Mana and anr. Vs. Ujal Bisi and ors. - Court Judgment

R.N. Misra, J.

1. The defendants 1 and 2 have come with this appeal against the reversing decision of the learned Subordinate Judge of Barsarh. The plaintiffs sued for title in respect of 4.59 acres of land shown in the Ka schedule of the plaint. Their source of title was indicated to be a sift deed made by the defendant No. 10 subsequently transposed as the plaintiff No. 4 on 30-1-61 (Ext. 5).

2. One Maheswar Bisi had four sons Gour, Bhara Sama and Dama. The plaintiff No. 1 is the daughter of Dama while the plaintiff No. 2 is the grand-daughter of Sama and the plaintiff No. 3 is the daughter of Gour. As already stated the plaintiff No. 4 (original defendant No. 10) is the widow of Ratna who happens to be the son of Bharat. The plaintiffs contended that the property in dispute belonged to Bharat and had been inherited by Ratna. Ratna died more than 30 years prior to the litigation. His widow, the plaintiff No. 4, got herself mutated and was in possession. She made a gift under Ext. 5 in favour of the plaintiffs 1 to 3. The defendants 1 and 2 created trouble over possession of the property. A proceeding under section 145 Cr. P. C. followed and terminated in favour of the defendants. Therefore, the plaintiffs came to courtasking for declaration of their title and for recovery of possession. They contended that in case any part of the property was under mortgage it be declared that the mortgage has been redeemed by operation of law under the provisions of the Orissa Money Lenders Act.

3. The defendants 1 and 2 alone contested. Their defence was that though the property belonged to Ratna some of these properties were mortgaged by him to Bhunja Jhankar in February 1920 and in March 1923. They specified the details of such properties in their written statement. The properties were mortgaged from time to time with the defendants and, those that were not covered by the mortgage were permanently leased out by Ratna to the father of the defendants1 and 2 in the vear 1928. Ever since then the defendants remained in possession. In the written statement the property in dispute was indicated in two schedules--one covered by the lease and the other covered by the mortgage. They pleaded loss of title of the plaintiffs or their donor as they had no possession within the statutory period.

4. The learned trial Judge found that the defendant No. 10 was the widow of Ratna and the alleged lease of the Kha schedule lands of the written statement was invalid, but there was long adverse possession of the defendants. In regard to the Ka schedule properties he came to hold that by operation of law the mortgage had been redeemed long back and possession of the defendants had become adverse. He further found that Ext. 5 conveyed no title because by then the donor had no title in the property. He also found that the civil court had jurisdiction to entertain the suit in respect of the mortgaged lands constituting the Ka schedule of the written statement. He accordingly dismissed the suit.

5. Upon appeal the learned Subordinate Judge found that there could be no adverse possession in regard to the mortgaged lands until the mortgage was redeemed. He maintained the finding of the trial court that the civil court had jurisdiction to deal with the relief relating to the mortgage and section 17 (2) of the Orissa Money Lenders Act was no bar to the suit. In regard to the Kha schedule property of the written statement (the lease-hold) he came to hold that the defendants had failed to prove the plea of adverse possession. He accordingly reversed the decree and decreed the suit in regard to both the lots. Against this reversing decree the defendants 1 and2 are in appeal.

6. The disputed property is covered by Khunti No. 47 of village Laisira. 1.69 acres is covered by the plea of mort-gage and 2.90 acres is covered by the alleged leasehold. Mr. Mohapatra for the appellants has raised two contentions. The first one is in relation to the want of jurisdiction of the civil court to entertain the question of mortgage and its automatic redemption by operation of law. The second one is that the conclusion of the learned Appellate Judge in regard to possession of the lease-hold lands and his negativing the plea of adverse possession cannot be sustained in law.

