'courts' as i stated earlier, means the courts to which the code of civil procedure applies. in that case the properties involved were four: three properties were situated in punjab and one property was situate in oudh and the contention was that the suit was bad. their lordships stated that in respect of one property the cause of action was different but the cause of action for the rest of the properties was the same though situate in punjab and oudh and observed :'there remains the question of the khalikabad estate. here the respondent cannot succeed unless he shows that under the terms of the deed creating the wakf he is the trustee. that question depends upon the construction of the deed. it is a separate and different cause of action from those which found the proceedings in respect of the other three properties. their lordships are unable to find any justification for bringing the suit in respect of this property elsewhere than in the court of the district where the property is situate. such justification cannot in their lordships' judgment be found in section 17 of the code of civil procedure upon which the respondent's counsel relied.'(15) thus, it would appear that where there is a single cause of action in respect of properties comprised in the suit situate within the jurisdiction of different courts, a suit may be instituted in a court within the local limits of whose jurisdiction any of the suit property is situate.(16) it is then contended by mr. joshi that the suit is bad for multifariousness, i.e., for having joined different causes of action in the same suit. he contends that the cause of action in relation to kowad property is quite different from the cause of action in respect of desur property. but this contention in my view is not correct, because though there were two alienations, in favour of different persons, yet there is a single cause of action to recover the alienated properties, that is, the death of vasudeo, who, by virtue of the agreement between him and plaintiff, was entitled to use the suit properties in a way he liked and the plaintiff could not have challenged the alienations during vasudeo's lifetime. that being so, it must be held that the cause of action is really one and that is, the death of vasudeo, which gave rise to the cause of action to the plaintiff to recover possession of the properties in possession of the various defendants. such a suit is permissible under r. 3 of o. 1 of the code of civil procedure especially when the evidence to establish the claim in respect of two properties would be the same, namely, the agreement between vasudeo and vinayak and to prove that vasudeo had only a limited right and that he had no power to alienate the properties beyond his lifetime. thus, the same evidence has to be led to sustain the plaintiff's claim in challenging the alienations made in favour of both sets of defendants. in somewhat similar circumstances if was held in basant priyadei v. ramkrishna das. : air1960ori159 that--'in the suit, as framed, there would arise a common question of law and fact, and would incidentally affect the properties which happen to be situated both within cuttack and kendrapare jurisdictions. the suit, as framed, was therefore not bad for multifariousness and was maintainable in cuttack court under section 17 read with o.1 r.3.'(17) to the same effect is the full bench decision of the nagpur high court air 1952 nag 303, ramdhin v. thankuran dulaiya. this decision of the bagpur high court was followed by the high court of orissa and the decision of allahabad high court in air 1942 all 387 was dissented from.(18) mr. joshi has also brought to my notice a decision reported in : air1964pat79 , where their lordships had to consider the provision of section 17 of the code of civil procedure. their lordships referred to the privy council case and other decisions including that of air 1942 all 387. their lordships did not approve the ratio decided of the nagpur case, i.e, air 1952 nag 303 (fb). thus, it is stated by mr. joshi that indirectly they did approve the decision of the allahabad high court. but, with great respect, the correct rule of law in my view is that where there is a single cause of action to recover properties situate within the jurisdiction of different courts, a suit can be filed in any one of the courts within the jurisdiction of which any one of the suit property is situate. that being so, the view taken by the trial court is correct and the same must be affirmed.(19) in the result, i confirm the findings of the trial court and dismiss this petition with costs.(20) bnp/d.v.c.(21) petition dismissed

Judgment:
ORDER

(1) This petition under Section 115 of the Code of Civil Procedure is directed against the order made by the First Additional Munsif, Belgaum, in Regular C. S. No. 168 of 1963 wherein he recorded findings on first two issues relating to the jurisdiction of the Court to entertain the suit. He held that the Court had the necessary competence and jurisdiction to entertain the suit and it is the correctness of this finding that is being challenged in this petition by the first defendant.