7. Let me deal with the second point first. There is no dispute that the entire property belonged to Ratna. The finding that the defendant No. 10 (plaintiff No. 4) is the widow of Ratna is not disputed. In normal course the widow would have succeeded her husband. The plaintiffs have come forward with a deed of sift from the widow and the validity of this deed of sift (Ext. 5) is not being impugned. Thus in usual course the donees under Ext. 5, that is the plaintiffs would have obtained good title to the property. The defendants raised a plea of loss of title in the donor by adverse possession. The burden, therefore, lay on the defendants to establish by cogent evidence their possession. The learned Appellate Judge took into consideration the oral evidence as also the rent receipts. He rightly did not attach any importance to the finding of the criminal court in the Section 145 proceeding relating to possession and ultimately concluded,

''Thus, judging the evidence of possession op either side. I am rather inclined to hold that plaintiff's evidence of possession of the Kha schedule lands of the written statement is more satisfactory than that of the contesting defendants. Even assuming that evidence of possession on either side is weak and evenly balanced the plaintiff's possession has to be upheld since plaintiffs have not title.'

He drew the presumption from the principle 'possession follows title' and concluded by saving.

'I hold that the plaintiffs were in possession of the suit Kha schedule of the written statement within 12 years of the suit and they have not lost title to the same.'

8. Thus, there is a clear conclusion relating to subsisting title of the plaintiffs and their donor in regard to the leasehold lands. In Second Anneal a different view is not open to be taken in the facts and circumstances of the case. I would accordingly affirm the decree of the lower appellate court in regard to the lease-hold.

9. The first question relating to mortgage may now be taken up. Mr. Mohapatra concedes that the learned Appellate Judge was right in holding that there could be no adverse possession in regard to the lands under mortgage. In a recent case I had occasion to examine the legal position and I had come to the same conclusion as the learned Trial Judge in this case has. As Mr. Mohapatra accepts that conclusion to be the correct position in law the legal principle does not require re-examination. The challenge, however, in regard to this matter is on a different count. Reliving upon the provisions of Section 17 (2) of the Orissa Money Lenders Act Mr. Mohapatra contends that the civil court has no jurisdiction. That provision is to the following effect:

'When the mortgagor is a member of a backward tribe as described in Part VI of the Thirteenth Schedule to the Government of India (Provincial Legislative Assembly) Order. 1936, the Special Assistant Agent, the Sub-divisional Magistrate or any other officer specially empowered in this behalf by the District Magistrate, the Deputy Commissioner or the Agent to the State Government, as the case may be. may, either on application by any one interested or on his own motion, if he is satisfied on a summary enquiry that the mortgage shall be deemed to stand discharged under Sub-Section (1). decree ejectment against any person, in possession of the property claiming under the mortgage and mayrestore it to the mortgagor or his heirs;

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There is no dispute that the plaintiffs or' their donor are members of a backward tribe as described in Sub-section (2) of section 17 of the Act. The question for examination is as to whether the Civil Court's jurisdiction to grant relief of redemption is ousted or barred by Sub-section (2) of section 17 of the Act. Indisputably the matter by its own tenor is one over which the civil court would have jurisdiction by virtue of the provisions of Section 9 C. P. C. Does then subsection (2) of section 17 of the Act impliedly take away that jurisdiction? The answer to this Question would furnish the conclusion to be reached on the contention of Mr. Mohapatra. Courts in this country as well as in England have found the test laid down by Willes. J. in the case of Wolverhampton New Water Works Co. v. Hawkesford. (1859) 6 C. B. (N. S) 336 useful to determine a dispute of this type, That learned Judge laid down the dictum thus:

'There are three classes of cases in Which a liability may be established founded upon statute. One is where there was a liability existing at common law and that liability is affirmed by a statutewhich Gives a special and peculiar form of remedy different from the remedy which existed at common law; there unless the statute contains words which expressly or by necessary implication excludes the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases, is where the statute gives the right to sue merely, but provides no particular form of remedy: there the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.'