(2) The facts which are necessary for the purpose of this case may shortly be stated as follows: One Vasudeo was the paternal uncle of the plaintiff. In pursuance of an agreement between the plaintiff and his uncle Vasudeo, the suit properties were given to Vasudeo's possession for his maintenance and enjoyment during his lifetime only. He had no right to make any disposition of the property beyond his lifetime. Vasudeo died in the year 1962. Before his death, he mortgaged two lands, revision survey Nos. 421 and 457 in favour of the first defendant. These two lands are situate in a place called Kowad, which now forms part of the State of Maharashtra. Another piece of land bearing revision survey No. 335 situate in Desur village in Belgaum Taluka was alienated by him in favour of the father of defendants 3 to 5. These three lands are the subject-matter of the suit. For the sake of brevity, the lands transferred in favour of defendant 1 shall be referred to as Kowad lands whereas the land sold to the father of defendants 3 to 5 shall be referred to as Desur land.

(3) After the death of Vasudeo, plaintiff filed the present suit in the year 1963 challenging the transfers of the suit in the year 1963 challenging the transfers of the suit lands made in favour of the defendants as illegal. He, therefore, claimed possession of them after the death of Vasudeo.

(4) The defendants filed their written statement contesting the claim of the plaintiff. They inter alia contended that the Court had no jurisdiction to entertain the suit in respect of Kowad lands. It was also contended that the suit is bad for misjoinder of parties and cause of action.

(5) Issues Nos. 1 and 2 relate to these contentions. They are as follows:--

'(1) Has this Court territorial jurisdiction to try the present suit in respect of the suit lands in plaint para 1B and defendants 1 and 2?

(2) Is the suit bad for misjoinder of parties and causes of action?'

(6) As I stated earlier, the learned Munsiff has recorded a finding in favour of the plaintiff on both these issues, and it is the correctness of this finding that is being challenged in this petition by Mr. Joshi for the petitioner.

(7) It is contended by Mr. Joshi that the Court has no territorial jurisdiction to entertain the suit in respect of Kowad lands. His contention has been that the Kowad lands are situate in the State of Maharashtra and the suit is filed in one of the Courts in the State of Mysore. Therefore, the Court in the State of Mysore has no jurisdiction to entertain the suit in respect of properties situate in the State of Maharashtra so as to make the decision binding on the subject of the State of Maharashtra, he also contended that the suit is bad for multifariousness in that different causes of action have been combined together to claim relief against various defendants and therefore the learned munsiff was in error in holding that he had the jurisdiction to entertain the suit and the same is not bad for multifariousness.

(8) On the other hand, Mr. Mandgi appearing for the first respondent-plaintiff contends that the Court had the jurisdiction to entertain the suit, thus supporting the findings of the Court below.

(9) The question, therefore, that arises for determination is whether the findings of the trial Court in relation to these two issues are correct.

(10) The relevant provisions relating to the place of suing are contained in the Code of Civil

Procedure and for our purpose, Sections 16 and 17 are relevant. Section 16 provides:

'Subject to the pecuniary or other limitations prescribed by any law, suits..........

(a) for the recovery of immoveable property with or without rent or profits,

............................................................... shall be instituted in the Court within the local limits of whose jurisdiction the property is situate.'

(11) The word 'property' has been explained to mean property situate in India. This section provides for the institution of a suit in the Court in respect of property situate within the local limits of its jurisdiction, whereas Section 17, deals with the institution of suits relating to immovable property situate within the jurisdiction of different Courts. It reads as follows:--

'Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate.''

(12) The proviso to this section is not relevant for our purpose. The word 'Courts' occurring in this section means Courts to which the Civil Procedure Code applies , Nrisingha Charan Nandy v. Ranjit Prasad Singh).

(13) Thus, from a reading of the section, it would be clear that the Courts in India would be competent to entertain the suit in respect of immoveable property situate within the jurisdiction of different courts. The purpose of this section is obviously to avoid the multiplicity of proceedings.

(14) Mr. Joshi, however, in support of his contention that such a suit cannot be entertained, has relied upon a decision in AIR 1942 All 387, Karam Singh v. Kunwar Sen. In that case it is pointed out that there is no apparent connection between the transfer of the Amritsar property to Amarnath under the will executed by Jwaladevi and the subsequent transfer made by him and his successor-in-interest on the one hand and the transfer made by Premadevi of the Hardwar property on the other hand. it must be admitted also their Lordships state that the plaintiffs were not claiming the estate of Badiridas as a whole against the rival claimants to the estate. The Lordships, therefore, held that there was no cause of action for recovery of the properties from the various defendants. They then referred to the Privy Council case, Nisar Ali Khan v. Mohammad Ali Khan and stated that the decision supported their conclusions. But this decision can have no application to a case where there is a single cause of action for the institution of the suit challenging the various alienations. They Privy Council in , took the view that Section 17 empowers the Court to entertain a suit in respect of immoveable property situate within the jurisdiction of different Courts and the word 'Courts' as I stated earlier, means the Courts to which the Code of Civil Procedure applies. In that case the properties involved were four: three properties were situated in Punjab and one property was situate in Oudh and the contention was that the suit was bad. Their Lordships stated that in respect of one property the cause of action was different but the cause of action for the rest of the properties was the same though situate in Punjab and Oudh and observed :

'There remains the question of the Khalikabad estate. Here the respondent cannot succeed unless he shows that under the terms of the deed creating the Wakf he is the trustee. That question depends upon the construction of the deed. It is a separate and different cause of action from those which found the proceedings in respect of the other three properties. Their Lordships are unable to find any justification for bringing the suit in respect of this property elsewhere than in the Court of the District where the property is situate. Such justification cannot in their Lordships' judgment be found in Section 17 of the Code of Civil Procedure upon which the respondent's counsel relied.'

(15) Thus, it would appear that where there is a single cause of action in respect of properties comprised in the suit situate within the jurisdiction of different Courts, a suit may be instituted in a Court within the local limits of whose jurisdiction any of the suit property is situate.

(16) It is then contended by Mr. Joshi that the suit is bad for multifariousness, i.e., for having joined different causes of action in the same suit. He contends that the cause of action in relation to Kowad property is quite different from the cause of action in respect of Desur property. But this contention in my view is not correct, because though there were two alienations, in favour of different persons, yet there is a single cause of action to recover the alienated properties, that is, the death of Vasudeo, who, by virtue of the agreement between him and plaintiff, was entitled to use the suit properties in a way he liked and the plaintiff could not have challenged the alienations during Vasudeo's lifetime. That being so, it must be held that the cause of action is really one and that is, the death of Vasudeo, which gave rise to the cause of action to the plaintiff to recover possession of the properties in possession of the various defendants. Such a suit is permissible under R. 3 of O. 1 of the Code of Civil Procedure especially when the evidence to establish the claim in respect of two properties would be the same, namely, the agreement between Vasudeo and Vinayak and to prove that Vasudeo had only a limited right and that he had no power to alienate the properties beyond his lifetime. Thus, the same evidence has to be led to sustain the plaintiff's claim in challenging the alienations made in favour of both sets of defendants. In somewhat similar circumstances if was held in Basant Priyadei v. Ramkrishna Das. : AIR1960Ori159 that--

'In the suit, as framed, there would arise a common question of law and fact, and would incidentally affect the properties which happen to be situated both within Cuttack and Kendrapare jurisdictions. The suit, as framed, was therefore not bad for multifariousness and was maintainable in Cuttack Court under Section 17 read with O.1 R.3.'

(17) To the same effect is the Full Bench decision of the Nagpur high Court AIR 1952 Nag 303, Ramdhin v. Thankuran Dulaiya. This decision of the Bagpur high Court was followed by the High Court of Orissa and the decision of Allahabad High Court in AIR 1942 All 387 was dissented from.

(18) Mr. Joshi has also brought to my notice a decision reported in : AIR1964Pat79 , where their Lordships had to consider the provision of Section 17 of the Code of Civil Procedure. Their Lordships referred to the Privy Council case and other decisions including that of AIR 1942 All 387. Their Lordships did not approve the ratio decided of the Nagpur case, i.e, AIR 1952 Nag 303 (FB). Thus, it is stated by Mr. Joshi that indirectly they did approve the decision of the Allahabad High Court. But, with great respect, the correct rule of law in my view is that where there is a single cause of action to recover properties situate within the jurisdiction of different Courts, a suit can be filed in any one of the Courts within the jurisdiction of which any one of the suit property is situate. That being so, the view taken by the trial Court is correct and the same must be affirmed.

(19) In the result, I confirm the findings of the trial Court and dismiss this petition with costs.

(20) BNP/D.V.C.

(21) Petition dismissed