This dictum has been approved expressly in a series of cases both of the Judicial Committee 'of the Priw Council and by the Supreme Court (see Secy. of State v. Mask & Co. AIR 1940 PC 105. Firm Radha Kishan v. Ludhiana Municipality AIR 1963 SC 1547. Pabhojan Tea Co. Ltd. v. Deputy Commr. Lakhimpur. AIR 1968 SC 271 and Dhulabhai v. State of M. P.. AIR 1969 SC 78).

With respect to the second of the three classes of cases mentioned above there is normally no difficulty. A statute falling in this category prescribes no special remedy and whether it creates new rights and liabilities or regulates the already existing ones, the normal remedy through the medium of civil courts which are courts of general jurisdiction remains always open. With respect to the first and the third of the three classes of cases mentioned in the dictum it has to be ascertained whether the statute in question deals with and regulates an already existing right or liability, or whether it creates a new right or liability which has no existence apart from the statute. If the provision is of the former category, the special remedy provided therein subject to any provision for the exclusion of ordinary remedy, will only be construed as an alternative one whereas if the provision is of the latter category, the remedy will be construed as exclusive even though the statute makes no express provision for exclusion of ordinary remedy. Thus the mere fact that a statute provides for certain remedies does not by itself necessarily exclude the jurisdiction of civil courts, but where a new right or liability is created by a statute which gives a special remedy for enforcing it the ordinary remedy of approaching the civil courts is impliedly excluded.

In various cases that came for examination before their Lordships of theSupreme Court this test has been applied and on each occasion by application oi this test exclusion or existence of jurisdiction has been determined.

The right to redeem a mortgage has been provided for under the T. P. Act and is not one created under Section 17 of the Orissa Money Lenders Act. Section 17 deals with the manner or a particular mode of redemption. The legislature has fixed a period with respect to usufructuary mortgages and has declared that by lapse of time in an automatic manner such mortgages would stand redeemed. The section therefore, deals with discharge of possessory mortgages. Thus no new right or liability can be said to have been created under section 17 of the Act. It is really an instance where certain remedies have been provided, but not that any new rieht or liability is created.

Analysed by this test section 17 of the Orissa Money Lenders Act makes a provision to which the first rule of the dictum is applicable. Redemption was existing at common law. That liability is affirmed by the Act, but section 17 provides a peculiar form of remedy different from the remedy which existed at common law. As there is no express or implied ouster of the jurisdiction of the civil court, the remedy under the Act is only an additional one. Option is left to, the party asking for assistance of the court to choose the ordinary forum of the civil court or the special forum created under the statute. Mr. Mohapatra contended that the third rule of the dictum, was applicable while Mr. Rath contended that the first rule of the dictum applied. To the facts of the present case I am of the definite view that the first rule of the dictum applies and not the third. Therefore, the jurisdiction of the civil court cannot be taken to have been ousted. Additional support for this conclusion is available from the fact that under Sub-section (2) jurisdiction is vested in the named authorities to take action suo motu. Thus Sub-section (2) of section 17 of the Act is of an enabling nature and even where the aggrieved party takes no action jurisdiction is vested in the named authority to take cognizance of discharge of the mortgage and secure possession for the member of the backward tribe. Subsection (2) is not intended to provide a bar of jurisdiction but is implanted into the statute essentially as conferring speedier and less costly remedy for a particular class of society which according to the legislature requires protection.

10. The learned counsel on either side had referred to a number of authorities and had attempted to analyse the point from some other angles. I find noneed to notice them because the correct proposition to lay down to my mind has already been urged and once the proper approach is found out, the test is clear and the result is conclusive it is unnecessary to introduce other elements which do not add any clear support to that process.

11. I would accordingly hold that the civil court had jurisdiction to entertain the suit for redemption. Both the points raised by the appellants fail. The second appeal is accordingly dismissed. Since an interesting question was raised. I do not think it would be proper to saddle the, appellants with costs.